The Issue Whether Respondent, Walt Disney World, violated Section 760.08, Florida Statutes (2006), as alleged in the Petition for Relief in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a Caucasian male, born in Puerto Rico. He is an amateur photographer. He had visited Walt Disney World at least ten times prior to December 1, 2006. Respondent owns and operates a theme park in Orange and Osceola Counties, Florida. Respondent employs individuals with the job title, "security host," with the responsibility of maintaining security in the theme park. This category of employees is licensed by the State of Florida, and they receive training in "abnormal behavior of guests," threat analysis, surveillance, intelligence, and other job-related skills incidental to maintaining a safe environment within the theme park. Respondent has a specific protocol regarding theme park guests exhibiting "abnormal behavior." In the context of this case, taking photographs in the theme park is not an "abnormal behavior." In fact, guests are encouraged to photograph those accompanying them and various theme park characters, e.g., Mickey Mouse. However, excessive photographing of structures, "mapping or progression photography," is considered "abnormal behavior." "Mapping" consists of taking pictures in a progression, so as to familiarize someone who has never been to an area with the layout of that area and is considered very unusual behavior. Petitioner entered the Magic Kingdom, part of Respondent's theme park, on December 1, 2006. A security host observed Petitioner photographing the main entrance and security bag check. Petitioner was unaccompanied. The subject matter and manner of Petitioner's photography was considered to be "abnormal" by the security host. Once a security cast member identifies potentially abnormal behavior by a guest, the protocol requires the security host to contact a member of management (by radio) and continue to observe the guest. Petitioner moved further into the Magic Kingdom and took photographs of Main Street and City Hall. Because Petitioner was limiting his photography to structures, the security host's initial impression that Petitioner was doing something "abnormal" was reinforced and, in accordance with the established protocol, he again called management. As further dictated by Respondent's security protocol, the uniformed security host is then met by an "undercover" security host whose job-responsibility is "real-time threat analysis." The "threat-analysis" security host continued to observe Petitioner as he took what was interpreted by the security host to be "panoramic" photographs of Town Square and "mapping" photographs of the interior of the train station. He, too, assessed Petitioner's photographic activities as "abnormal." Because the "threat analysis" security host concurred with the initial determination of "abnormal," the security protocol dictates that a security manager make contact with the guest. This was done in a discreet and unobtrusive manner. The security manager identified himself as an employee of Respondent and asked Petitioner if "he could do anything to assist him." Petitioner did not respond, so the security manager repeated himself. Respondent responded that he "was not an Arab terrorist," or words to that effect. His response was louder than conversational, and he appeared to be agitated. Because Petitioner was uncooperative, the security manager called a uniformed law enforcement officer, an Orange County, Florida, deputy sheriff, as dictated by Respondent's security protocol. The deputy sheriff asked for, and received, Petitioner's driver license. After a license check revealed that Petitioner's address was valid, he was allowed to pursue his activities in the theme park. His interaction with the security manager and deputy sheriff lasted approximately 15 minutes. Petitioner then returned to his theme park photography without limitation and spent an additional two hours in the theme park, until his camera's battery pack ran down. He did not have any further interaction with Respondent's security personnel, nor was he kept under surveillance. Petitioner returned to Respondent's theme park on December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had access to all facilities without difficulty, and had no encounters with Respondent's security personnel. The incident that occurred on December 6, 2006, was a result of Petitioner's photography being identified as "abnormal." There is no evidence that it was precipitated by his national origin or that Respondent was not exercising reasonable diligence in an effort to protect theme park visitors and employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Jose M. Gandia, failed to present a prima facie case of discrimination based on national origin, and, therefore, this matter should be dismissed in its entirety and a determination be entered by the Florida Commission on Human Relations that Respondent, Walt Disney World, did not violate the provisions of Chapter 760, Florida Statutes, as alleged in the Petition for Relief. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of March, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jose M. Gandia 3054 Holland Drive Orlando, Florida 32825 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956
The Issue Whether Respondent violated Section 112.3148(3), Florida Statutes, by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact Respondent, John Pollet (Pollet), served continuously as Mayor of Kissimmee from November 1, 1991, until he was suspended in 1995. As Mayor, Pollet was a voting member of the City Commission and signed contracts the city entered. At all times relevant to the instant case, George Geletko was employed as the Municipal Marketing Manager with Waste Management, Inc. Mr. Geletko's primary responsibility was to make sure that contracts between Waste Management, Inc., and its municipal customers were properly administered. Waste Management, Inc., had a contract with the City of Kissimmee to provide waste disposal services that was scheduled to expire in 1994. However, on September 6, 1994, the City of Kissimmee renewed its contract with Waste Management, Inc. Mr. Geletko was responsible for administering Waste Management's contract with the City of Kissimmee and was the contact person between Waste Management, Inc., and the City of Kissimmee. As the Municipal Marketing Manager for Waste Management, Inc., Mr. Geletko sought to influence or encourage the Kissimmee City Commission and Pollet to do business with his company. In order to accomplish this, Mr. Geletko, in his position with Waste Management, Inc., took actions that directly or indirectly furthered or communicated his intention to influence or encourage the Kissimmee City Commission and Pollet to do business with Waste Management, Inc. In the spring of 1994, during a telephone conversation, Pollet asked Mr. Geletko if Waste Management, Inc., had any tickets to an Orlando Magic basketball game. Mr. Geletko did not respond directly to Pollet's inquiry, but stated that "whatever we did, we would have to be in compliance with all ordinances and the State Code of Ethics." Pollet told Mr. Geletko that he would get back with him. However, no further inquiry regarding Orlando Magic tickets was made by Pollet to Mr. Geletko. At the time Pollet asked about Orlando Magic basketball tickets, he believed Mr. Geletko had taken former City Commissioner Richard Herring to a Magic game at some point prior to his inquiry. Pollet testified that the inquiry regarding Orlando Magic basketball tickets was made based on personal political considerations involving former City Commissioner Herring, who was sometimes an ally and sometimes a foe of Respondent in matters relating to City politics. However, Pollet gave no such explanation to Mr. Geletko during their conversation involving Orlando Magic basketball tickets. Based on Pollet's inquiry, Mr. Geletko felt that Pollet was asking him for tickets to the Orlando Magic game. Mr. Geletko, as a representative of Waste Management, Inc., gave gifts, including golf games and meals, to Pollet both before and after Respondent asked him about the Orlando Magic Tickets. Pollet's approach to Mr. Geletko was a solicitation for tickets. At all times relevant to the instant case, Charles Voss was a vice president with Camp, Dresser, and McKee, an environmental engineering firm. Camp, Dresser, and McKee had two contracts with the City of Kissimmee to provide engineering services. The City of Kissimmee and Camp, Dresser, and McKee entered into one such contract on November 2, 1993. Mr. Voss was responsible for marketing Camp, Dresser, and McKee's services to the City of Kissimmee. Mr. Voss sought to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser and McKee. To this end, Mr. Voss took actions that directly or indirectly furthered or communicated his intentions to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser, and McKee. In March 1993, Pollet called Mr. Voss and asked him if Camp, Dresser, and McKee had any tickets to the Nestle Invitational Golf Tournament. Mr. Voss told Pollet that his firm did not have tickets to the 1993 Nestle Invitational Golf Tournament. Based on Respondent's question, Mr. Voss thought Respondent was asking him for tickets to the golf tournament. Pollet testified that he asked about the passes because he wanted to know if Mr. Voss was going to attend the tournament. According to his testimony, Pollet thought that if Mr. Voss were going to the golf tournament, they could meet there. Notwithstanding his testimony, Pollet never asked Mr. Voss whether he was going to the tournament. In both 1994 and 1995, Pollet accepted passes to the Nestle Invitational Golf Tournament as gifts from Mr. Voss and Camp, Dresser, and McKee. Mr. Voss gave these golf tournament passes to Pollet because Pollet expressed an interest in the tournament in 1993. Pollet did not pay for the golf tournament passes he received from Mr. Voss in 1994 and 1995. Mr. Voss, as a representative of Camp, Dresser, and McKee, had given Pollet various gifts in the past. Except for partial payment for certain tickets, Pollet has never paid for any of these gifts. Respondent's approach to Mr. Voss was a solicitation for tickets to the 1993 Nestle Invitational Golf Tournament. Respondent admits he has accepted gifts from both Waste Management, Inc., and Camp, Dresser, and McKee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that Respondent, John Pollet, violated Section 112.3148(3), Florida Statutes; imposing a civil penalty of $1,000.00 per violation; and issuing a public censure and reprimand. DONE and ENTERED this 1st day of November, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996. COPIES FURNISHED: Eric S. Scott, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Mark Herron, Esquire 216 South Monroe Street Tallahassee, Florida 32301 Bonnie Williams, Executive Director 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman Complaint Coordinator Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether Petitioners' request to negotiate or competitively bid for a concession for amusement devices at service areas on the Florida Turnpike should be granted, pursuant to Section 340.091, Florida Statutes. This proceeding arose as a result of Respondent Department of Transportation's denial of the request of Petitioners Florida Sunshine Parkway Citrus, Inc. and Joe A. Chambliss to negotiate or competitively bid for a concession to install and operate video amusement machines at the various service plazas of the Florida Turnpike. Sunshine Parkway Restaurants, Inc. petitioned for leave to intervene in the proceedings and was granted status as an intervenor. Posthearing submissions by the parties in the form of proposed recommended orders have been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact On June 1, 1982, Petitioner Florida Sunshine Parkway Citrus, Inc. entered into two agreements with Respondent Department of Transportation under which Petitioner was granted a five-year license to manage and operate the citrus products shops located at the Pompano and Fort Pierce service plazas on the Florida Turnpike, pursuant to Section 340.091, Florida Statutes. The agreements provided that the shops would be used for the sale of products "relating to Florida citrus and/or goods promoting the State of Florida, including but not limited to all Florida products and tropical juices." Petitioner was awarded the contracts as a result of a competitive bidding process. Petitioner Joe A. Chambliss is the president of Florida Sunshine Parkway Citrus, Inc. Chambliss also is a sub-lessee of two Texaco Service Stations at the Fort Pierce and Snapper Creek service plazas. (Testimony of Chambliss; Respondent's Exhibits 10-19, Joint Exhibit 1 (Stipulation)) On November 29, 1978, Respondent entered into an agreement with Intervenor Gladieux Food Services, Inc. and Canteen Corporation (Gladieux) whereby Respondent leased certain portions of buildings at eight service plazas on the Sunshine State Parkway (Florida Turnpike) for a period of ten years to operate and manage food and related facilities at the leased premises. Sunshine Parkway Restaurants, Inc. is a joint venture of Gladieux/Canteen. The lease provided that Gladieux would have the exclusive use of the areas designated as restaurants for the purposes of serving food, nonalcoholic beverages and "related merchandise." The agreement provided that Gladieux would have non- exclusive use, but maintenance responsibilities for parking areas, restrooms, and the lobby and vending areas. The agreement further provided that Respondent would have the exclusive right to approve the items to be sold, and required Gladieux to furnish all vending machines required for operating a vending center in designated vending areas. Gladieux was awarded the contract as a result of a competitive bidding process. (Testimony of Owen, Petitioner's Exhibit 9, Respondent's Exhibit 1, Joint Exhibit 1 (Stipulation)) In addition to the agreements with petitioner to operate citrus products shops, other contracts for such shops at the other service plazas are operated by licensees as a result of a competitive bid process. Similarly, all contracts for the sale of motor fuel at the various service plazas were awarded as the result of competitive bids. Respondent also has an existing license agreement with Florida Folder Distributing Company to operate an information leaflet rack at six of the seven service plazas where informational material promoting facilities and points of interest in the state are made available to the public. This agreement also was entered into after competitive bidding. The information racks are located in the lobby or corridor areas of the service plazas. (Testimony of Owen, Petitioner's Exhibits 5-8, Joint Exhibit 1(Stipulation)) Vending machines are operated by Gladieux at the various service plazas of the Turnpike. They include food and drink machines, machines that produce wax figures, and photograph machines. Most of the vending machines are located in the restaurant areas, but those at the Pompano and West Palm Beach plazas are placed in the "common areas" of the plazas. (Testimony of Chambliss, Owen, Petitioner's Exhibits 5-6, Respondent's Exhibits 2 g and h) In 1981, Section 340.091(1), Florida Statutes, was amended to permit the granting of concessions on the Turnpike for amusement machines which operate by the application of skill. Gladieux submitted a proposal to Respondent to install video game machines in appropriate areas under its lease. Respondent's General Counsel advised Mr. C. H. Owen, Deputy Director of Maintenance, in June, 1981, that Chapter 340, Florida Statutes, did not require competitive bidding for such a concession. Respondent's Turnpike engineer advised Owen, in November, 1981, that Gladieux's proposal to install and operate some 35 machines for a 12-month trial period at an acceptable rental fee should be accepted, and that the program should be evaluated at the expiration of the trial period. He further told Owen that if a satisfactory rental fee could not be negotiated at a satisfactory fee at the end of the one-year trial period, the operation should be offered for public bidding. Respondent and Gladieux thereafter on December 20, 1981, entered into an agreement whereby Respondent was granted the right to install and operate 35 amusement devices at individual locations to be designated by Respondent. The agreement was for one year and provided that Gladieux would pay Respondent 22.51 percent of the gross revenue from the operation of the devices, plus 4 percent tax. The agreement stated that the operation of the amusement devices was on an experimental basis and contained the statement that "Operator is currently lessee of the only space suitable for the installation of such devices and is prepared to cooperate with the department." Respondent's reason for negotiating with Gladieux was due to the fact that it "controlled" the vending machine and foyer areas under the lease, and that the video game machines were "vending" machines within the vending machine provisions of the lease. However, it was recognized that the lease provisions were originally intended only to apply to food and drink vending machines. Further, Respondent's General Counsel had opined prior to the 1981 amendment to Section 340.091(1) that a contract to install pinball machines or other electronic games on the Turnpike was specifically prohibited by that provision. Expert opinion testimony was received at the hearing that a video game machine is a "vending" machine because it is a coin-operated device that dispenses either goods or services. Although Respondent's officials were of the view that the provision of video machines was within the purview of the vending machine provisions of the lease, it entered into a separate agreement because it wanted a one-year trial period to determine the public's acceptance of the machines, and also to determine if they would be detrimental from the standpoint of congestion and noise level. Respondent preferred that the machines be located in the restaurant areas, where possible. This was a major reason for contracting with Gladieux because it controlled the restaurant areas under its lease. Another reason was that Gladieux operated the restaurants 24 hours each day and thus its personnel were always available to handle maintenance problems. (Testimony of Owen, Mizerski, Petitioner's Exhibits 11-12, Respondent's Exhibits 3-4, 8) Gladieux proceeded to place video machines pursuant to the agreement and with the approval of Respondent in the various service plazas along the Turnpike. Most were placed in the restaurant areas, but in several service plazas the machines were placed in the vending areas outside of the restaurants. (Testimony of Owen, Petitioner's Exhibits 5-6, Respondent's Exhibits 2 g and h, 9) Chambliss was aware in early 1981 that video games had been placed in several of the Turnpike service plazas, and later became aware that Respondent had a one-year experimental agreement with Gladieux. By letter of September 13, 1982, Chambliss requested that Respondent provide him the opportunity to contract for installing electronic game machines on the Turnpike. Respondent's Turnpike engineer informed him that a decision would be made in November, 1982, as to whether to eliminate or extend the current contract, but that he would be kept apprised as to the matter. Also, by letter of October 18, 1982, Gladieux requested that its agreement with Respondent be extended to the termination date of its existing restaurant lease in 1988, and pointed out that it had made a substantial investment of about $135,000 in providing the video machines and game rooms. Respondent thereafter determined that the experimental operation of video games had been successful, and advised Gladieux on November 19, 1982, that it would entertain a formal proposal to continue operation of the machines by an addendum agreement to its existing restaurant lease. (Testimony of Owen, Chambliss, Petitioner's Exhibits 1-2, 10, 13-15) Chambliss submitted a proposal to Respondent on November 29, 1982, to either compete with Gladieux for a contract to operate amusement devices at all service plazas, or to allow him to operate machines at the Pompano and Fort Pierce plazas where he held citrus shop licenses. On December 17, 1982, Respondent denied the request as being improper because of the provisions in the one-year agreement with Gladieux to extend the period for operation of machines if the one-year trial period proved successful, and also because the restaurant contract with Gladieux included all the areas in the service plazas except for citrus product shops and service stations. The letter informed Chambliss of his right to file a notice of protest within 72 hours. Chambliss proceeded to do so on December 22 and thereafter filed its petition for hearing. On December 29, 1982, Respondent and Gladieux entered into an extension to its one-year agreement to January 20, 1983, pending resolution of Chambliss' protest. However, negotiations with Gladieux are still in progress concerning the percentage of revenues to be paid by Gladieux under any subsequent amendment to its lease with regard to the video game operations. (Testimony of Owen, Chambliss, Petitioner's Exhibits 3-4, 16-20)
Recommendation It is recommended that Respondent deny the amended petition of Petitioners Florida Sunshine Parkway Citrus, Inc. and Joe A. Chambliss. DONE and ENTERED this 9th day of June, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 June, 1983. COPIES FURNISHED: Honorable Paul A. Pappas Secretary, Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Ronald C. LaFace, Esquire Jeffrey H. Abrams, Esquire 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302 Mark Linsky, Esquire Legal Department Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Philip S. Blank, Esquire Suite 320 - Lewis State Bank Building Tallahassee, Florida 32301
The Issue Whether Respondents, Park Lane Condominium Owners Association, Jim Faix, and Polaris Property Management, Inc.,1 discriminated against 1 Respondents will collectively be referred to as Respondents, but Park Lane Condominium Owners Association will be referred to as the Association, and Polaris Property Management, Inc., will be referred to as Polaris. Jim Faix will be referred to as Mr. Faix. Petitioner, Benedict Theisen (Mr. Theisen or Petitioner), on the basis of Mr. Theisen’s disability in violation of the Florida Fair Housing Act (the Act), sections 760.20 through 760.37, Florida Statutes (2019),2 and, if so, the relief to which Petitioner is entitled.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing the following Findings of Fact are made: Petitioner is a 75 year-old male who resides in a second floor condominium unit located at 2155 Wood Street, Sarasota, Florida. Mr. Theisen has lived in his condominium unit for over 29 years. Beginning at age 59, Mr. Theisen’s health started declining, and he began taking his Social Security retirement at age 62. Mr. Theisen experiences shortness of breath and considerable pain in his feet and legs when walking or climbing stairs. He uses a motorized scooter when possible. Mr. Theisen has an unrebutted diagnosis of diabetic peripheral neuropathy. Mr. Theisen has a physical handicap as defined by the Act, section 760.22(7)(a). The Association is the managing body for the Park Lane Condominium (Condo), which is a 49 unit condominium located at 2155 Wood Street, Sarasota, Florida. The Condo was originally built as an apartment complex in the late 1950s, and converted to condominium ownership in 1979. James Faix is the manager for the Association. He holds a bachelor’s degree and has multiple certifications and licensures. Polaris is a property management company that engaged Mr. Faix as the Association’s manager. Mr. Theisen, acting on his belief that his request for a chair lift6 had been approved by the Association,7 received an estimate/invoice from Florida Surgical Supply for the installation and removal of a chair lift at his Condo 6 The term chair lift and stair lift were used interchangeably throughout the hearing and the emails. 7 No evidence was introduced at hearing that the Association had “approved” the chair lift in 2018. There was testimony that in the fall of 2018, Mr. Theisen and Mr. Faix discussed what requirements the Association (or Board) “would approve” for a chair lift. Mr. Theisen testified that he did not speak directly with any Board member about the stair lift. for $1,500.00. The “Delivery Day/Date” on the estimate/invoice was handwritten: “9/13/19.” Bryan Ball, the owner of Florida Surgical Supply, testified that he has been in business for 36 years, and has installed a number of chair lifts. He is not a licensed contractor, but has a Sarasota County business license, tax identification number, and liability insurance. Mr. Ball met Mr. Theisen through the church they attend, and Mr. Ball agreed to provide Mr. Theisen with a chair lift at cost. On Friday, September 13, 2019, Mr. Theisen sent an email to Mr. Faix, which reiterated Mr. Theisen’s understanding of the Association’s requirements for his reasonable accommodation of a stair lift: Hi Jim, Recalling your explanation of the board’s requirements in regard to their reasonable accommodation of a stair lift to wit: I [Mr. Theisen] must pay for the stair lift myself and the stair lift must be removed upon my death or permanent departure from my unit. Attached is the doctor’s prescription which is also being provided to the installer. The installer company has agreed to remove the stair lift upon my death or permanent departure from my unit. .. I do not have an exact figure for the electrical usage but it isn’t much. If it can be calculated that amount could be added to my monthly condo fee. I suppose the power supply will have that information printed on it. Thanks for your tracking that all down for me. I guess it was a year ago. I hope I thanked you then as well. Regards, Pete The “doctor’s prescription” from S. Lexow, M.D., provided, in pertinent part: Theisen, Pete Date: 9-12-19 ? Stair lift. Dx- Diabetic peripheral neuropathy (E13.42) [Dr. Lexow’s signature] Mr. Faix responded to Mr. Theisen via email later that same day. Mr. Faix’s response provided: Pete, I wish I would have had this in time for the board meeting last night. I’ll send it off to the board now and maybe I can get their consent. Will let you know as soon as I can. Stay tuned. ... Jim On Tuesday, September 17, 2019, Mr. Faix emailed Mr. Theisen the following: Pete, The stair lift has been approved. OK to proceed. They are putting together an agreement for you to sign regarding paying for the installation, continued maintenance, removal once you’re no longer using it, and restoring the lobby to its original condition after removal. These are the things we talked about, but well [sic] need to put in writing for the future. I’ll let you know when I get it and we can get together to sign it. In the meantime, I would like to create a file on this. Can you have your installer send me some technical data sheets on the product, and some drawings on how this will be installed and maybe some pictures if available I’m curious to know which side of the staircase it will be installed: along the wall or along the rail? It doesn’t matter, but I’m just curious. BTW, are you getting some sort of key switch installed? Is there a way to prevent others from using or abusing it? I would be concerned with the Association’s liability if an unauthorized person used it and injured themselves. Please ask your installer about this. He’s probably addressed this issue before. I’ve never been involved with a stair lift installation and it’s rather fascinating. Best regards, Jim Faix Polaris Property Management, Inc. Mr. Theisen responded to Mr. Faix via another email that reiterated his position that he would be okay with the agreement if it complied with the HUD guidelines. Mr. Theisen included in this email that: he had forwarded Mr. Faix’s request to the installer; confirmed there was a key switch; explained that the seat could be installed on either side of the stair well, and the seat and arms folded up to take up very little room; and stated that the installer paints the ends of the rails with high visibility paint so people could see them. Lastly, Mr. Theisen suggested that once the chair lift was installed there might be other residents who would want to use the lift, and they should plan for that issue. Later on September 17, 2019, a five-page “COVENANT RUNNING WITH THE LAND AND INDEMNIFICATION AGREEMENT” (Original Covenant) was emailed to Petitioner. The Original Covenant contained a lot of “legalese” phrases8 and 14 specific clauses that both the Association and Petitioner had to agree upon. For example, one “legalese” phrase was a recitation for the consideration for the agreement clause, (“NOW, THEREFORE, IN CONSIDERATION of Ten Dollars ($10.00), the permission and approval by the Board to allow the Owner to undertake and maintain the requested Improvement, and for other good and valuable consideration.”). Even later on September 17, 2019, Mr. Theisen’s reaction was emailed to Mr. Faix: That is ridiculous. The agreement is that the installer put it in and remove it when I die or move and I pay for it. No $10, no insurance, no hairsplitting none of all the rest of it. I told you that attorney was sneaky. Mr. Theisen provided another email to Mr. Faix which provided: “No $10, no insurance, no hairsplitting,” but Mr. Theisen did not elaborate on what else was “ridiculous” about the Original Covenant. Petitioner sent Mr. Faix another email stating that he (Mr. Theisen) was turning the Original Covenant over to “HUD,” and if HUD told Petitioner to sign it, he would. In addition to seeking HUD information and guidance, Mr. Theisen also arranged to consult with a legal aid attorney. Mr. Theisen could not get an appointment until sometime in October 2019. Late on September 18, 2019, Mr. Theisen emailed Mr. Faix the following: It is killed. Because the provider had a temporary over-stock of last year’s model (functionally and cosmetically the same as the latest model) that I 8 Upon review of the Covenant, the first “WHEREAS” clause provided that Mr. Theisen had requested permission to “install a motorized chair lift on the exterior of the building containing” his unit. Based on the oral descriptions and pictures entered in evidence, this was an obvious error in drafting, as the stairwell was within the lobby of the building. would have been able to take advantage of. About half price. I could afford it at that price. By the time the lawyers get done muddying the waters that will be over for a long time, perhaps forever. During season they will sell them out and have back-orders. Killed the deal. If the government websites are to be believed, the lawyers are wrong. Not just wrong, but deliberately wrong – they have to know what the government policy is. I have had business with that firm before, on another controversy with the Wood Street board. I don’t understand why the government doesn’t crack down on them, and/or crack down on the board. Maybe they have “friends”.[sic] I don’t blame you. I know the board always has a majority despot composition. And that law firm caters to despots. Mr. Theisen and Mr. Faix exchanged a number of emails between September 17 and October 1, 2019, regarding the Original Covenant and the legal aid appointment Mr. Theisen requested. Mr. Theisen emailed Mr. Faix that his legal aid appointment was scheduled for October. Mr. Theisen subsequently told the installer that the deal was killed. When Mr. Faix offered that the deal was not killed, just postponed, Mr. Theisen responded via email that by postponing the deal, it was killed. After his October 9, 2019, appointment with a legal aid attorney, Mr. Theisen repeated to Mr. Faix that the Original Covenant was “over- lawyered,” but did not provide specifics as to his objections. Mr. Theisen then filed his complaint with HUD and FCHR. In mid-October, Mr. Faix responded to an inquiry from HUD on behalf of the Condo, Polaris, and himself regarding the chair lift issue. Mr. Faix’s HUD response and his credible testimony confirmed that at the time of the HUD response, Mr. Theisen’s requested accommodation had been approved, but that Mr. Theisen objected to the Original Covenant. The outstanding problem was that the Condo, Polaris, and Mr. Faix did not know which provisions of the Original Covenant Mr. Theisen found objectionable. In late October, Mr. Faix, as the managing agent for the Condo and on behalf of Polaris, responded to a similar inquiry from FCHR. Mr. Faix again provided that Mr. Theisen’s requested accommodation had been approved, but that Mr. Theisen objected to the Original Covenant. Mr. Faix offered that Respondents were willing to work with Mr. Theisen, but were not aware of the exact objections that he held. Further, Mr. Faix indicated Respondents would participate in a conciliation attempt. At hearing (roughly 11 months after the Original Covenant was provided), Mr. Theisen verbalized his objections with the Original Covenant as the $10.00 consideration and paragraphs 3 through 7. At some point between October and January, FCHR provided Petitioner’s objections to Respondents. As a result of being told what the objections were, the Original Covenant was reduced from a five-page document to a one-page document, known as the Covenant (Second Covenant). This Second Covenant was provided to Mr. Faix and Mr. Theisen on or about January 23, 2020. Mr. Theisen shared his objections to the Second Covenant via an email to FCHR. Mr. Theisen provided that this Second Covenant was an improvement, but he could “not agree to numbers 2, 3, and 4.” Those sections provided: The Owner will hire an installer to install a motorized chair lift on the interior of the building containing Unit B-4 who is licensed and insured for furnishing such work and only such installer may furnish such work. Prior to commencing such work, the Owner or installer shall obtain any required building permits from the City of Sarasota or Sarasota County, as applicable, to allow for such work to proceed. Upon completion of such work, the work shall be inspected and approved by the appropriate government agency having jurisdiction of the work. At least two (2) business days before commencing such work, the Owner or installer shall furnish the Association, through its management, evidence that the installer is licensed and insured for furnishing such work, a copy of any permit issued for the work, the make and model of all equipment to be installed, the mechanical mounting and electric hookup, power requirements, and the scheduled installation and repair dates and times. Mr. Theisen objected to the requirement that the installer be licensed and insured, because the chair lift was going to be installed by a mechanic, who according to Mr. Theisen did not need to be certified. Mr. Theisen repeatedly testified that no building permits were necessary, and there was no need for the completed work to be inspected or approved by an appropriate government agency. Other than his self-serving testimony, Mr. Theisen did not provide competent evidence that permits, licenses, and inspections were not necessary. Mr. Ball testified he provided the $1,500.00 installation invoice offer to Petitioner in September 2019, but “pulled out” of the invoice offer in January 2020, when the project became too costly for him. Mr. Theisen notified Mr. Faix at least two times after receiving approval that the chair lift installation was “killed.” However, both parties attempted to come to a positive resolution. The term “condominium” is a form of real property ownership created pursuant to chapter 718, Florida Statutes. A condominium is comprised entirely of a collection of units and common areas along with the land upon which it sits. Units may be owned by one or more persons and those unit owners own a pro rata share of all the common elements. Each unit owner has exclusive ownership or rights to their unit’s interior space. Each unit owner also owns an undivided interest with the other unit owners in the common elements, which interest cannot be separated from the unit. Those common elements are controlled by a condominium owners’ association. Generally, the condominium owners’ association is responsible for the condominium’s assets as well as its operation in accordance with standards established by state and federal law, local ordinances, and the governing documents upon which the entity itself was created. This includes the repair and maintenance of the common areas, including the building(s) exterior. The condominium owners’ association involves a commitment to all the owners to make decisions on behalf of all owners. One of a condominium owners’ association’s goals is to ensure that the facility’s common elements are kept in a reasonable condition for everyone’s use. It is common practice to use covenants running with the land to allow unit owners to make improvements to the common elements within reason. Although the undersigned was not provided with a copy of the Condo’s Declaration or by-laws, Mr. Faix provided the requisite insight with respect to the Association. In this instance, there are 49 units in the Condo. The Association is composed of five elected volunteer members. The Association received Mr. Theisen’s request for a reasonable accommodation, the installation of a stair lift, and approved it. The Association, via Mr. Faix, notified Mr. Theisen of the approval, and that an agreement was being prepared for the future. The Covenant was not an unreasonable request, but one for the viability of the Condo. There was an unfortunate breakdown in communication and lengthy delay between Mr. Theisen and the Association over his objections to that agreement, caused in large part by Mr. Theisen’s refusal to identify his specific objections. This does not negate the Association’s approval of the requested accommodation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner Benedict Theisen. DONE AND ENTERED this 25th day of September, 2020, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 25th day of September, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Benedict Peter Theisen Pete Theisen 2155 Wood Street B 4 Sarasota, Florida 34237 (eServed) Mark W. Lord, Esquire 46 North Washington Boulevard, Suite 16D Sarasota, Florida 34236 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Paul Edward Olah, Esquire Law Offices of Wells Olah, P.A. 1800 Second Street, Suite 808 Sarasota, Florida 34236 (eServed) Jim Faix Park Lane Condominium Association No. 376 8437 Tuttle Avenue Sarasota, Florida 34243
The Issue Whether Respondent committed the violation alleged in Petitioner’s Public Accommodations Complaint of Discrimination filed by Petitioner on September 6, 2007, and if so, what relief should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Jacksonville area. She is married to Wayne Benedict and is the mother of Bryan Benedict. On July 23, 2007, Petitioner went to Wal-Mart to do the family’s grocery shopping. Her son, Bryan, and his friend, Adarious Pickens, also African-American, were with her. When she arrived at Wal-Mart, she proceeded to the deli counter, where she usually begins her shopping trip. On the day in question, the numbering system in the deli was broken. When operating, the numbering system dispenses tickets with numbers on them which determine which customers arrived first and who receives service first. At the time Petitioner approached the deli counter, three Caucasian customers were present and waiting for service. After the three Caucasian customers were served, another Caucasian customer approached the deli counter and was waited upon. Because Petitioner believed that the last Caucasian customer had been served out of turn, Petitioner left the deli area to find a manager. After learning that the manager had gone for the day, she was directed to a person who was “team lead.” She complained to the team lead who apologized to Petitioner. After speaking to the team lead, Petitioner then returned to the deli department and asked one of the deli associates, Jeanne Thornton, to identify the other deli associate. Ms. Thornton identified the other associate as “Trish.” Petitioner again left the deli area. At the time of this incident, Ms. Thornton and Trish were the only two Wal-Mart associates were working at the deli counter. Petitioner acknowledges that the deli appeared to be short-staffed, as she typically sees three or four associates working behind the deli counter. Several minutes later, Petitioner returned to the deli counter and requested service. Prior to this time, Petitioner waited for service, which was not forthcoming, but did not verbally request service. Ms. Thornton then waited on Petitioner, who left the deli area after she was given the food items she requested. Ms. Thornton noticed that Petitioner was angry and upset. The deli counter in question is at least 30 feet long. The deli contains both a cold food section and a hot food section. In addition, there is a lower shelf where items are for sale, which do not require the assistance of deli associates. On any given day, associates are assigned to work in either the hot or cold food sections. At the time Petitioner approached the deli counter, Trish was assigned to the deli’s hot food section, and Ms. Thornton was in the midst of filling a large cold food order. When a deli associate is assigned to cook food in the deli department’s hot food section, it is that person’s responsibility to perform duties related to the hot food. According to Ms. Thornton, “when the food comes up, it has to be temped, logged, and put in the hot bar.” These duties of an associate assigned to the hot food section of the deli take priority over helping customers. If the hot food is not properly temped, logged, and put in the hot bar, the hot food must be thrown away. On those occasions when the numbering system is not working, the deli associates rely on customers to tell them who should be waited on next. This is, in part, because the associates often turn their backs to the customers at the deli counter while they are cutting meat, etc. Food items sold from the deli counter are not intended for on-site consumption. Petitioner did not intend to consume the items purchased from the deli on the premises of Wal-Mart. No employee of Respondent made any racially derogatory or racially related comments to Petitioner. Other than Petitioner’s firm belief that she was overlooked in favor of Caucasian customers, no evidence was presented that the actions of Respondent’s associates were racially motivated.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim of public accommodation discrimination. DONE AND ENTERED this 19th day of November, 2008, in Tallahassee, Leon County, Florida. Barbara J. Staros 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 19th day of November, 2008.
The Issue Whether Petitioner, Sergey P. Shashelev, was subject to an unlawful employment practice by Respondent, Cirque du Soleil, based on his age and disability in violation of the Florida Civil Rights Act, section 760.10, Florida Statutes.
Findings Of Fact Cirque is a live entertainment company founded in Quebec, Canada, that dedicates itself to creating, producing, and performing artistic works around the world. Cirque currently presents a show called “La Nouba” in Orlando, Florida. La Nouba is a contemporary circus performance featuring acrobats, gymnasts, and other skilled performers, including clowns. La Nouba employs approximately 65 performers. La Nouba is a resident show located at Disney Springs at the Walt Disney World Resort (“Disney”) in Orlando. Cirque contracts with Disney to present La Nouba at Disney Springs. La Nouba is housed in a fixed theatre and does not travel. La Nouba has presented ten shows a week at Disney since 1998. Petitioner was born in Russia in 1960. He was born deaf. From the time Petitioner turned eight years old, he knew he wanted to be a clown. During his teens, Petitioner studied miming. He soon became a highly trained artist with a unique skill in pantomime. When Petitioner was 21, he joined the Leningrad Litsedei (“the Jesters”) Clown Mime Theater, world renowned clowns and mimes. For the next 15 years, Petitioner toured the world with the Letsedei group performing and developing his clown personality. Because Petitioner has been deaf since birth, he is not able to speak. Petitioner communicates through sign language. Petitioner is proficient in ASL, Russian Sign Language, and Quebec Sign Language (used in French-speaking parts of Canada). Petitioner considers Russian Sign Language his native tongue. His ability to read and comprehend English text is limited. The parties both described clowning as an art form. Clowns are artists, and each individual clown is unique. The art of clowning comes from the performer’s heart. Clowns have different personalities, emotions, rhythm, sensibilities, and style. Even if two clowns performed the same act, the performance would look different. Cirque first hired Petitioner in January 1994. Mr. Gilles St. Croix, Cirque’s Creative Guide, hired Petitioner to perform in the Cirque show “Alegria.” Cirque hired Petitioner for his miming skills. Based on Petitioner’s artistic specialty and clown personality, Cirque chose Petitioner to portray a “down-and-out” clown. Cirque readily agrees that Petitioner is a very talented, “world-class” clown. (Cirque expressed that it would hire no less.) Cirque does not dispute that Petitioner is a master at his craft. When Petitioner’s contract with Alegria ended, Mr. St. Croix asked Petitioner to join the cast of a new production Cirque was developing in Orlando that would become La Nouba. Mr. St. Croix was aware that Petitioner was deaf when he hired him. Cirque viewed Petitioner’s disability as an asset. Petitioner’s disability became a gift to his performance and creativity. Miming allowed him to communicate with people of many nationalities. Cirque hired Petitioner together with his partner, Michel Deschamps, who went by the clown name “Balto.” Petitioner and Balto created five clown acts that were incorporated into La Nouba. The combined acts took up approximately 15 to 18 minutes of show time. From 1998 through 2014, Petitioner performed the same clown act with Balto. Petitioner and Balto were part of La Nouba’s original cast and always performed their clown act together. Currently, La Nouba artists and performers report to Daniel Ross, La Nouba’s Artistic Director. Mr. Ross became the production’s Artistic Director in 2010. Mr. Ross reports to the Senior Artistic Director, Pierre Parisien. Mr. Parisien became the Senior Artistic Director for La Nouba in 2000. Neil Boyd is La Nouba’s current Company Manager. Cirque’s workforce is diverse. Across its worldwide productions, Cirque employs approximately 1,300 individuals who are 40 or older including four or five clowns. At La Nouba, approximately 70 Cirque employees are over 40. Cirque also employs individuals who have disabilities. Two of these employees are clowns and are also deaf or hard of hearing. Cirque enters into individual written contracts with its artists. The initial Artist Agreement (“Artist Agreement”) is for a period of two years. Thereafter, each contract is renewable in one-year increments. Cirque drafted Artist Agreements for a defined period of time because Cirque desired to maintain the flexibility to adjust or change its shows and artists when necessary. Cirque never intended its artists to be permanent performers in a production. Cirque regularly replaces artists and integrates new acts into existing shows. Accordingly, Artist Agreements allow Cirque to terminate an artist at any time. In April 1998, Petitioner and Cirque executed a Letter of Intent whereby Petitioner agreed to begin work for La Nouba. In March 1999, after a negotiation process, Petitioner signed a formal Guest Artist Agreement for La Nouba. Petitioner’s initial Artist Agreement ran from October 5, 1998, through December 22, 2000 (notwithstanding the date of Petitioner’s signature). Thereafter, Petitioner’s Artist Agreement could be renewed every year “upon the mutual consent of both parties” for “additional and consecutive periods of one (1) year each.” Petitioner signed the Artist Agreement and initialed every page. Cirque and Petitioner subsequently renewed his Artist Agreement every year from 2000 through 2013 in one-year increments. On August 16, 2013, Petitioner and Cirque signed what was to become Petitioner’s final contract extension. The parties agreed to renew Petitioner’s Artist Agreement for the period running from January 1, 2014, through December 31, 2014. Petitioner’s Artist Agreement was written in English. Petitioner testified that, because he could not read English, he did not comprehend all the contract provisions. He just signed the Artist Agreement and went to work. Petitioner expressed that at the time he executed his initial contract, he believed that his position was permanent until he decided to leave or retire. Petitioner’s Artist Agreement did not contain any written provisions stating that Petitioner could stay at La Nouba until he retired from the show. On the contrary, Cirque could terminate Petitioner’s Artist Agreement at any time without cause. As stated in Petitioner’s Artist Agreement, section 9.3: [Cirque du Soleil Orlando, Inc.] shall have the right to terminate this agreement without cause, upon simple notice to the Artist, provided the Producer pays the Artist, as severance compensation, the amount determined in accordance with the calculations mentioned in Schedule D to this agreement. Cirque also prepared a separate annual contract renewal letter which indicates whether an artist receives a raise. In Petitioner’s August 16, 2013, renewal letter, Cirque agreed to pay Petitioner $506.66 for each La Nouba performance or approximately $250,000 per year. Cirque highly compensates its clowns because they are unique and difficult to find. By the end of his employment, Petitioner was one of Cirque’s highest paid performing artists. In addition to the Artist Agreement, Cirque employees receive the Cirque Human Resource Artist Rules and Policies Manual (“Rules and Policies Manual”). During Petitioner’s employment with La Nouba, Cirque voluntarily arranged and paid for Petitioner to use certified ASL interpreters on many occasions to communicate with Cirque’s management team and fellow performers. Cirque provided Petitioner with an interpreter for every weekly artist meeting, all annual contract renewal meetings, as well as every annual performance evaluation meeting. No terms in Petitioner’s Artist Agreement required Cirque to obtain an interpreter for Petitioner’s use during Cirque functions. When Cirque met with Petitioner to execute his initial Artist Agreement, Cirque obtained the services of an interpreter to assist Petitioner. During this meeting, Cirque did not direct the interpreter to translate the full contract terms, word-for- word from English to ASL, for Petitioner. Neither did Petitioner ask the interpreter to interpret every word of his Artist Agreement. Although Cirque provided Petitioner a copy of the Artist Agreement, he did not have someone translate all the provisions of the document for him. Every year when Petitioner and Cirque met to renew Petitioner’s Artist Agreement, Cirque arranged for the presence of a certified ASL interpreter during the meeting. As with his initial contract, Cirque allowed Petitioner the opportunity to ask the interpreter questions about the terms of his renewed Artist Agreement. Petitioner never asked the interpreter to interpret every word of his contract. Petitioner signed every contract renewal letter. Cirque provided Petitioner copies of all renewal letters. Mr. Parisien, Cirque’s Senior Artistic Director, attended Petitioner’s last four contract renewal meetings. At each meeting, Mr. Parisien advised Petitioner that his contract was renewed for only one year. Mr. Parisien never communicated to Petitioner that he had a lifetime employment with La Nouba. Petitioner never complained to Mr. Parisien about the contract terms or renewal process. Neither did Petitioner ever express to Mr. Parisien that he was under the impression that he had a lifetime or permanent employment with La Nouba. La Nouba scheduled weekly artist meetings which were held every Tuesday. At these Tuesday meetings, Cirque relayed announcements or comments that pertained to the artists, La Nouba, or Cirque. At every Tuesday meeting, Cirque provided Petitioner with a certified ASL interpreter. Petitioner was free to ask questions or raise any concerns through the interpreter at these meetings. Although the Tuesday artist meetings typically lasted 15 minutes, Petitioner’s interpreters were hired for two-hour blocks of time. Following the meetings, the interpreters were available for Petitioner’s personal use to communicate with Cirque employees for the remainder of the two hours. On occasions, Petitioner took advantage of the interpreters to converse with Cirque management and fellow performers. Cirque also arranged and paid for interpreters to assist Petitioner in other matters including health insurance issues, as well as communications with other La Nouba performers, trainers, costumers, and Cirque employees. Cirque also provided Petitioner the use of interpreters for press events, rehearsals for a special show, a workshop, and several other important meetings including three to four annual company meetings. From 1998 through the end of his employment in 2014, no evidence indicates that Cirque ever denied any request from Petitioner for an interpreter’s assistance during a La Nouba event or an employee meeting. Cirque was not aware of any complaints from Petitioner that he could not effectively communicate with Cirque management or fellow performers. In addition to interpreter services, Cirque provided Petitioner with a cell phone/pager to communicate with Cirque employees. This device allowed Petitioner to communicate, via text, in a simple manner. Petitioner was the only artist Cirque provided with a cell phone/pager. In addition to the interpreters, several Cirque employees knew sign language. These individuals included Balto, Petitioner’s partner in his clown act, and David Wallace, a Cirque sound engineer. Cirque occasionally requested Balto or Mr. Wallace to help communicate with Petitioner. At the final hearing, Petitioner testified that Cirque did not provide him the benefit of an interpreter for every show related event or gathering. An interpreter was not present during show rehearsals. Without an interpreter, Petitioner felt that he had a very limited ability to communicate with the other performers or management. Petitioner felt that the lack of an interpreter hindered his creative process. In addition, Petitioner described one La Nouba affair during which Cirque did not provide him an interpreter. This event was La Nouba’s 15th anniversary party in December 2013. Mr. Wallace offered some assistance communicating the speeches to Petitioner based on his limited sign language. Petitioner, however, felt left out and was not able to fully participate in the party. Petitioner did not request Cirque provide him an interpreter for the party. The party was not a mandatory event for Cirque employees. Mr. Ross, as La Nouba’s Artistic Director, evaluated all artists’ performance, including Petitioner. From 2010 to 2013, Mr. Ross prepared an annual performance evaluation for Petitioner. Cirque’s Rules and Policies Manual, section 13, stated that performance evaluations were based on several elements including: 1) artistic quality of performance; 2) performance--acrobatic/musical/character; 3) attitude; and 4) health care. Mr. Ross personally presented Petitioner his annual performance evaluation. Each year, Mr. Ross and Petitioner reviewed Petitioner’s performance evaluation in the presence of a certified ASL interpreter and another witness. All evaluations were read to Petitioner (through the interpreter). Petitioner signed every evaluation. During these meetings, Petitioner had the opportunity to ask Mr. Ross questions or raise any other issues through the interpreter. Petitioner never asked the interpreter to read the performance evaluation line by line. Every year, Petitioner received overall positive ratings from Mr. Ross. For example, in Petitioner’s 2011 performance evaluation, Mr. Ross commented that Petitioner’s “clown is very charming and the audience is always touched by his performance.” In 2012, Mr. Ross commented that Petitioner “masters his art as a clown” and Petitioner is a “beautiful performer. . . . He is funny and touching.” In 2013, Mr. Ross commented that Petitioner’s “experience and talent are unquestionable.” According to Petitioner, Mr. Ross always had positive things to say about his clown act. Mr. Ross conveyed to Petitioner that he was a great asset to La Nouba and very pleasant to deal with. At the final hearing, Mr. Ross also expressed that Petitioner was a beautiful performer and an excellent and talented clown. However, over the course of his years supervising Petitioner’s act, Mr. Ross observed that Petitioner’s act had become routine. Petitioner was not taking risks or evolving his presentation. Mr. Ross noted in Petitioner’s performance evaluations that Petitioner’s “routine is almost too consistent. He could take more risks and explore further within the routines. As a result, there is very little evolution in [Petitioner’s] performance . . . consistency in the performance is such that it can feel too permanent sometimes. I would love to see [Petitioner] take more risks and let the present moment influence his performance more.” (August 2011) “Sometimes we would like to see [Petitioner] taking more risks and keeping the performance on the edge; this would help him not to fall into a routine. . . . No significant evolution.” (July 2012) Petitioner “sticks to the show material and very rarely explores new avenues. . . . He has to be careful not to let the routine diminish his performance level.” (July 2013) Cirque spends up to two years creating a show. Thereafter, to keep up with industry trends, look vibrant, maintain market share, and stay relevant, Cirque adjusts and evolves its shows over time. Changes include altering existing acts, integrating new acts, modifying the costumes, replacing acts and/or artists, transforming the music, and varying the choreography. Introducing new elements and updating shows provides Cirque another opportunity to advertise and market its shows to the public. This step increases the likelihood of repeat customers. Conversely, Cirque believes that if it does not evolve its shows, its sales are negatively impacted. Around 2012, Cirque shows began to experience a decline in sales. Consequently, Cirque’s owner, Guy Laliberte, directed that all Cirque shows be changed and upgraded. Mr. Laliberte wanted to increase the quality of the shows and keep them relevant. In the summer of 2013, Mr. Laliberte instructed Mr. Parisien to change La Nouba before the end of 2015. Cirque planned for significant changes to occur to La Nouba from 2013 through 2015. During this time, Disney also expressed a desire for Cirque to revamp La Nouba. La Nouba’s contract with Disney was scheduled to expire in December 2017. Mr. Laliberte desired the changes to La Nouba made before Cirque’s contract with Disney ended in order to extend the contract. In July 2013, Petitioner’s partner, Balto, announced that he was retiring from La Nouba. Balto’s retirement was unexpected. Balto asked Mr. Parisien if his last day could be April 19, 2014. Mr. Parisien agreed. Initially, Cirque was uncertain how Balto’s retirement would impact Petitioner’s position with La Nouba. Losing one half of the clown act would certainly affect Petitioner’s routine. Mr. Parisien was open to all possibilities as to how to handle the change. Because Petitioner was scheduled to renew his annual Artist Agreement for 2014 in January 2014, and Balto was not leaving until April 2014, Mr. Parisien decided that Cirque should renew Petitioner’s contract with La Nouba for the full year (from January through December 31, 2014). Mr. Parisien met with Petitioner in August 2013 to discuss renewing his Artist Agreement in light of Balto’s retirement. Mr. Parisien advised Petitioner that Cirque would agree to renew his contract for all of 2014. Petitioner’s renewal letter stated that renewal was under the same terms and conditions as his original Artist Agreement. Cirque obtained an interpreter who was present to assist Petitioner during this meeting. Despite renewing Petitioner’s Artist Agreement, Mr. Parisien advised Petitioner that the La Nouba clown act was going to change, but he had not yet determined how. Mr. Parisien recognized that Balto’s retirement provided La Nouba the opportunity to evolve the clown act in compliance with the mandate by Mr. Laliberte and Disney. Mr. Parisien considered three options as to how to change La Nouba’s clown act. First, Cirque could find Petitioner another partner. Second, Petitioner could continue as a solo clown act. Or, third, La Nouba could replace Petitioner and Balto’s clown act with two different clowns. Mr. Parisien discussed these three options with Mr. Ross, La Nouba’s Artistic Director. Mr. Ross had no preference and was open to all options. During the fall of 2013, Mr. Parisien and Mr. Ross met with Petitioner several times to discuss the various options for the clown act. Cirque obtained an interpreter’s services for each meeting. Mr. Parisien and Mr. Ross advised Petitioner that they had not decided on which direction to take the clown act. Petitioner acknowledged that Cirque was in the process of changing and upgrading La Nouba. However, Petitioner conveyed to Mr. Parisien and Mr. Ross that he did not want his clown act to change. Petitioner suggested that Cirque hire Maxim Fomitchev (“Max”), a clown performing on the Cirque show, Alegria. Although Petitioner had never worked with Max, Petitioner suggested that he and Max would continue to perform the same clown act that Petitioner originated with Balto. Mr. Parisien agreed to consider Petitioner’s recommendation. During these meetings, Mr. Parisien, and Mr. Ross occasionally spoke in French. (French is their first language.) However, no evidence shows that Mr. Parisien and Mr. Ross ever discussed Petitioner’s disability or age in French. In November 2013, Mr. Parisien contacted Mr. St. Croix to discuss the different options regarding La Nouba’s clown act. Mr. Parisien, as La Nouba’s Senior Artistic Director, was responsible for deciding how to adjust La Nouba’s concept and select acts that fit his artistic vision for La Nouba. Mr. Parisien, however, wanted Mr. St. Croix’s advice. Mr. St. Croix is the mastermind behind most of Cirque’s important shows. Mr. Parisien valued his opinion and artistic vision. Mr. St. Croix recommended that Mr. Parisien bring to La Nouba the clown act of “Pablo and Pablo” from Alegria. (Pablo and Pablo were two clowns whose first names were Pablo.) Alegria was closing in December 2013. The timing was advantageous for a move to La Nouba. Until his conversation with Mr. St. Croix, Mr. Parisien had not considered Pablo and Pablo as an option for La Nouba. Mr. Parisien was familiar with Pablo and Pablo and their clown act. He considered them to be great performers and artists. Mr. Parisien testified that Pablo and Pablo’s clown act was different from Petitioner and Balto’s clown act. Their clown personalities were also very different. Pablo and Pablo were high energy and colorful, while Petitioner and Balto were more deliberate and poetic. Pablo and Pablo’s comedy was more slapstick and physical. Described another way, Petitioner and Balto were like jazz, while Pablo and Pablo were more rock-and- roll. Pablo and Pablo’s act and personalities met Mr. Parisien’s artistic vision for changing the concept of La Nouba’s clown act. In addition, inserting Pablo and Pablo’s clown act into La Nouba was the most efficient business decision. Pablo and Pablo had been working together as a successful partnership for years. Cirque would avoid any delay that might result from having to develop a completely new clown act for Petitioner and a new partner. Mr. Parisien commented that it is difficult to establish a partnership in any act because the relationship depends on the performers’ chemistry, energy, and rhythm. It was more efficacious and safer for Cirque to use Pablo and Pablo rather than find Petitioner a new partner because Pablo and Pablo could just transfer their act from Alegria to La Nouba. Pablo and Pablo would also introduce new material to La Nouba. In November 2013, Mr. Parisien decided to bring Pablo and Pablo to La Nouba to replace Petitioner and Balto. Mr. Parisien felt that his decision met both Cirque’s artistic and business requirements. This decision would also effectuate Mr. Laliberte’s directive to change the concept of the clown act and bring new elements to La Nouba. Unfortunately, bringing Pablo and Pablo to replace Petitioner’s act meant that Mr. Parisien had to terminate or non-renew Petitioner’s contract. Mr. Parisien ultimately decided to terminate Petitioner’s contract on the same date Balto retired. Cirque notified Petitioner that it was terminating his Artist Agreement at a meeting held on January 21, 2014. Mr. Ross, Mr. Boyd (La Nouba’s Company Manager), as well as an interpreter were present with Petitioner during the meeting. Although it was Mr. Parisien’s decision to terminate Petitioner, Mr. Ross held the meeting because he was located in Orlando. At the meeting, Mr. Ross informed Petitioner that Cirque was terminating his contract as of April 19, 2014. April 19, 2014, was the same day Balto was retiring from the show. Mr. Ross explained to Petitioner that Cirque had decided to change the concept of the La Nouba clown act. Mr. Ross provided Petitioner with a termination letter. The letter stated that “in view of a change in the show concept,” Petitioner’s Artist Agreement was being “terminated as of April 19, 2014, by virtue of section 9.3.” Petitioner was further advised that Cirque would pay him a severance in the amount of $24,218.35. Petitioner was shocked by the Cirque’s decision to replace him. Although an interpreter translated the conversation, Petitioner felt lost at times during the meeting due to the rapid exchanges between Mr. Ross and Mr. Boyd. Petitioner did not believe that all communications were adequately interpreted. Mr. Parisien testified that neither Petitioner’s age nor disability had any bearing on his decision to terminate Petitioner. Rather, the decision was based solely on the fact that he was compelled to change and update La Nouba. The fact that Balto was retiring from La Nouba as Petitioner’s partner opened the door for La Nouba to replace their clown act. Prior to this meeting, Pablo and Pablo agreed to come to La Nouba. Pablo and Pablo are both younger than Petitioner. In addition, neither of them has a disability. Mr. Parisien testified convincingly that he did not hire Pablo and Pablo because they could hear or because they were both younger than Petitioner. During his employment with Cirque, Petitioner never complained to Cirque management that he felt discriminated against. Petitioner never complained about the availability of (or lack of) interpretation services Cirque offered. Petitioner never requested any accommodations beyond what Cirque already provided. Neither did Petitioner ever file an accommodation request with Cirque’s human resources department in accordance with the Cirque Rules and Policies Manual. On the contrary, during his August 2011 performance evaluation, Petitioner relayed that Cirque has “been providing communication through interpreters which is good . . . I love the show and want to stay here for a while.” Although Mr. Parisien made the decision to terminate Petitioner’s Artist Agreement, Petitioner alleged that Mr. Ross was the only person at Cirque that discriminated against him based on his disability and age. Petitioner continued to perform his clown act with Balto at La Nouba from January 2014 through April 19, 2014. Mr. Ross noticed that Petitioner’s performance actually improved after he was informed of his termination. On or about April 11, 2014, Cirque advised Petitioner that, in addition to the severance, Cirque would voluntarily pay him a transition premium of $15,000.00, as well as vacation and leave pay. In total, Petitioner received $53,627.76 after Cirque terminated his employment. Following Petitioner and Balto’s last show, Cirque held a celebration party and provided both artists with gifts. Cirque also invited all of the interpreters who had assisted Petitioner throughout the years to watch his last performance and attend the party. Although Cirque determined to replace Petitioner (and Balto) at La Nouba, before his last show Cirque discussed with Petitioner possible jobs at other Cirque productions. To be considered for another Cirque show, Petitioner would have had to update his casting profile with Cirque’s casting department. Petitioner met with Cirque’s casting department. However, he never provided the casting department with materials to update his profile in order to be considered for other jobs. Petitioner informed Cirque that he did not want to go to a different show. He was not interested in leaving Orlando or touring with another Cirque production. He desired a permanent position until he retired. Pablo and Pablo began performing their clown act at La Nouba immediately after Petitioner and Balto left the show in April 2014. Pablo and Pablo brought their acts from Alegria to La Nouba. Pablo and Pablo’s performance included five acts: 1) thieves, 2) motorcycle, 3) airplane, 4) door, and 5) piñata. These acts were different from the acts Petitioner and Balto performed. Although, both acts contain a horse bit, the acts Pablo and Pablo brought were newer and different from the act Petitioner performed at Alegria or La Nouba. Mr. Parisien believed that Pablo and Pablo successfully changed the concept of the clown act because their act, energy, and style were completely different from Petitioner and Balto’s. The new clown act also provided Cirque a new marketing angle to advertise the show and create publicity. Whether coincidental or not, after Pablo and Pablo arrived at La Nouba, ticket sales increased. Mr. Parisien’s decision to replace Petitioner and Balto’s clown act was not the only change he made to La Nouba. Other changes included replacing the juggler act with a rola-bola balancing act, the skipping act with a street dance act, and the high wire act with an aerial bamboo act. He changed the costumes of the bike act and the music for the flying trapeze act. In addition to Petitioner, Parisien terminated or did not renew approximately seven other artists. In total, approximately 30 to 40 percent of La Nouba changed in response to the Cirque and Disney mandate. To Mr. Parisien’s knowledge, none of the other artists terminated from La Nouba had a disability. Some of the artists terminated were younger than Petitioner. Since his employment with Cirque ended, Petitioner has not looked for any other artist jobs with either Cirque or Disney. Petitioner has not worked as a clown since he left La Nouba. Based on the competent substantial evidence presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that Cirque discriminated against him based on his age or his disability in violation of the Florida Civil Rights Act. Rather, Cirque’s decision to terminate Petitioner was based on its desire to change and update the concept of the La Nouba production.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Cirque du Soleil, did not commit an unlawful employment practice as to Petitioner, Sergey P. Shashelev, and dismiss Petitioner’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 11th day of October, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 11th day of October, 2016.
The Issue Whether Respondent, Department of Environmental Protection's ("Department") intended decision to award a contract to Intervenor, US eDirect, Inc. ("US eDirect"), for a Parks Business System ("PBS"), pursuant to Invitation to Negotiate 2019002 ("the ITN"), is contrary to the Department's governing statutes, rules, or the ITN specifications, and contrary to competition, clearly erroneous, arbitrary, or capricious.
Findings Of Fact The Parties The Department is the state agency responsible for managing and preserving Florida's 175 state parks. The Department has been recognized as the nation's only three-time winner of the National Gold Medal Award for Excellence in the management of the state park systems. This achievement makes Florida the only state park system in the nation to win more than one Gold Medal award. The Department is committed to excellence and sustaining its high level of service for its park visitors. Petitioner, RA Outdoors, LLC, d/b/a Aspira, is a limited liability company organized under the laws of the State of Texas. Aspira is registered to do business in the State of Florida. Aspira is the incumbent contractor for the CRS and POS services being requested under the ITN. Aspira has been under contract with the Department to provide a CRS system for the past 19 years and a POS system for the past four years. Intervenor, US eDirect, Inc., is a corporation organized under the laws of the State of New York. The ITN The process for the ITN began many years ago when the Department was in the process of renewing its contract with Aspira for the final renewal period. Knowing that the end of its contract with Aspira was approaching, the Department sought to gain knowledge of the products and solutions available in the industry for CRS and POS systems. The Department issued a Request for Information ("RFI") in 2016, 2017, and 2018. The 2016 RFI sought to obtain industry information related to the Department's acquisition of a POS system. The 2017 RFI sought to obtain industry information about automated park entry technology solutions. The 2018 RFI sought to obtain industry information about park business systems technology. The 2017 and 2018 RFIs expressed the Department's interest in obtaining functionality, including "'[f]ast pass' or quick access lane options for both day use admission as well as for registered campers" and "entry ticket sales in a high-sales environment." The responses to the RFIs indicated there are multiple viable products, which varied significantly in technology, solution, cost model, total cost, integration potential, and requirements. The Department chose to utilize the most flexible comparative procurement process to achieve its goals; specifically, an ITN method of procurement rather than an invitation to bid or request for proposals. The Department chose an ITN because it wanted industry leaders to craft individual and innovative solutions so that the Department could then determine the best value option for the State. Against this backdrop, on March 18, 2019, the Department posted the ITN on the Florida Vendor Bid System ("VBS"), seeking replies from qualified vendors to provide a PBS. The procurement officer designated by the Department for the ITN was Gloriann McInnis. The primary focus ("core services") of the ITN was to procure the CRS and POS business systems. The ITN stated its "[p]urpose and [s]cope" as follows: The Department of Environmental Protection (hereinafter referred to as the "Department" and/or "DEP") is seeking offers from qualified vendors to provide a Park Business System (PBS), that includes both the implementation and ongoing operation, including maintenance and management, of a comprehensive integrated technology solution for park business needs (Solution). This solution should include, at a minimum, a Central Reservation System (CRS) capable of supporting online, in-person, and call center reservations for multiple locations statewide on a 24/7 basis, and a day-use Point of Sale system (POS) capable of supporting over $70 million, with the capacity for growth, in financial transactions on an annual basis.[1] The Department's goals for the ITN included "solutions which can provide the primary functions of a CRS (for camping and cabin reservations) and a day-use POS system (for park admission sales, annual entrance pass sales, equipment rentals, facility rentals, merchandise sales and other park fees) in an integrated, easy-to-use and highly accessible format." In addition to the core CRS and POS systems, the ITN also indicated that the Department "is open to considering outcomes beyond [the] CRS and POS functionality that would make the system more efficient and effective. If a Respondent has additional services to offer, these options should be documented in the response." The potential additional optional services the Department indicated it was open to considering included, but were not limited to, automated entry solutions, mobile ticket applications, self-service kiosks, technology to support fast-past entrance lanes, online merchandise sales, and online park guide or park guide applications. The ITN provided two pricing components: one price proposal for the core solutions based on a mathematical percentage fee of the estimated annual park system revenue of $55 million, and a second price proposal for the value-added or optional services. The Price Sheet attached to the ITN (Section 7.00) provided spacing for the vendors to submit their prices for the core solutions only, based on a projected mathematical percentage fee of the estimated revenue of $55 million. The Price Sheet did not include spacing for value-added services. 1 The ITN contained attachments that included, among other things, the Requirements Document for the ITN labeled as Attachment G, and the Service Level Agreement and Performance Standards for the ITN labeled as Attachment H. From the time the ITN was posted on VBS, on March 18, 2019, through the Department's intended award decision on July 6, 2020, the Department posted nine Addendums to the ITN on the VBS. No vendors protested the ITN terms, conditions, or specifications, including as amended by the addenda. The Department made clear in the ITN that, with respect to vendor replies as to the core solutions, it "will consider the Respondent's Percentage Fee only, all other pricing requested is 'value added.'" With respect to the value-added services, the Department had no preference as to how a vendor priced its value-added services. The ITN expressly stated: "At the conclusion of negotiations, the Department will request best and final offers (BAFOs) from the remaining respondents and notify them of the selection criteria on which the award will be based."2 The ITN further stated: "After receipt of the BAFOs, the Department may conduct a Public Meeting for the negotiation team to discuss the results of negotiations and formulate their recommendations to the Department as to whether and how to award a Contract pursuant to this solicitation." "The negotiation team will not engage in scoring but will arrive at its recommendation by discussion during a public meeting." Submission and Evaluation of Replies to the ITN After conducting an initial review of vendor submissions addressing the ITN's Minimum Mandatory System Requirements, the Department identified five vendors with the greatest degree of fit with the requirements of the ITN. On June 5, 2019, the Department posted ITN Addendum No. 3, which identified the following top five vendors that would be allowed to submit full replies to the ITN: Aspira, US eDirect, Sovereign Sportsman Solutions, Conduent, and Mission Critical Solutions of Tampa. A full reply was comprised of a business volume, which included a completed Price Sheet, a technical volume, and an operational volume. The Department established an evaluation team, which evaluated the five replies and identified the three highest scored vendors within the competitive range reasonably susceptible to an award with whom the 2 That selection criteria was not posted on VBS. Department would negotiate. The Price Sheet attached to the ITN was used by the evaluation team to evaluate the replies. On November 5, 2019, the Department posted its decision on VBS, inviting the top three vendors (Aspira, US eDirect, and Conduent) to participate in negotiations with the Department pursuant to Addendum No. 6 of the ITN. The parties agree that Aspira and US eDirect submitted responsive replies to the ITN and are responsible vendors. Site Visit, Demonstrations, Negotiations, and Strategy Sessions Following the evaluation of the replies to the ITN, the Department entered into the negotiation phase. The Department designated Fran Spivey as the lead negotiator and non-voting member of the negotiation team. The voting members of the negotiation team were Sasha Craft, a park manager; Warren Sponholtz, a Department IT specialist; Warren Poplin, a Department bureau chief for District 1, Division of Recreation and Parks; Carla Gaskin, a business expert with the Department; and Jim Brook, a Department business and contract supervisor.3 Prior to beginning negotiations, the Department invited the three vendors to a pre-negotiation site visit at Wekiwa Springs State Park ("Wekiwa") on November 22, 2019. Speed of entry of visitors into state parks is important. The Department chose Wekiwa because it is one of the busier parks in the state park system. The purpose of the site visit was to allow the vendors to observe "pertinent facilities and processes" and ask questions. The ranger station is the "hub" of where point-of-sale and reservation systems occur. Even though Wekiwa is one of the busier parks, only one ranger staffed the ranger station, which was typical. Points of interest to be observed during the site visit included observing traffic patterns and typical 3 Jim Brook was an alternate until May 21, 2020, and Warren Poplin was a subject matter expert until March 7, 2020, but both attended all the solution demonstrations. layout, functionality, and visitor interactions and park processes at the ranger station. During their site visit at Wekiwa, the vendors observed multiple campers waiting in line to make payments and the one ranger using two separate computers while working on multiple tasks, including "ringing up people as they came through the admission window, taking their payment, [and] answering the phone." At hearing, Mara Dombrowski, a planning consultant with the Department's Division of Recreation and Parks, who was involved in the development of the ITN, testified that "this one person has to be so efficient in order to keep things moving smoothly and quickly, getting people through the line, keeping the campers happy, checking them in quickly, really to keep the park running smoothly and operating." Following the site visit, the Department hosted meetings with each of the three vendors selected for negotiations so that the vendors could demonstrate the efficiency and operability of their proposed solutions to the ITN. Aspira demonstrated its solution to the Department at meetings held on March 10 and 17, 2020, and May 7, 2020. US eDirect demonstrated its solution to the Department at meetings held on March 11 and 18, 2020, and May 8, 2020.4 The vendors demonstrated their ability to run transactions to simulate entry into a state park. All devices demonstrated by US eDirect performed without issue. Mr. Poplin attended all the vendors' demonstrations. Mr. Poplin testified that Aspira failed to print a receipt during one of its demonstrations. On the other hand, Mr. Poplin described "US eDirect's printing of a receipt as 'instantaneous.'" Mr. Poplin was so impressed with the speed of US eDirect's printing of a receipt during its demonstration that he retained the receipt. 4 The Department also held demonstration sessions with Conduent, which is not a party to these proceedings. Ms. Craft, the park manager at TopSail Hill Preserve State Park, which contains the State's largest campground, also attended the vendors' demonstrations from her perspective as a park manager. As a park manager, Ms. Craft uses the POS and CRS systems on a daily bais. One of Ms. Craft's considerations as she watched the demonstrations was to observe the speed with which she could get visitors into the park. Ms. Craft observed that US eDirect's solution for check-in and POS items was integrated in an all-in-one system. At hearing, Ms. Craft testified that US eDirect's solution would be an improvement over the current system, which requires her to use two separate computers for POS and CRS transactions. Mr. Poplin and Ms. Craft also noted that Aspira's solution required a separate credit card machine. In addition, Ms. Craft noted and testified that under Aspira's solution, in order to process a credit card transaction, she would still have to manually select the type of credit card (i.e., Mastercard or Visa). On May 26, 2020, the Department revised the Price Sheet, Attachment 5, for the three vendors to resubmit their pricing prior to the beginning of negotiations. The Department revised the Price Sheet to include a separate section for value-added services so that vendor pricing for the core services and any value added services could be included in one cohesive document for the negotiation team's ease of reference. Throughout the procurement, the Department conducted internal strategy sessions with its negotiators, subject matter experts, and other personnel to discuss the procurement. The Department recorded these strategy sessions. After the demonstrations and initial strategy session meetings, the negotiation team began negotiations with the three vendors. The Department conducted separate negotiations with Aspira on June 9, 12, and 18, 2020, and with US eDirect on June 10, 16, and 18, 2020.5 During the negotiation phase, the negotiation team also conducted strategy sessions to strategize, discuss issues, and analyze the vendors' proposals. During strategy sessions, and as required by the ITN, the negotiation team developed and created the selection criteria to be used in determining "best value." During strategy sessions, the negotiation team also created an internal document titled "Best and Final Offer Guidelines" ("BAFO Guidelines"). Based on the sheer volume of information and time constraints, the negotiation team created the BAFO Guidelines as an internal aide if any individual members of the negotiation team felt they needed a tool to assist them in their individual review of the BAFOs. The BAFO Guidelines set out the selection criteria. Although the BAFO Guidelines contained a scoring matrix, weights, and subparts for the various criteria, negotiators were not required to score the BAFOs. The BAFO Guidelines that were utilized by certain individual negotiators were not collected or shared with any other negotiators.6 During the strategy sessions, including sessions held on June 16 and 17, 2020, the negotiation team decided to modify the Department's May 26, 2020, Price Sheet, Attachment 5, to attach to the Department's request for best and final offer ("RBAFO"). The Price Sheet f attached to the RBAFO was different from the Price Sheet attached to the posted ITN. During negotiations on June 18, 2020, Aspira asked the Department, "[I]s there a preferred path that you can say, you know, that DEP would like 5 The Department also conducted negotiation sessions with Conduent in June 2020. 6 The weights and subparts were created by the negotiation team in two strategy sessions. The Department did not provide the vendors with the BAFO Guidelines and the BAFO Guidelines were not posted on VBS. to have either it's everything--that one base fee is all-inclusive for everything that says it's included in the base fee or you'd like to have that additional hypothetical, if you want to do a kiosk, it's going to be an additional X dollars a month. Is there a proposed path?" The negotiation team stopped negotiation with Aspira and held a sidebar strategy session to discuss how to answer Aspira's question. The negotiation team understood that Aspira proposed to charge the Department the same flat-fee percentage price structure for the core solutions and any value-added services. The negotiation team realized that the revised Price Sheet did not provide spacing for Aspira to list its proposed percentage fee for value-added services. The negotiation team decided to modify the revised Price Sheet prior to BAFO submissions to allow Aspira to present its price for value-added services as a percentage of the transactions processed through individual value-added optional items. After the sidebar strategy session, negotiations resumed between the Department and Aspira. The negotiation team informed Aspira that the Price Sheet would be revised to allow for percentage based pricing for value-added services prior to the BAFO submissions. In response, Aspira asked again, "is there a preference that you can tell us that DEP would like as far as methodology?" In response, Mr. Brook responded, "we're fine with your methodology, we just want to confirm that is your methodology, that is your proposal. We understand that proposal to be, for a lack of a better way to describe it, a flat fee across all methods of revenue collection. And that's great, that's fine, yeah." The negotiation team, however, gave no indication of its preference nor instructions on how Aspira should price its proposed value- added services. During negotiations on June 18, 2020, Mr. Sponholts also explained to U.S. eDirect changes to the layout of the Price Sheet regarding value-added services, stating: So, some of the discussions we had, we were getting questions about, you know, how many of these are you going to need? How important is this? When are you going to need these? And, you know, usually our answers end up being, we're not really sure, it may be in a couple years. And we're gonna need at least some of them. So, I know it was hard for respondents to come up with some good pricing to be able to respond to that and make sure--like was alluded to the other day, make sure the backpack was filled correctly. So we've kind of changed the way we're asking for some of the pricing for additional and value-add items. And moving to more of a monthly service per-unit style approach, more of a--as a service approach. So, it allows us to consume and doesn't have to make any of the respondents kind of go out on a limb and to gamble on how much they think we need. So we've kind of listed everything here as-- into a per unit or a per-package pricing model on monthly fee. And then we would just pay for those items on a monthly basis. So, just want to make sure you understood the reason for that. The only exception for that is at the bottom. There are a couple of things that don't lend themselves to a service model, and that the-- Keep going down. MS. SPIVEY: Annual pass. MR SPONHOLTZ: Yeah, So, like the annual passes and the text messaging for mass communication, I know we've been going back and forth talking to you guys specifically about whether that's included in the base percentage or whether that's something outside of the base percentage. It's--but we'll leave the options in this sheet whether you can include it in your base fee or you can describe or you can present a more a la carte model. But the text messaging and the annual passes, they don't really lend themselves to a per-month model, they lend themselves to a per-month model, they lend themselves to more of a consumption model. So we want to leave that open for you guys to describe. That's it. Joint Ex. 63, pp. 1851-52. Contrary to Aspira's assertion, Mr. Sponholtz's comments to US eDirect during this negotiation session do not reflect a preference and direction to US eDirect that it should price its value-added solutions through an "a la carte" pricing model rather than a percentage-fee-based pricing model. As a review of the above comments and Mr. Sponholtz's testimony at hearing reflect, Mr. Sponholtz merely explained to both Aspira and US eDirect the Department's goal of moving more towards a service model approach (purchasing equipment as it is needed) and away from an ownership of equipment model approach because the Department did not want to own a lot of equipment it may not ever need. At hearing, Mr. Sponholtz explained that his comments made to both Aspira and US eDirect gave each vendor "flexibility to be able to price things so--to kind of move with our--move with our scale." As testified to by Mr. Sponholtz at hearing, his comments "fit[ ] in with the modification that the negotiation team [made] to the value-added prices on the final Price Sheet with the three columns of compensation." As further explained by Mr. Sponholtz at hearing: A: Right. So after speaking with all the respondents, we want to make sure the price sheet was set up such that it would work for the different pricing models. So we expected--we expected some different pricing models and we just wanted to provide some organization via the pricing sheet so that we could be able to, you know, review those pricing models, so that's why we put that in there. We also told them, though, that if they had aspects of their pricing model that did not match that format, then to go ahead and just add rows and columns and describe their pricing--pricing methodology and we would consider it. T., Vol. IV, p. 568. The second revised Price Sheet (Attachment 5; Joint Exhibit 24, pages 294 through 297) made clear to the vendors, "[i]f your pricing method for any service does not align with the models provided below, please insert rows and/or columns to the appropriate tables and describe your proposed pricing model in detail." Again, the Department did not dictate how the vendors should price value-added services; rather, the ITN and instructions allowed the vendors flexibility to choose how to configure and price any value-added services. The BAFOs and the Negotiation Team's Recommendation On June 19, 2020, the Department sent the three vendors an RBAFO, and the Procurement Officer emailed the three vendors: (1) the selection criteria on which the award would be based; (2) the second revised Price Sheet (Attachment 5); (3) the Department's Standard Contract to be signed and returned by the vendor selected for the ITN services; (4) Supplement Scope of Work Sample; and (5) Contract Certifications. BAFO's were due to the Department by June 26, 2020, at 4:00 p.m. Both Aspira and US eDirect timely filed BAFOs.7 The selection criteria for reviewing the vendors' BAFOs, as provided to the three vendors, provide as follows: F. SELECTION CRITERIA The Department shall make its determination of which solution provides the best value to the state based on the selection criteria below: Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the Department's technical requirements as 7 Attachment 5 of the RBAFO was not posted on the VBS. demonstrated by the BAFO, system demonstrations, and negotiation sessions. Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the Department's operational requirements for CRS as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the Department's operational requirements for POS as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the operational requirements for administrative and reporting web application as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Proposed staff experience (including proposed subcontractors) and respondent's responsibility as demonstrated by the entire response, system demonstrations, and negotiation sessions. Optional solutions: Respondent's articulation, innovation, and demonstrated ability of the proposed for the optional solutions as well as the approach availability and pricing as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Acceptance of standard contract terms and conditions including SLAs and financial consequences as demonstrated by the BAFO. Respondent's pricing as submitted in the BAFO. Joint Ex. 227, p. 7273. US eDirect's BAFO proposed a flat-fee percentage of 4.75% for its core solution during the initial term of the contract and 4.5% for its core solution for the renewal term of the contract. For value-added solutions, US eDirect proposed its proprietary Yodel System, which is comprised of a Yodel App for the public, Yodel Ranger App for park staff, and a Yodel camera and barrier gate. The Yodel system is a completely automated solution which reads license plates to grant park entry. US eDirect proposed a flat-fee transaction of $0.15-$0.40 depending on the equipment the Department chose to employ. This flat-fee would be paid by park visitors as a convenience fee for use of the technology. Additionally, US eDirect proposed other value-added solutions via an "a la carte model," by which the Department could pick and choose to employ other value-added solutions for an additional monthly charge. Aspira's BAFO proposed a flat-fee percentage of 4.95% for its core solution during the initial term of the contract and 4.7% for its core solution for the renewal term of the contract. Similar to US eDirect's proposal, Aspira's BAFO proposed a list of value-added solutions from which the Department could choose. However, Aspira proposed a price model for its value-added solutions based on the same flat-fee percentages as its core solutions (4.95% for the initial term and 4.7% for the renewal term). In addition, Aspira purposefully chose to leave its BAFO section for value-added solutions vague by not listing specific hardware. As Aspira explained to the Department during a negotiation session on June 18, 2020, Aspira wanted "flexibility going forward as to those vendors who introduce new hardware and their features and functions, to be able to substitute that hardware at that kind of standard fee percentage versus us having to do more complicated things or having you do capital expenditures…." Aspira also declined to specify the quantity of value-added solutions it would provide. Instead, Aspira vaguely indicated it would "'work together' [with the Department] to identify appropriate locations" for implementing value-added solutions which are "both financially viable and provide[s] an increase in customer service." On July 6, 2020, the negotiation team held a public meeting (Intent to Award Meeting) to discuss which vendor the team believed presented the best value to the State. Each negotiator commented on which vendor he or she believed provides the best value to the state based on the selection criteria. Mr. Sponholtz stated, from his IT perspective, that he liked US eDirect because its solution had a very clean and intuitive design. He also felt US eDirect had a very high rate of configurability, which was "super important" because of the diverse makeup of the parks throughout the State. Mr. Sponholtz further stated that US eDirect had a proven endpoint management software solution in place available to manage all those endpoints throughout the State. He characterized US eDirect as a "market leader in that sense." Mr. Sponholtz further stated that US eDirect "also performed very well during the demonstration," with "[n]o issues popp[ing] up during the demonstrations." Mr. Poplin felt US eDirect provided "really good innovativeness." He explained his rationale from the perspective of the Department's "field operations and the ease of use for our park-level staff and ease of site and use for our visitors as well." Mr. Poplin went on to state that one of the things he had been "pushing hard on for each one of the respondents was the speed of transactions." He thought it was very important to be "able to move our guests into the parks" because "we have several of our busy parks that bottleneck." According to Mr. Poplin, US eDirect demonstrated the faster solution. Ms. Craft, from her perspective as a park manager at Topsail Hill, stated that her "selection came down to the system that I felt was innovative and user friendly." For her, ease of use and speed of transactions for the field staff was important, and US eDirect's "fully innovative system would be perfect for our field operations." Both Ms. Gaskin and Mr. Brook viewed Aspira as the top solution during the preliminary vote. From Ms. Gaskin's perspective, the "main deciding factor" between US eDirect and Aspira was Aspira's "ability to leverage customers that they already have--from a marketing perspective." However, Ms. Gaskin acknowledged she is not "in the field" and "not an IT person," so she would "respect the opinions of those two who would actually be using the system." Mr. Brook also felt Aspira "offered proven customer reservation system and expertise" through its marketing channel ReserveAmerica.com. Thereafter, the negotiation team engaged in a discussion amongst themselves to try and reach a consensus on the vendor who presented the best value, and a second vote was taken. Mr. Sponholtz, Mr. Poplin, Ms. Craft, and Ms. Gaskin voted for US eDirect as the best value to the State. At hearing, Ms. Gaskin testified that she changed her vote after hearing Mr. Poplin's and Ms. Craft's comments related to the functionality and ease of use of US eDirect's system for field staff, which she decided was more important than marketing. Only Mr. Brook voted again for Aspira in the second vote. After the second vote, Mr. Brook said he believed consensus is important, that he and the program will move forward enthusiastically with US eDirect, and the negotiation team unanimously recommended the award to US eDirect.8 8 Aspira failed to prove the allegations in its Amended Petition that "[u]tilizing any website but Reserve-America will result in the loss of 40% of the State's revenue." Indeed, the belief regarding any potential loss of revenue by leaving the ReserveAmerica.com platform is speculative. In any event, Mr. Brook and Ms. Gaskin raised the issue of the revenue generated by Aspira's website and marketing during the award recommendation public meeting; the issue was discussed, and, as detailed herein, it was ultimately determined at the public meeting that other factors were more important in determining best value. At no time during the public meeting were scores discussed with the group. The negotiators did not mention scores or scoring during the public meeting. After the public meeting, the Department posted its Notice of Intent to Award the contract to US eDirect on the VBS. Aspira's Protest Aspira raises numerous issues, none of which warrant rescission of the Department's intended award to US eDirect. Comparison of Pricing Aspira's primary contention is that the negotiation team "failed to properly price the 'core services'" and conduct an "apples-to-apples" comparison of Aspira's and US eDirect's pricing models for the value-added solutions set forth in their BAFOs. The persuasive evidence adduced at hearing demonstrates that the negotiation team properly conducted a mathematical formulaic "apples-to- apples" comparison of the flat-fee percentage prices for the core services, and that the price offered by US eDirect for the core services was lower than the price offered by Aspira. As to the optional value-added services, each vendor was given the freedom to present its best value-added solutions and best price model for the value-added services. Contrary to Aspira's assertions, the extensive negotiations were handled properly and in a collaborative and non-biased manner with no competitive advantage given to US eDirect. The negotiation team properly considered the prices offered by Aspira and US eDirect for value-added services as part of their individual best value determinations, but price was not a determinative factor and was, therefore, given nominal weight. The negotiation team did not do an "apples-to-apples" comparison of the value-added services because each vendor's pricing model was different and, in any event, such an analysis was not required in determining best value. The pricing of value-added services was not the focus of the selection criteria or ITN. The ITN and selection criteria centered on the core services for a POS and CRS system; not the pricing for value-added services. The Department does not even know what value-added services it may purchase in the future. On the other hand, the Department is required to pay the core price upon execution of the contract. Under the facts of this case, it was well within the negotiators' discretion to accord nominal weight to the pricing of value-added services contained in the BAFOs and more weight to the core solution price, superior functionality, ease of use, and innovativeness of the core solutions offered by US eDirect. In sum, the persuasive and credible evidence adduced at the hearing demonstrates that the negotiation team's consideration of pricing was not contrary to the Department's governing statutes, rules, or the ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious. BAFO Guidelines Aspira also contends that the creation and use of the BAFO Guidelines by the negotiators violated the ITN's specification that "[t]he negotiation team will not engage in scoring but will arrive at its recommendation by discussion during a public meeting." The persuasive evidence adduced at hearing demonstrates that the negotiation team's best value determination was properly made by a discussion at the public meeting and not based on the use or scoring of the BAFO Guidelines. The negotiators understood that the BAFO Guidelines were merely a "tool" to aide them in their individual deliberations, and not a requirement of scoring the vendors. The negotiators who scored the vendors pursuant to the BAFO Guidelines did not share their individual scores with other negotiators or anyone else, and the scores were not turned into the procurement officer to tally. Instead, the negotiation team met in a public meeting and had a discussion as to whom they each believed represented best value--a discussion that did not include scores or scoring. After an initial vote, the negotiation team further discussed who they believed presented the best value. Notably, based on this discussion, Ms. Gaskin was persuaded to change her vote from Aspira to US eDirect. A second vote was taken and the negotiation team voted four to one in favor of US eDirect. After that, Mr. Brook was persuaded to change his vote and the recommendation of award was unanimous. In sum, the persuasive and credible evidence adduced at the hearing demonstrates that the negotiators' creation and use of the BAFO Guidelines was not contrary to the Department's governing statutes, rules, or, the ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious. Speed of Entry In its Amended Petition, Aspira further alleged that the negotiation team improperly considered speed of park entry as a factor in the award because the ITN does not address "speed of entry." However, the ITN is replete with language showing the Department's desire to increase the speed of entry for park visitors. For example, the ITN stated: (1) the Department is seeking a PBS with proposed solutions that "offer convenience to park visitors, staff, and management, and capabilities with DEP systems for mobile devices and personal computer dashboard, reporting, and management." (2) "To support the Division's mission, it is imperative that the Department have access to tools that are intuitive and efficient to use to ensure visitor satisfaction and stimulate customer-based marketing." (3) "Park Admission transactions are the primary focus of the POS. The POS must be a robust system to allow for fast and efficient park entry." (4) POS and CRS "[s]ystem must provide efficient and intuitive functionality to allow park staff to process transactions in a high-volume environment." (5) "All POS transactions and screen navigations will complete in under .2 seconds as measured at the POS location." In addition, Aspira understood through negotiations that speed of entry into the state parks was very important. During negotiations with Aspira, Mr. Brook told Aspira's representative that, "… and just to reiterate that we have an understanding that speed is of the essence in Florida state parks … speed is of the essence, speed of entry. So our goal is to make that even faster…." In response, Mr. Trivette, Aspira's chief executive officer, stated, "You guys have made it crystal clear, and frankly, if you look at the majority of the new technologies that we positioned in the ITN, they're pretty much all around speed, ease of entry, being consumer friendly and helping get people in the parks faster, which ultimately is a better consumer experience and drives additional revenue." The persuasive and credible evidence adduced at hearing demonstrates that the negotiation team's consideration of speed of entry into the park was not contrary to the Department's governing statutes, rules, or the ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious. In sum, the persuasive and credible evidence adduced at hearing demonstrates that the Department appropriately determined that the proposed award to US eDirect will provide the best value to the State based on the selection criteria. The Department's intended award to US eDirect is not contrary to the Department's statutes, rules, or the ITN specifications, clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the protest of Petitioner, RA Outdoors, LLC, d/b/a Aspira. DONE AND ENTERED this 15th day of October, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 15th day of October, 2020. Yodel system. As previously discussed, pursuant to the ITN, Aspira was free to propose whatever pricing method it desired for value-added services. At hearing, Mr. Trivette admitted that Aspira could have bid its proposal other ways, but it chose not to do so. At hearing, Aspira dropped the allegations within sections "H" and "I" of its Amended Petition. COPIES FURNISHED: Kristin Mai Bigham, Esquire Ronald Woodrow Hoenstine, Esquire Kathryn E.D. Lewis, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Thomas Porter Crapps, Esquire James Zubko Ross, Esquire Joy Ryan, Esquire Meenan P.A. 300 South Duval Street, Suite 410 Tallahassee, Florida 32301 (eServed) Kirsten H. Mathis, Esquire Meenan P.A. 300 South Duval Street, Suite 410 Tallahassee, Florida 32301 Richard E. Coates, Esquire Coates Law Firm, PL 115 East Park Avenue, Suite 1 Tallahassee, Florida 32301 (eServed) Marion Drew Parker, Esquire Christopher Brian Lunny, Esquire Radey Law Firm 301 South Bronough Street, Suite 200 Tallahassee, Florida 32301 (eServed) Dawn Stern, Esquire Richard P. Rector, Esquire DLA Piper, LLP 500 Eighth Street Northwest Washington, DC 20004-2131 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s request for withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. . Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Moto Dealer Import; LLC and Fiber Unlimited, Inc. d/b/a Eco Sports, LLC to sell motorcycles manufactured by Shanghai Shenke Motorcycle Co. Ltd. (SHEN) at 207 North Goldenrod Road, #200, Orlando (Orange County), Florida 32807. DONE AND ORDERED this t, of June, 2009, in Tallahassee, Leon County, Florida. LA. FORD, Directér Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division oppfrotor Vehicles this 22 A day of June, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: Jack Lin Moto Dealer Import, LLC 4998-B South Royal Atlanta Drive Tucker, Georgia 30084 Silva Michaela Fiber Unlimited, Inc. d/b/a Eco Sports, LLC 7526 Narcoosse Road Orlando, Florida 32822 Brian Schwartz Ride Green Florida 671 West Fairbanks Avenue Winter Park, Florida 32789 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Lawrence P. Stevenson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 , Jun 3.2009 «9:14 Fax: Jun 3 2009 08:11am P002/002 Moto Dealer import LLC 4995-5 South Royal Afanta Or. Tucker, GA 300% TEL: {6 78)937-1690 FAM (678}037-1695 June 2, 2009 Case # 09-2573 To Whom It May Concem: Moto Dealer Import LLC no longer wants Fiber Unlimited, Inc. d/b/a Eco Sports, LLC to be our dealer in Florida. MDI does not want to have a hearing or take any further action in the case. Ifyou need any additional information or have any questions I can be contacted at 678-937-1690. Thank you, Cc CAipt: Copies furnished: Jack Lin Jennifer Clark Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-308 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Brian Schwartz Ride Green Florida 671 West Fairbanks Avenue Winder Park, Florida 32789 Silva Michaela Fiber Unlimited, Inc. d/b/a Eco Sports, LLC 7526 Narcoosse Road Orlando, Florida 32822 Tiffany Stephens Zora Neal Hurston Building 400 West Robinson Street, Suite NI 14 Orlando, Florida 32801
Findings Of Fact On October 12, 1977, Sgt. Ilic and Capt. Harris, officers in petitioner's employ, inspected respondent's premises and found 15 sealed cartons of Pall Mall cigarettes wrapped in cellophane without tax stamps. In addition there were nine unopened packages and one opened package of Pall Mall cigarettes without tax stamps. Respondent Weaver admitted having sold about five cartons of unstamped Pall Mall cigarettes. In the course of the inspection, Sgt. Ilic discovered evidence of shares in a lottery. Respondent admitted that he sold chances in a lottery. In a subsequent interview with Sgt. Ilic, respondent admitted leasing the store to Fred Flemming and Emanuel Washington for approximately one year during which respondent was hospitalized.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for two weeks. That petitioner confiscate the unstamped Pall Mall cigarettes found on respondent's premises for the use and benefit of the state. DONE and ENTERED this 29th day of December, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dennis E. LaRosa Esquire Staff Attorney 725 South Bronough Street Tallahassee, Florida 32304 Herman Weaver d/b/a Eleventh Street Grocery 1110 NW Third Avenue Miami, Florida
