The Issue The issue in this case is whether the two corporate names and service/trademarks are so similar that they create confusion in the minds of the public and at Department of State.
Findings Of Fact The Petitioner, Computer Trends, Inc., filed articles of incorporation with the Department of State on April 16, 1984. Petitioner held its organizational meeting, used the corporate name, trademark, and tradename Computer Trends, Inc., on May 1, 1984. The Petitioner is engaged in the retail business of selling personal computers, peripherals, and computer supplies to individuals and small businesses. The system price of a typical sale is between $1,000 and $6,000. The Petitioner has one business location located in Port Richey, Florida. The Petitioner advertises statewide by various methods. The Petitioner has plans to open additional stores on the west coast of Florida. The Respondent Computer Trends filed its Articles of Incorporation with the Department of State on May 24, 1984 and registered "Computer Trends" as a trade and service mark on August 14, 1984. Computer Trends International, Inc., de-registered the trademark and service mark "Computer Trends" on December 11, 1984, and registered the trademark and service mark for Computer Trends International, Inc., on December 12, 1984. Computer Trends International is in the retail business of selling personal computers, peripherals, and computer software primarily to businesses. At present, Computer Trends International, Inc. has its business location in Orlando, Florida. It plans to expand its business operations to include state, national, and international offices. Computer Trends International's Business Plan Recap Summary for 1984 and Business Plan 1984/85 states Respondent intends to build numerous stores in 1985 and 1986 to include an outlet in Tampa, Florida. The intended market of Computer Trends International is the small business market which it projects will make up 80 percent of its total sales. There is no evidence that Computer Trends International utilized the words "Computer Trends" in its corporate name and trade/service marks with knowledge of the existence of Computer Trends, Inc., or any intent to infringe on its business. Computer Trends, Inc., and Computer Trends International, Inc., sell many of the same brand name computers and peripherals. Although the Petitioner sells computers for home use, at least 50 percent of the market is in small business computers. The Petitioner has a statewide WATS line, advertises statewide, and has intentions of expanding to other cities on the lower west coast of Florida. An operator in the Tallahassee Office of the Division of Corporations, Department of State, was queried about informational trends by Cynthia Armstrong, Vice-President of Computer Trends, Inc. The operator asked Armstrong, "which one, Computer Trends or Computer Trends International?" This was the only credible evidence of incidents related to confusion of corporate names presented by the Petitioner. The Petitioner and Respondent are both engaged in the retail sales of computers. The two corporations provide some of the same or similar types of goods and services. Both corporations use similar types of advertising media and maintain a substantial statewide business presence with an overlap of market area in the Tampa Bay area of Florida. The trade/service mark of the two corporations have very little in common except the words "Computer Trends." The trade/service marks use different colors, different style type, and different logos. The likelihood of confusion between the two trade/service marks is minimal. The two corporations while engaging in retail sales of computers and peripherals aim at different levels of the computer market place. The Petitioner's target market is home personal computers and personal computers utilized by small businesses. The target market for the Respondent is medium and large businesses using higher capacity personal computers.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That the Department of State should dismiss the petition. DONE and RECOMMENDED this 11th day of March, 1985 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 11th day of March, 1985. COPIES FURNISHED: S. Thomas Padgett, Esquire Post Office Box 737 Tampa, Florida 33601 Robert E. Mansback, Jr., Esquire Post Office Box 3000 Orlando, Florida 32802
The Issue This issues are whether Respondent violated Section 464.018(1)(h), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with regulating the practice of nursing pursuant to Section 20.43(m), Florida Statutes, and Chapters 455 and 464, Florida Statutes. Respondent is, and at all times material hereto, a licensed registered nurse in the state of Florida. Her license number is RN 1948882. Emory L. Bennet Veterans Nursing Home (the facility) is located in Daytona Beach, Florida. At all times relevant here, the facility employed Respondent as its Executive Director of Nursing. At all times material to this case, the facility had a written policy regarding the recording and implementation of verbal orders given by doctors over the telephone. The policy sets forth the following procedures: Verbal orders, including telephone orders, for medications and treatments are taken only by a registered nurse or other licensed or registered healthcare specialists in their own area of specialty and are immediately recorded, dated, and signed by the person receiving the order. Telephone and verbal orders are written in triplicate: Original copy to nursing office where it is promptly faxed, mailed or hand carried to physician for signature. Second copy remains on chart in designated area until signed copy is returned. Third copy is sent to pharmacy for inclusion in the following months [sic] printed doctor's orders. *All telephone and verbal orders are to be written on physician's order sheet by person receiving order. *All telephone and verbal orders by consulting physicians must be countersigned by attending physician. *After receiving telephone or verbal order, that order is to be noted. *All telephone and verbal orders are signed by the ordering physician within 48 hours. The facility's telephone/verbal order form, in triplicate, includes space for the following information: (a) facility name and address; (b) patient name, admission number and room number; (c) attending physician name; (d) date and time of order; (e) date order discontinued; (f) order; (g) signature of nurse receiving order; (h) signature of physician; (i) date of physician signature; (j) initials of nurse notating orders on various documents in patient's medical chart, including but not limited to, nurse's notes, patient care plan, doctor's order sheet, and medication administration record; (k) initials of nurse sending copy of order to pharmacy; and (l) date, time and signature of nurse communicating or following through with order. At all times material here, the facility had an "at- risk committee" (committee) that met at least once a week. The purpose of the committee was to review and make recommendations on patient care issues, including but not limited to, weight loss, bedsores, and falls. For patients considered to be "at risk," the committee's recommendations were supposed to be recorded on a "Residents at Risk" form. This form listed the following: (a) patient's room number; (b) patient's name; (c) problem/concern; (d) recommended intervention; (e) person responsible; (f) date; and (g) follow-up. After the committee made a recommendation that required physician approval, the nurse following through with the recommendation was supposed to contact the doctor by telephone or facsimile transmission, seeking his or her approval. Changes in medication could not be implemented without prior approval from the doctor. If the nurse received a physician's approval in a verbal order, the nurse was supposed to fill out and sign a telephone/verbal order form. The nurse would then implement the order herself or delegate that responsibility to a floor nurse. If a second nurse implemented the verbal order, she would add her initials and signature in the appropriate places, indicating the date and time of each action taken. The doctor would sign the telephone/verbal order form on his next visit to the facility. Respondent was the chairperson of the committee at all times relevant here. Other members of the committee included the following: nursing supervisor for the seven a.m. to three p.m. shift, consultant dietitian, food service director, rehabilitative/restorative supervisor and therapist, care plan coordinator, infection control nurse, and social service director. Occasionally, the facility's pharmacist and administrator participated in the committee meetings. Pursuant to the facility's policy, a telephone order form was to be filled out immediately after and not before receipt of a verbal order from the doctor. Despite this policy, the committee, before and during Respondent's tenure as Executive Director of Nursing, routinely recorded its recommendations for at-risk patients on a telephone/verbal order form as well as the "Residents at Risk" form. On March 23, 1999, Respondent conducted a committee meeting. In addition to Respondent, the following people attended the meeting: (a) Joan Locke, nursing supervisor of the seven a.m. to three p.m. shift; (b) Lee O'Malley, therapist; (c) Sandra F. Law, infection control nurse; (d) Gersom Marchena, social services director; and (e) Debra Weaver, listed as other. During the meeting, Respondent filled out the "Residents at Risk" form for seven patients, including C.K. She did not list W.A. as an at-risk patient. The committee discussed, among other things, standing physician orders for Ativan to be administered to C.K. and for Vistaril to be administered to W.A., both prescriptions on an as needed basis. The committee was concerned due to C.K.'s history of falls and because W.A. appeared to be overly sedated. Ativan and Vistaril are psychotropic medications. Respondent expressed her opinion that the three p.m. to eleven p.m. nursing staff was lazy and using the medicines as chemical restraints for C.K. and W.A. Respondent then directed her subordinate nursing supervisor, Joan Locke, to fill out telephone/verbal order forms discontinuing Ativan for C.K. and Vistaril for W.A. Respondent knew or should have known that the telephone/verbal order forms should not have been completed until after the doctor verbally approved the committee's recommendations. Following Respondent's instructions, Ms. Locke filled out the telephone/verbal order forms to discontinue the above- reference medicines for C.K. and W.A. She did not sign the forms as having received the orders from the doctor. Instead, Ms. Locke gave the telephone/verbal order forms to her subordinate, Barbara Majors, a licensed practical nurse. Ms. Locke instructed Ms. Majors to follow through with the orders. Ms. Majors incorrectly assumed that a doctor had verbally approved the changes in medication for C.K. and W.A. Ms. Majors then signed the forms on the lines for the signature of the nurse receiving the orders. Ms. Majors proceeded to make the proper notations in the patients' charts, to send copies of the orders to the pharmacy, and to remove the medicines from the patients' respective drawers in the medication cart. When the shift changed at three p.m. on March 23, 1999, the nursing supervisor for the three p.m. to eleven p.m. shift was Mary Lou McMaster, R.N. Ms. McMaster questioned the change in medication for C.K. and W.A. Ms. McMaster was unsuccessful in her attempt to contact Dr. Timothy Johnston, the facility's medical director, to verify the orders. Because she was unable to contact Dr. Johnston, Ms. McMaster contacted the facility's pharmacist, Rhomell Calara. Later in the evening of March 23, 1999, Mr. Calara contacted Dr. Johnston by telephone. During the conversation, Dr. Johnston made it clear that he had not approved orders to discontinue medicines for C.K. and W.A. and did not intend to do so. As a result of this telephone call, the medicines were not discontinued. The next morning, March 24, 1999, in a meeting of department heads, Mr. Calara questioned Respondent about the telephone/verbal orders. Respondent did not attempt to explain that the telephone/verbal orders were written as the committee's recommendation. Instead, Respondent stated that she was going to have the medications discontinued again because the afternoon shift was using them as chemical restraints and the patients were too sedated during the day. On the morning of March 25, 1999, Dr. Johnston attended the facility's meeting of department heads. During the meeting, Dr. Johnston questioned Respondent regarding the committee's procedures for implementing physician orders. When Dr. Johnston asked Respondent if she had given a direct order to discontinue the medications or a recommendation to discontinue them, Respondent got up and left the meeting. Respondent did not attempt to explain that the committee's recommendations were written as telephone/verbal orders as a result of miscommunication or other inadvertent mistake.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $500, placing her on one year's probation with conditions, and requiring her to take appropriate continuing education courses. DONE AND ENTERED this 17th day of January, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 17th day of January, 2001. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Williams and Holz, P.A. 211 East Virginia Street Tallahassee, Florida 32301 Reginald Moore, Esquire 559 Dr. Mary McLeod Bethune Boulevard Suite 1 Daytona Beach, Florida 32115 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times pertinent hereto, respondent, Margarita B. Santos, held alcoholic beverage license number 23-09660, series 2-APS, for the premises known as Super Discount (the "premises"), located at 8191 N.W. 27th Avenue, Miami, Dade County, Florida. Neither respondent nor the premises were, at the time, authorized to receive or possess U.S.D.A. Food Coupon Books. On or about November 26, 1991, Detective William Hladky of the Metro- Dade Police Department, as well as other officers associated with such agency, began an undercover investigation of the premises. Such investigation was predicated on information Detective Hladky had received from a confidential informant which indicated that persons associated with Super Discount were dealing in stolen property. On November 26 and 27, 1991, and December 4 and 10, 1991, Detective Hladky gave cartons of Florida tax stamped cigarettes, which he had secured from a Winn Dixie Supermarket, to Detective Marvin Baker, who was operating undercover, for the purpose of attempting to sell such cigarettes to persons inside the licensed premises as ostensibly stolen property. Additionally, on December 4 and 10, 1991, U.S.D.A. Special Agent Carol Bennett provided Detective Baker with U.S.D.A Food Coupon Books and on December 19, 1991, provided a Detective Maltbia-Williams with U.S.D.A. Food Coupon Books for the same purpose. At hearing, neither Detective Baker nor Detective Maltbia-Williams appeared, and no competent proof was offered to demonstrate what occurred, if anything, upon the premises with regard to such ostensibly stolen property. Accordingly, petitioner failed to demonstrate, as alleged in the notice to show cause, that respondent either personally or through her agent, servant or employee violated the provisions of Section 812.019(1), Florida Statutes, by trafficking or endeavoring to traffic in cartons of cigarettes she knew or should have known were stolen (Counts 1, 2, 3 and 6); violated the provisions of Section 561.29, Florida Statutes, by purchasing U.S.D.A. Food Coupon Books in a manner not authorized by law (Counts 4, 7 and 9); and violated the provisions of Section 812.019(1), Florida Statutes, by trafficking or endeavoring to traffic in U.S.D.A. Food Coupon Books she knew or should have known were stolen (Counts 5, 8 and 10). 1/ On December 30, 1991, petitioner's Special Agent Dennis Wilson, together with Detective Hladky, entered the premises to arrest respondent and her employees, as a consequence of Detective Hladky's investigation. Incident to such entry, Special Agent Wilson conducted an inspection of the premises and located six one-liter bottles of 86 proof Dawson Deluxe Blended Scotch Whiskey in the premises' stock room. According to respondent, such whiskey was intended as Christmas gifts for the mail carrier and other persons who provided services to the premises, and not for sale at the premises. Incident to respondent's arrest, Special Agent Wilson searched the contents of respondent's purse, and discovered two U.S.D.A. Food Coupon Books, with a value of $50.00 each, whose serial numbers matched those entrusted to Detective Maltbia-Williams on December 19, 1991. According to respondent, one of her employees gave her the books, she proposed to use the coupons to purchase food for a party, and she did not realize that possession of the coupons was illegal. Apart from respondent's testimony, there is no proof as to the manner in which she acquired the coupons or her intended use of the coupons. 2/ In cases involving possession of beverages not permitted to be sold under the license, it is petitioner's established policy to impose a $500.00 fine or 10-day suspension.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing Counts 1 through 11 of the notice to show cause, finding respondent guilty as charged in Count 12 of the notice to show cause, and assessing a civil penalty in the sum of $500.00 against respondent's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of September 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September 1992.
The Issue Whether Freda Sherman Stevens (Respondent), a candidate in the 2008 primary for a seat in the Florida House of Representatives, willfully violated section 106.07(5), Florida Statutes (2008), by certifying that six of her campaign reports were true, correct, and complete when they were not. Whether Respondent willfully violated section 106.19(1)(c), Florida by falsely reporting, or deliberately failing to report information required to be reported by chapter 106, Florida Statutes (2008).1/
Findings Of Fact Respondent was a candidate for the House of Representatives, District 100, in the August 26, 2008, primary election. As a candidate for the Florida Legislature, the Division of Elections of the Florida Department of State (the Division), was Respondent's filing office, and Respondent was required to file all her reports electronically. On October 30, 2007, Respondent filed with the Division her Appointment of Campaign Treasurer and Designation of Campaign Depository form listing herself as treasurer for her 2008 campaign. On November 1, 2007, Ms. Bronson sent Respondent a letter acknowledging that Respondent had been placed on the 2008 active candidate list. The letter advised Respondent that all candidates filing reports with the Division were required to use the electronic filing system (EFS) and provided Respondent with a personal identification number (PIN) and initial password to grant access to the EFS. The user was expected to change the initial password after logging on for the first time. Ms. Bronson's letter included the following information: You, your campaign treasurer, and deputy treasurers are responsible for protecting these passwords from disclosure and are responsible for all filings using these credentials, unless the Division is notified that your credentials have been compromised. * * * Each campaign treasurer's report filed by means of the EFS is considered to be under oath by the candidate and campaign treasurer and such persons are subject to the provisions of Section 106.075(5), Florida Statutes. * * * An online guide is available to you on the EFS to assist with navigation, data entry, and submission of reports. The Division of Elections will also provide assistance to all users by contacting the EFS Help Desk at (850) 245-6240. All of the Division's publications and reporting forms are available on the Division of Election's web site at http://election.dos.state.fl.us. It is your responsibility to read, understand, and follow the requirements of Florida's election laws. Therefore, please print a copy of the following documents: Chapters 104 and 106, Florida Statutes; Candidate and Campaign Treasurer Handbook (September 2007 edition); 2007-2008 Calendar of Reporting Dates; and Rule 1S-2.017, Florida Administrative Code. When a campaign report is submitted electronically through the EFS, both the candidate and treasurer's PINs must be entered into the website. Though it is possible for either the candidate or the treasurer to give their PINs to another individual to enter the report on their behalf, the candidate remains responsible for the PINs and the filed reports. Respondent did little to educate herself as to her responsibilities as a candidate and as the treasurer for her campaign. She could not even remember whether she read Ms. Bronson's letter, and she did not remember whether she had read the handbook referred to by Ms. Bronson. Respondent did not attend any candidate trainings offered by the Broward County Supervisor of Elections Office. On November 21, 2007, Respondent resigned as treasurer and appointed her mother, Clementine Sherman, as her new treasurer. On December 5, 2007, Ms. Bronson sent a letter to Ms. Sherman, with a copy to Respondent, acknowledging Ms. Sherman's appointment as treasurer and providing the same information contained in Ms. Bronson's letter to Respondent dated November 1, 2007 (and discussed above). On January 29, 2008, the Division accepted Respondent's appointment of herself as her deputy treasurer. Respondent did not have a system for keeping track of campaign contributions or expenditures. Pursuant to section 106.07, Florida Statutes (2008), Respondent was required to file periodic reports listing "all contributions received, and all expenditures made, by or on behalf of her candidacy." At all times relevant to this proceeding, Respondent has been the owner of Prodigal S & D Corporation, which does business as Green Apple Association of Christian Schools (Green Apple). Respondent was authorized to issue and sign checks on the bank account owned by Green Apple. In August 2008, shortly before the primary election, Respondent placed an order with WPLG-TV for airtime to disseminate political advertisement for her campaign. The script used in the advertisement aired on WPLG included the following: "Please vote Freda Stevens for State Representative District 100 on August 26. Thank you."2/ On August 6, 2008, Respondent signed two checks made payable to WPLG. Both checks were drawn on the same bank account owned by Green Apple. Check 1050 was in the amount of $13,812.50. Check 1051 was in the amount of $680.00. Both checks were made payable to WPLG in payment for political advertising that Respondent had purchased from WPLG. When Respondent signed those checks to WPLG, she knew, or should have known, that there were insufficient funds in both the Green Apple account and her campaign account to cover the checks. On August 15, 2008, Respondent signed check number 1053 payable to WPLG that was drawn on the same bank account owned by Green Apple as checks 1050 and 1051. Check number 1053 was in the amount of $7,161.25 and was used to pay for political advertising that Respondent bought from WPLG prior to the primary election. When Respondent signed check numbered 1053 to WPLG, she knew, or should have known, that there were insufficient funds in both the Green Apple account and her campaign account to cover the check. Check numbered 1050 and 1051 were returned to WPLG for non-sufficient funds. WPLG did not deposit check numbered 1053. Respondent filed an original and five amended 2008 F3 Reports. Respondent certified that each report was true, correct, and complete. All reports were filed electronically utilizing the PIN number given to Respondent by Ms. Bronson. On August 22, 2008, Respondent filed her "Original Report." That report listed no campaign contribution from Green Apple, and it failed to list campaign expenditures to WPLG or other media. Because of those omissions, the report was not accurate, and it was not complete. On August 23, 2008, Respondent filed a first "Amended Report." That report listed five in-kind contributions from Respondent with the descriptor "media" under each contribution. The amounts of the in-kind contributions were $13,812.50; $680.00; $3,185.85; $7,161.25; and $3,187.00. That report was inaccurate because the in-kind contributor for three of the in- kind contributions ($13,812.50; $680.00; and $7,161.25) was Green Apple, not the Respondent.3/ Respondent lost the primary election. After the election, on August 30, 2008, Respondent filed a second "Amended Report." The five in-kind contributions from Respondent with the descriptor "media" that had been on the first "Amended Report" were deleted from the report and were replaced with the following four in-kind contributions with the reported date of the contribution in parentheses: $13,812.50 (August 6); $3,187.50 (August 20); $3,128.85 (August 18); and $680.00 (August 6). That report was inaccurate because the in-kind contributor was Green Apple, not the Respondent. That report also failed to report the check in the amount of $7,161.25 that Green Apple had issued to WPLG on August 15. On November 24, 2008, Respondent filed a third "Amended Report", a fourth "Amended Report", and a fifth "Amended Report." The third "Amended Report" deleted the in- kind contribution from Respondent dated August 6, in the amount of $13,812.50, and with the descriptor "media." The fourth "Amended Report" and the fifth "Amended Report" reflected no contributions, only expenditures, none of which was for media. These "Amended Reports" were incomplete and inaccurate. WPLG attempted to collect the monies owed by Respondent's campaign. Clementine Sherman remitted a payment (by cashier's check) in the amount of $6,000.00 on August 27, 2008.4/ Respondent remitted three money orders that were deposited September 28, October 15, and December 22, 2009, respectively. These money orders were in the amounts of $200.00, $200.00, and $680.00. These payments were not reflected on any report filed by Respondent.
The Issue The issue to be determined is whether Petitioner's application for licensure as a resident life, including variable annuity and health insurance agent, should be granted.
Findings Of Fact The Department is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2003). On September 19, 2003, Petitioner filed an online application with the Department seeking licensure as a resident life, including variable annuity and health insurance agent. The online application form filled out by Petitioner included the heading title: Florida Department of Financial Services Bureau of Agent and Agency Licensing Application for New License The first page of the online application includes space for "Licenses Applied for," in which the designation "02-15 – Resident Life Including Variable Annuity & Health Insurance Agent" was inserted. Also referred to on the first page of the application are the "Application Fee," "License Card Fee," and "Exam Fee" that would be due. The final section of the online application, titled "Step 8: Summary," is a two-page document that must be printed and personally signed by an applicant. The second page of the Summary document contained the following language: Applicant Affirmation Statement I do solemnly swear that all answers to the foregoing questions and statements are true and correct to the best of my knowledge and belief; that I understand the Laws of Florida and the rules promulgated by the Insurance Commissioner for the class of business for which I hereby request a license. . . . and [] that I have not withheld any information on myself that would in anyway affect my qualifications. * * * Under penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of The Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s). (emphasis added) A space for the Petitioner's signature is provided immediately below the "Applicant Affirmation Statement." Petitioner admits that she read the online application, completed it, electronically sent it to the Department, physically signed the disclosure form and mailed it to the Department via U.S. Mail. The online application form filled out by Petitioner for the license at issue in this proceeding included the following question: [h]ave you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Petitioner answered the question in the negative. The criminal history records obtained by the Department during the application process revealed that in 1991, Petitioner was charged with three felony counts related to the sale of a controlled substance. Petitioner ultimately pled guilty to a single felony charge of possession of a controlled substance in State of Nevada v. Michelle Lee Whitman, Case No. C98783B. Petitioner was adjudicated guilty of the charge, given a one-year suspended sentenced, and placed on two years of probation. Petitioner completed her probation, and the state of Nevada restored her civil rights as of July 1, 2003. She was notified that her civil rights had been restored in a letter from the Nevada Department of Public Safety dated November 5, 2003. Neither the letter nor Nevada law contains any language relating to a right not to disclose a conviction to employers. In a letter to the Department following the denial of her application, as well as during her testimony, Petitioner asserted that Nevada law gave her the right to withhold the information concerning her prior conviction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Petitioner violated Subsection 626.611(2), Florida Statutes (2003), and denying Petitioner's application for licensure, without prejudice for her to reapply as provided in the Department's rules. DONE AND ENTERED this 19th day of July, 2004, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 July, 2004. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Michelle L. Lowe 791 Arthurs Court Tarpon Springs, Florida 34689 Honorable Tom Gallagher, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact At all times material hereto, respondent, Ahmad Enterprises, Inc., held alcoholic beverage license number 23-10516, series 2-APS, for the premises known as Lucilles Market (the "premises"), located at 9300 N.W. 17th Avenue, Miami, Dade County, Florida. Ibrahim M. Ahmad is the respondent's sole corporate officer. In January 1992, Detective Hladky of the Metro-Dade Police Department and U.S.D.A. Special Agent Carol Bennett began an undercover investigation of the premises. Such investigation was predicated on information Special Agent Bennett had received from a confidential informant (CI) which indicated that persons associated with Lucilles Market were purchasing U.S.D.A. Food Coupons for cash and at less than their face value. On January 13, 1992, Special Agent Bennett gave the CI four U.S.D.A. Food Coupon Books, having an aggregate face value of $245.00, for the purpose of attempting to sell such books to persons inside the licensed premises. The CI then entered the licensed premises, met with Ibrahim M. Ahmad, and sold him the four coupon books for the $125.00 Mr. Ahmad offered. Pertinent to Mr. Ahmad's knowledge of the impropriety of his conduct, it is observed that on this occasion Mr. Ahmad inquired of the CI as to whether or not he worked for the police department before he would consummate the transaction. On January 21, 1992, Special Agent Bennett gave the CI six U.S.D.A. Food Coupon Books, having an aggregate face value of $360.00, for the purpose of attempting to sell such books to persons inside the licensed premises. When the CI entered the licensed premises, he again met with Mr. Ahmad, and sold him the six coupon books for the $200.00 Mr. Ahmad offered. Special Agent Bennett recovered 100 percent of the food coupons, which were clearly marked "non-transferable," through the Federal Reserve Bank. Each coupon involved in the aforesaid transaction had been deposited to the account of Ahmad Enterprises, Inc., at America First Bank, Miami, Florida, which reflects that respondent was reimbursed the full face value of the coupons by U.S.D.A. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered revoking respondent's alcoholic beverage license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of December 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December 1992.
The Issue The issue for determination is whether Petitioner owes unpaid sales and use tax, interest, and penalties for the period of February 1, 1994 through June 30, 1998.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings are made. Petitioner, Macfarlane, Ferguson, & McMullen, P.A., ("Macfarlane"), is a law firm located in Tampa, Florida. In May 1993, Macfarlane entered into a Copy Control Services Agreement ("1993 Contract") with Copy Control Center ("CCC"). The 1993 Contract, which was effective for three years, called for CCC to provide copying services within the physical confines of the MacFarlane law firm. CCC provided the personnel and MacFarlane provided the equipment and space for copying. The 1993 Contract called for a flat rate charge to Macfarlane. This stated flat rate charge covered a maximum number of copies each month. Pursuant to the terms of the 1993 Contract, so long as MacFarlane did not make more than 160,000 copies per month, it was charged a flat rate of $10,000 per month. Additional copy-related work over the flat rate charge for the maximum of 160,000 copies was at additional cost. An appendix to the 1993 Contract set forth the additional costs not covered by the flat monthly fee. If no copies were made under the contract, the base fee of the $10,000 would still have to be paid by Macfarlane. Paragraph 4 of the 1993 Contract required CCC to bill Macfarlane "monthly for the preceding month's copies." That paragraph of the 1993 Contract also provides that, "[i]ncluded with the invoice will be a detailed monthly usage report." The invoices issued under the 1993 Contract listed all costs for the month or preceding month. At the bottom of each invoice, CCC listed a total "sale amount" which consisted of the total of the copying facilities management charge and the additional charges. Between May 1993 and January 1994, Macfarlane paid sales tax on the total amount invoiced under the 1993 Contract (i.e. for all goods (copies) and services). In 1993 and 1994, the Department audited CCC. The audit was conducted by Elizabeth Sanchez, an auditor employed by the Department. Based on the 1993 and 1994 audit of CCC, the Department, through its auditor, Ms. Sanchez, alleged that CCC was not properly collecting sales tax from its clients, such as Macfarlane. Specifically, Ms. Sanchez determined that CCC should not have been taxing the entire cost of the 1993 Contract since a portion of the contract was related to services. Instead, the auditor represented that CCC should only tax the direct materials for the photocopy process (paper, toner, developer, and other supplies). Ultimately, CCC was assessed $16,000 in back taxes because it failed to pay sales tax on direct materials. During the aforementioned audit of CCC, Ms. Sanchez developed a formula which CCC could use in charging sales and use taxes to its clients. The formula was discussed with CCC personnel. CCC believed that the formula devised by Ms. Sanchez required or allowed the allocation of tax between nontaxable services and taxable photocopy consumables. Based on its understanding of the formula, CCC quit taxing Macfarlane for the entire amount of the monthly invoices issued under the 1993 Contract. Rather, consistent with its understanding of what was allowed under Ms. Sanchez's formula, CCC modified its billing to allocate tax between what CCC considered to be the facilities management services rendered under the 1993 Contract and the photocopy consumables used under that contract. The Department does not dispute that Ms. Sanchez developed a formula during the 1993 and 1994 audit of CCC. In fact, in the Department's Response to Petitioner's Request for Admissions, the Department admits that "Ms. Sanchez did audit Copy Control Center . . . and did develop a formula during that audit." However, the Department contends that the formula developed by Ms. Sanchez has no basis in law and fact and her actions are contrary to Rule 12A-1.0161(7)(a), Florida Administrative Code. According to the Department, that Rule requires both a statement of the actual cost of the taxable sales and the nontaxable services and the separation of taxable sales from non-taxable services in a contract or invoice for the service to be untaxed. In 1996, Macfarlane executed a new Copy Control Services Agreement with CCC (the "1996 Contract"). The 1996 Contract, dated May 22, 1996, was in effect from May 1996 through April 30, 2000. The 1996 Contract contained similar terms and conditions as the 1993 Contract, including a flat-rate charge and a maximum number of copies before additional charges were imposed. The flat-rate charge in the 1996 contract was $10,200 and the maximum number of copies before additional charges were imposed increased to 170,000. Additional copy- related work over the flat rate charge was at additional cost. The additional costs not covered by the flat monthly fee were set forth in an appendix to the 1996 Contract. Paragraph 6 of the 1996 Contract was entitled "Invoices." That section provides in pertinent part the following: A summary invoice for all Customer Locations shall be sent by Copy Control to the bill-to address and contact person of the Customer set forth hereinbelow, on a monthly basis. The monthly minimum base charge will be invoiced on the first day of each month. Additional charges for copies in excess of target volume or additional services from the previous month will be included with this invoice. In addition, Copy Control specifically agrees to provide to such Customer contact person, on a monthly in arrears basis, a summary report of the C.C.M. [Copy Control Management] Services transaction activity at, (A) all Customer Locations; and, (B) the Copy Control back-up facility, if any ("Summary Report"). Each Summary Report will contain, at a minimum, the following information: The total volume of Copies rendered; The number of Copies rendered per Customer location; The number of Copies above the Targeted Copy Volume, if any, and total Excess Copy Charge therefor by Customer Location and Copy Control back-up facility; The volume of Copies and associated dollar amount rendered at Copy Control's back-up facility, if any; The number of Copies "short" of Targeted Copy Volume; Additional Supplies procured, if any; Amount of overtime paid, if any, for Copy Control Personnel and dates therefor; A description of the Related Services, if any provided by Copy Control and the charge(s) therefore, if any; (emphasis supplied) Consistent with the terms of the 1996 Contract, CCC rendered an invoice to Macfarlane each month during the term of the contract and during the remainder of the audit period covered by that contract. Each invoice listed charges for making copies and off-site copies and other copy-related work and/or materials and products. Under the line for "Copying Facilities Mgt. Billing" were the additional charges made according to the appendix to the contract. The following invoice, dated June 30, 1995, is representative of the monthly invoices issued by CCC to Macfarlane during the period covered by the Department's audit of Macfarlane. That invoice provides in material part the following: COPY CONTROL CENTER INVOICE NO. 131611 3907 W. Osborne Avenue Tampa, Florida 33614 SOLD TO: MacFarlane Ausley & et al 23rd Floor LeeAnn Conley 111 E. Madison Street Tampa, Florida 33602 INVOICE DATE 6/30/95 QYT. ORDERED 1 QTY. SHIPPED 1 ITEM NO. COPIES DESCRIPTION COPIES UNIT PRICE 10000.00 Copying Facilities Mgt.Billing for June 23913 23913 Copies Copies Overage 0.04 1 1 TAX Tax on CCM Material 106.39 1 1 Copies Off Site Services 349.36 1 1 TONER 90 TONER 174.25 9 9 STOCK 8 1/2 x 11 White Paper 2.85 SALE AMOUNT 11612.17 MISC. CHARGES 6.500% SALES TAX 35.70 FREIGHT TOTAL 11647.87 For all the invoices generated under the 1996 Contract, CCC taxed Macfarlane in accordance with its understanding of the formula devised and recommended by Ms. Sanchez. Based on application of this formula, Macfarlane was charged and remitted only sales tax for the consumable goods portion of the contract. During the audit period which is the subject of this proceeding, February 1, 1994 through June 30, 1998, the sales tax was either 6.5 percent or 7 percent, whichever was in effect at the time of the invoice. The sales tax listed on the invoices do not reflect tax on the total amount of the invoice. A multiplication of the total amount by either 6.5 or 7 percent reveals that the amount of sales taxes paid by Macfarlane for the audit period in question, February 1, 1994 through June 30, 1998, was only on a small portion of the total invoice billing. The 1993 Contract and the 1996 Contract between Macfarlane and CCC do not address, contain language, or speak directly to any "facilities management services." Neither do the contracts define the terms "service," "related services," or "other related services." Although the terms listed in paragraph 22 above are not defined in the 1993 Contract and the 1996 Contract, Mr. Cayo, the regional operations manager of Lanier Professional Services (LPS), formerly CCC, testified that other services included facilities management services. According to Mr. Cayo, "facilities management" at Macfarlane included making deliveries and rounds, key-oping equipment, filing, supporting, and cleaning and setting up conference rooms. Diane Garner, an employee of CCC, was assigned to work at Macfarlane during the time of the audit period which is the subject of this proceeding. Ms. Garner testified that facilities management services or other services provided by CCC included providing coffee service, sorting mail, sending and delivering faxes, sending and delivering Federal Express packages, moving boxes, ordering and delivering office supplies, and making interoffice mail runs. If the above-described facilities management services were provided, none of the invoices sent by CCC to Macfarlane separately listed any charges to Macfarlane for those services. Moreover, CCC did not separately list on its invoices to Macfarlane a charge for "mail delivery," "filing," "charge-back accounting," or "clerical services," or any other such services. If these services were deemed "related services," the provisions of the 1996 Contract quoted in paragraph 16 required that a description of such services be provided on the invoice or summary report. No description of the foregoing services appears on any of the invoices prepared by CCC and issued to Macfarlane. No other contracts existed between CCC and Macfarlane during the audit periods which reflect that the services described in paragraphs 23 and 24 above would be offered or provided by CCC to Macfarlane. The Department audited Macfarlane in 1999. The audit was conducted by Darlene Bebbington, an auditor with the Department. During this audit, contrary to the position of Ms. Sanchez during the aforementioned audit of CCC, the Department stated that Macfarlane was required to pay tax on the full amount of the invoices. This conclusion was reached by Ms. Bebbington based on the information contained on each invoice. The invoices did not itemize or otherwise separately list or detail products, materials, and/or services that were exempt from tax. To address issues raised by Ms. Bebbington during the audit, Macfarlane sought information from CCC regarding the sales tax amounts that were listed on the invoices. In response, CCC provided two letters to Macfarlane, one dated April 29, 1999, and the second one dated September 22, 1999. In the April 29, 1999, letter to Macfarlane, Mr. Cayo explained how the company handled the sales tax issue for Facilities Management customers and the rationale for doing so. Mr. Cayo stated that during the Department's audit of CCC, Ms. Sanchez indicated that "Facilities Management" was a service and it "was not subject to be taxed." In the letter, Mr. Cayo also stated that all equipment and material used in the performance of these services needed to be taxed, but not the total "Facilities Management" charge. The September 22, 1999, letter was from Andrew Schutte, Finance Manager of LPS, formerly CCC, to Macfarlane and was in response to a specific inquiry from Macfarlane. In that letter, Mr. Schutte stated that the two full-time CCC employees working at the Macfarlane office assigned 87 percent of their collective time performing various facilities management services and spent approximately 13 percent of their collective time making photocopies. However, the letter did not indicate how Mr. Schutte arrived at the quoted percentages or the time period for which those percentages applied. Based on CCC's claim that the formula devised by Ms. Sanchez was used to calculate the amount of sales tax it should charge Macfarlane, Ms. Bebbington pulled CCC's audit file from the Department's records. The Department contends that any agreement to use a formula such as the one described in paragraph 10, should have, by Department policy, been in writing, signed by the auditor and the supervisors, and placed in the audit file. However, upon a review of the Department's records, no such written agreement or documentation was in the CCC audit file. In light of the Department's admission noted in paragraph 13 above, Ms. Sanchez devised a formula which was shared with CCC, but she apparently did not include this formula or her discussions with CCC in the audit file. After Ms. Bebbington completed the audit of Macfarlane and based on the results thereof, the Department notified Macfarlane that it intended to impose additional sales and use tax, interest, and penalties. After the audit report was issued Macfarlane objected to the findings and requested that the Department reconsider the assessment. On or about April 10, 2001, the Department issued a Notice of Reconsideration ("Notice") based on Macfarlane's protest of the Department's audit findings for the period of February 1, 1994 through June 30, 1998. The Notice showed that Macfarlane owed additional sales and use tax of $35,958.27, a penalty of $17,979.37, and interest through April 6, 2000, of $16,701.32, and additional interest through April 12, 2000, of $3,606.12. The notice also indicated that interest would continue to accrue at $9.72 per day from April 12, 2001. According to the Notice, Macfarlane made a payment of $6,407.65 to the Department on April 6, 2000, leaving an unpaid balance of $67,837.43. Macfarlane asserts that it should not have to pay sales and use tax on the full amount of the invoice because a portion of that amount is for services that are exempt from sales and use tax. Contrary to this assertion, the auditor found that the invoices and other documentary evidence provided to the Department did not provide substantial competent evidence that any portion of the invoice amounts were attributable to products, materials, or services that were exempt from tax. Accordingly, based on the information provided by Macfarlane, the Department properly concluded that the total amount of each invoice was subject to sales and use tax. Because there is no substantial competent written documentation evidencing what tax exempt services were performed by CCC for Macfarlane and what specified portion of the monthly costs invoiced to Macfarlane were for those "claimed" tax exempt services, Macfarlane is liable for the entire amount on the invoices for the audit period. There is nothing in the record to indicate that Macfarlane did not timely pay the total amount of the invoices, including the amount attributable by CCC to sales and use tax. But for CCC's changing the manner in which it calculated the sales and use tax for its customers in early 1994, Macfarlane would have continued paying the tax on all goods and services as it did prior to January 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered sustaining the assessment for sales and use tax against Petitioner, but compromising the entire interest and penalty amount. DONE AND ENTERED this 6th day of March, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2002. COPIES FURNISHED: James W. Goodwin, Esquire MacFarlane, Ferguson & McMullen, P.A. 400 North Tampa Street, Suite 2300 Tampa, Florida 33602 Bruce Hoffman, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 James Zingale, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Jarrell L. Murchison, Esquire Office of the Attorney General The Capitol, Tax Section Tallahassee, Florida 32399-1050 Eric J. Taylor, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 David Adams, Esquire Charles Moore, Esquire Macfarlane, Ferguson & McMullen, P.A. 400 North Tampa Street, Suite 2300 Tampa, Florida 33602
