The Issue The issue for determination is whether Respondent terminated Petitioner's employment on the basis of Petitioner's age and sex.
Findings Of Fact Petitioner is Lutye T. Willis. She is white and over 40 years of age. She was employed by Respondent from July 21, 1987, until December 30, 1988. Respondent in this matter is Crystal Brands, Inc., successor-in- interest to Hunter Haig, Inc., a subsidiary of Palm Beach Incorporated. Respondent operated a number of retail clothing outlets throughout the country at all times pertinent to these proceedings. Respondent opened a new Evan Picone Factory Outlet store in the vicinity of Lake City, Florida, in July of 1988. In conjunction with opening the new store, Herman Davis, Jack Williams and Steve Anderson, representatives of Respondent and acting as a group, conducted interviews of applicants for the position of store manager. Petitioner was hired as the manager of the new store, effective July 21, 1988. Petitioner had approximately four years of experience in retail sales, although she had little experience in management or supervision. She was hired in the store manager position at a salary rate of $8.71 per hour for a 40 hour week. Four days later, following conduct of other interviews with prospective applicants, a process in which Petitioner participated along with Davis, Williams and Anderson, an assistant manager for the new store was hired. Williams suggested that Petitioner might want to hire a male to assist in the sale of menswear. Petitioner was happy with the choice of Trevor Hickman for the position. She knew the 22 year old white male and, many years earlier, had been his cub scout teacher. Her testimony to the effect that she was forced to hire a male assistant manageris not credited. In the first few days following their hiring, Hickman and Petitioner were trained jointly by Jack Williams in the store's operations. Williams was not confident that Petitioner possessed adequate abilities and skills with regard to bookkeeping and cash register operation when he left the store three weeks later. He apprised home office personnel that Petitioner might require further assistance in these areas of the store's operation. Subsequent to Williams' departure from the store, Petitioner received additional training and assistance from Tabitha Smith, the female manager of another store owned by Respondent. Smith, manager of Respondent's store located in the neighboring vicinity of Valdosta, Georgia, was also consulted about once a week by Trevor Hickman, regarding reports and other store operations, during the period of Petitioner's employment. While good with customers, Petitioner was not so adept at the administrative tasks of management. She generally delegated the preparation of reports to Hickman, although the reports were the responsibility of the manager and were normally signed by her. However, monthly balance reports, required to be completed by the manager, were not assigned to, or prepared by, Hickman. Those reports were delinquent at the time of Petitioner's termination and were subsequently completed by Hickman. In October of 1988, Dan Hardin became the regional manager for Respondent. His regional supervisory role made him the immediate supervisor of Petitioner. He conducted a review ofthe store managed by Petitioner on October 31 and November 1, 1988. Hardin was disappointed with Petitioner's performance with regard to preparation of monthly balance reports and maintenance of the store's bank deposit log. Petitioner received a "poor" rating from Hardin with regard to these tasks in the review. Hardin explained to Petitioner the importance of telephoning the home office on a daily basis with information concerning the amount of funds deposited by her in the bank each day. In her role as the store manager, Petitioner established the work schedules for herself and Hickman. Sometime in late 1988, she arranged the schedules so that Hickman worked five days in a row from December 22 through December 28, in order that Petitioner might travel to Boston, Massachusetts to spend the Christmas holidays. Hickman was scheduled by Petitioner to be off several days around New Years' weekend and the week before Christmas. Petitioner asked Hickman to cover for her in the event that anyone from the corporate offices inquired about her during her absence. Under the arrangement, Hickman was to telephone Petitioner in Boston, Massachusetts, regarding inquiries from the corporate office. However, Hickman was not to tell superiors that Petitioner was in Boston. Hickman was discomfited by Petitioner's arrangements. He knew that Petitioner's plans were contrary tocompany policy and he feared he might be fired if he were viewed as collaborating with Petitioner's scheme. Under Respondent's vacation policy, no employees were permitted a vacation until they completed at least six months of employment. In addition, company policy required approval of managerial vacation by the employee's immediate supervisor and the corporate president, John Lane. Petitioner had not complied with either provision of this policy regarding her planned absence. Hardin normally communicated by telephone on a weekly basis with the store managed by Petitioner. Hardin spoke with Hickman by telephone in the early part of December and learned of the arrangement between Hickman and Petitioner to take time off during the holiday period. Hardin subsequently telephoned the store again and spoke with Petitioner. He asked Petitioner to perform certain tasks during the time period that he now knew she planned to be absent from the store. At that point in the conversation, Petitioner informed Hardin of her intention to go to Boston during the December 22-28 time period. Hardin attempted to dissuade Petitioner from carrying out her plans, pointing out the company vacation policy to Petitioner and the need for John Lane's approval of Petitioner's proposed absence. Hardin further told Petitioner that he could not personally approve Petitioner's request as her supervisor, that he did not believe John Lane would approve such an absence, that shecould not be away from the store that long, and that the period for the proposed absence was one of the busiest times of the year for retail merchandising. Petitioner told Hardin that she still intended to follow through with her holiday travel plans. Following the telephone conversation with Petitioner, Hardin informed Jim Shanis, Respondent's director of stores, of Petitioner's action. Subsequently, after telephoning the store during the period of December 22-28, 1988, and verifying that Petitioner was absent from the store, Hardin decided to terminate Petitioner's employment. Hardin's discharge of Petitioner took place on Friday, December 30, 1988. At that time, he informed Petitioner that her discharge was the result of the unauthorized vacation and her unsatisfactory performance. Hardin's discharge of Petitioner was consistent with Respondent's disciplinary policy which provided for immediate discharge for deliberate disregard of company policy or insubordination. Respondent does not have a work practice prohibiting employment of females in managerial positions. Further, the proof establishes that Respondent had all female management teams at ten of it's 39 stores during the period of Petitioner's employment, as well as individuals in some managerial positions who were over 40 years of age. After terminating Petitioner's employment, Hardin called Hickman to the store and promoted him to the store managerposition with a salary rate of $8.17 per hour, an amount less than that paid to Petitioner. On or about January 20, 1989, Petitioner wrote a letter to the company president, John Lane, complaining that she had not received severance pay. Petitioner did not include within her complaint any allegation that her termination resulted from discrimination on the basis of age or sex.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 21st day of November, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1990 APPENDIX The following constitutes my rulings with regard to proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-3. Rejected, conclusions of law unsupported by weight of the evidence. Adopted by reference. Rejected, not supported by weight of the evidence. First part of this proposed finding is rejected as unnecessary with regard to Petitioner's background. Remainder rejected as unsupported by the weight of the evidence. Rejected, unsupported by the evidence. Rejected, unnecessary. 9.-15. Rejected, not supported by weight of the evidence. Rejected, relevancy. Rejected, not supported by weight of the evidence. Rejected, although a male assistant was suggested to Petitioner because of fitting of male apparel, the weight of the evidence does not support that Petitioner was forced to hire Hickman or that she opposed his hiring. Rejected, hearsay. While Petitioner was granted leave to file the deposition of Herman Davis as a posthearing exhibit, no authority was provided to quote documents not in evidence as a basis for a finding of fact. 20.-21. Rejected, not supported by the evidence. 22. Adopted by reference. 23.-25. Rejected, not supported by weight of the evidence. 26. Rejected as argumentative. Although Hardin remained in the hearing room as Respondent's agency representative, Petitioner was not unfairly prejudiced as a result. Respondent's Proposed Findings 1.-5. Adopted in substance. 6.-10. Adopted by reference. 11.-21. Adopted in substance. 22.-24. Adopted by reference. 25.-41. Adopted in substance. 42. Adopted by reference. 43.-44. Adopted in substance. 45.-49. Rejected, unnecessary to result. COPIES FURNISHED: Dana Baird, Esq. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Lutye Willis P.O. Box 646 Brownsville, Vermont 05037 Edwin J. Turanchik, Esq. 501 East Kennedy Boulevard Suite 1206 Tampa, Florida 33602 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue The issue for consideration in this case is whether Petitioner, E. L. Cole Photography, Inc., was properly denied award of Bid Number 97-DC-7059, to provide photographic film to the Department.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Department of Corrections, was an agency of the State of Florida, with authority to procure goods, supplies, and services from vendors through the process of competitive bidding. Sometime prior to February 14, 1997, the Department sent out Invitations to Bid soliciting bids for the providing of photographic film. Both Kodak 135 mm color-and black-and-white film and five different types of Polaroid instant camera film were needed for use by the agency, state-wide. Bids were to be submitted in time for the scheduled bid opening on February 25, 1997. This was a procurement reserved for minority bidders. The bids were opened, as scheduled, on February 25, 1997. Petitioner was one of seven bidders. The low bidder, Laube Photo, was disqualified because it was not a certified minority business. Of the remaining six bidders, Ace Office Supply submitted a bid of $3,151.00 on Item 1, the Kodak film; and a bid of $175,250 on Item 2, the Polaroid film. Ace’s total bid was $178,601.00. Petitioner’s bid was $3,793.20 on the Kodak film; and $181,425.00 on the Polaroid film, for a total of $185,218.20. All the bids from the other bidders were higher than that of Petitioner. Based on the figures submitted, Ace Office Supply was the low responsive bidder. It’s certification as a minority bidder was confirmed by the agency’s minority office. In its protest submitted on March 6, 1997, Petitioner addressed the warranty which pertains to the film to be supplied. Petitioner questioned whether that warranty would cover film proposed to be furnished by Ace, which Petitioner contends would be gray market product. Special Condition 16 of the Invitation to Bid provides in pertinent part: A warranty is required on all items purchased against defective materials, workmanship and failure to perform in accordance with required industry performance criteria, for a period of not less than ninety (90) days from date of acceptance by the purchaser. Any deviation from this criteria must be documented in the vendor's bid response or the above statement shall prevail. Neither Ace nor the Petitioner indicated any deviation from the warranty requirements. Therefore, the warranty stated applies to product supplied by either bidder. Petitioner also challenged the difference between the bids as relates to the description of the commodity to be provided. Though not required to do so by the Invitation to Bid, Petitioner listed the catalogue number of each item and enclosed with the bid pertinent pages from the manufacturers' catalogues reflecting the commodity and the catalogue number. Ace listed only the commodity and the product number as opposed to the catalogue number. Both methods are acceptable, however. The use of the product description by Ace was no more than a minor irregularity which did not affect the price, nor did its use give Ace an unfair advantage. By the same token, Petitioner's use of the incorrect catalogue number in one instance was also an irregularity, but it, too, was considered minor. From both submittals, it was clear that the product offered was the product sought, and the price for each item was clearly stated. The specifications contained in the bid solicitation in issue were not prioritized in importance. Price, quality, and warranty were all important. The warranty requirement was inserted to ensure against the provision of substandard product. Both Ace and Petitioner provided the requisite warranty, and Ms. Holcomb presumed both bidders would have honored it. The only area of difference between the bids was in price. Both Petitioner and Ace have provided products to the Department in the past. There have been no complaints regarding either the product provided or the service provided by either supplier. "Gray market” products are those made outside the United States by or under license of a manufacturer, which bear the brand name of the manufacturer, but which are not intended for sale in this country through the manufacturer's authorized distributors. They may or may not carry a full manufacturer's warranty. There is no reference to gray market goods in the Invitation to Bid, and Ms. Holcomb did not consider the possibility of gray market goods being furnished until Petitioner raised the issue in its letter of March 6, 1997. When Ms. Holcomb received this letter, she checked with the minority certification office which indicated it would not certify anyone who supplied gray market goods. Thereafter, Ms. Holcomb referred the matter to the Department's legal staff, and she is not aware of what that office did regarding the gray market issue. The evidence regarding the position of the minority certification office regarding gray market goods is hearsay evidence and may not be dispositive of that issue. Mr. Cole, Petitioner's owner and a long-time photographer, raised the issue of gray market product because it has been his experience that when vendors bid inside of their commodities specialty field, a gray market product can be sold at a lower price resulting in a competitive disadvantage to other responsive bidders. Though cheaper in price, a gray market product may not carry the same manufacturer's warranty as does product sold on the authorized market. In addition, many gray market products do not meet the same quality standards of manufacture as authorized products. Mr. Cole claims Ace would provide a gray market product based on the fact that the prices quoted by Ace are below the prices quoted by Petitioner. Cole submitted the manufacturers' price lists with his bid in the hope that all vendors would be bidding on the same product. Referencing the prices submitted by Ace in its bid, Mr. Cole concludes that the film to be supplied by Ace is not an authorized product. His experience indicates that gray market dealers' prices are similar to those quoted by Ace. Mr. Cole admits there is nothing in Ace's bid to indicate it would not honor the ninety-day warranty called for in the Invitation for Bid. He also admits that gray market products could meet the warranty requirement, and there is nothing in the IFB which prohibits gray market film, notwithstanding the other evidence of record that the minority certification office would not certify providers who offered gray market goods. It also must be noted that on at least two items called for in the IFB, Petitioner underbid Ace. This happened because Petitioner elected to take a loss on those items, but, Cole contends, Ace's use of gray market prices allowed it to underbid him overall. There is no independent evidence that the product to be submitted by Ace would be gray market product. In any case, the evidence shows that Petitioner substantially underbid four other responsive bidders in this procurement. Mr. Cole does not see that as a problem, since the price differential between Petitioner's bid and the next lowest bidder is not, in his opinion, disqualifying. This argument is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order in this case awarding procurement 97-DC-7059, to provide photographic film to the Department, to Ace Office Supply. DONE AND ENTERED this 29th day of August, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1977. COPIES FURNISHED: Matthew M. Carter, II, Esquire 610 North Duval Street Tallahassee, Florida 32301 Scott E. Clodfelter, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Louis A. Vargas General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500
Findings Of Fact In early 1984, the Florida Department of Law Enforcement in its Fingerprint Identification Section decided to replace some equipment used for purposes of analyzing finger prints. That equipment was three Kodak PR-1's, known as readers. The reason for the replacement concerned the fact that these machines had been in operation since 1969 and Kodak was no longer willing to undertake the service of the machines through a service agreement. Initially, the staff favored the idea of replacing the Kodak equipment with other Kodak equipment, having in mind the idea that Kodak was the only manufacturer that could meet the needs of this function within the Florida Department of Law Enforcement. If this suggestion had been accepted, then it would have been on the basis of a request to the Department of General Services to be given permission to enter into a contract with a sole source, namely Eastman Kodak. Indeed, preliminary steps were taken to purchase the Kodak IMT-50 reader-printer to substitute for the three PR-1's, as a noncompetitive purchase from the single source, Kodak. There had also been some discussion about the purchase of Kodak IMT-100's, a reader-printer which allowed multilevel blipping. That type of feature, i.e., multilevel blipping, was determined not to be necessary. Ultimately, the Florida Department of Law Enforcement determined to meet their needs for replacement of the PR-1 machines through a' competitive bidding, Bid No. 83-50. A copy of the invitation to bid may be found as Petitioner's Exhibit 14. This particular item is a response on the part of Lanier Business Products to the invitation to bid. Among the instructions in the invitation to bid was general condition Number 7 which reminded the prospective vendors to direct questions concerning the conditions and specifications set forth in the bid invitation to the Florida Department of Law Enforcement no later than ten days prior to the bid opening. Bid opening was scheduled for May 31, 1984. None of the vendors who offered bid responses questioned the meaning of any of the general conditions or specifications set forth in the invitation to bid related to the purchase of microfilm reader-printers as contemplated in the bid invitation. Eastman Kodak Company also submitted a bid. The bid response by Lanier Business Products was for the provision of a reader-printer known as the 900 Page Search manufactured by 3M. The Kodak product which was bid was the IMT-50 reader-printer. Another prospective bidder, Office Systems Consultants, submitted a "no bid," signifying the inability to meet the specifications of the invitation to bid. On May 31, 1984, the bid opening was held and a tabulation was made as to the bid responses offered by Lanier and Kodak. The unit price for each of the three microfilm reader-printers was $8,650 by Lanier and $9,040 by Kodak. Therefore, Lanier was the apparent low bidder on the project. Within the bid specifications are requirements which set forth specific needs for this project. One of those items pertains to film retrieval capability, and that provision states: Unit will retrieve, by automated means, 100 feet 16mm rolls of 5.4 mil film or 215 feet 16mm rolls of 2.5 mil film (such as Recordak AHU microfilm). Retrieval unit must be able to read, randomly, and ANSI standard document reference (Blip), and must have an advance-- return transport speed of 12 feet per second minimum. Related to lens requirements, the bid specifications indicated: Lens magnification must be 24:1 to be compat- operation. ible with present standards and be designed so that additional lens can be interchanged without interrupting the reader-printer Under the heading of general requirements the invitation to bid stated: By nature of the work requirements and pro- duction schedule, the equipment may be gener- ally described as a 16mm reader-printer capable of retrieving microfilm images by means of ANSI Standard Blips, and will be compatible with existing system. Prior to bid consideration, potential bidders will review, on site, typical production required as part of the overall routine of the finger- print section. Appointment for this inspec- tion will be made by calling (904) 488-9953. The Department will not alter the current production system. After bid opening and prior to award, vendors will conduct tests and provide demonstrations to personnel of the Department to assure a quality product compatible with the existing system. Where applicable, the film retrieval unit will conform to Florida Administrative Code, Chapter 1A-26. At the time the decision was made to replace the three PR-1 microfilm readers, the Identification Section within the Florida Department of Law Enforcement had four other machines which had reading capability. Those machines were also Kodak and are referred to as Starvue. As can be seen, neither the PR-1 nor the Starvue referred to had the capability to print. A review of Petitioner's Exhibit 3 reveals that the ability to print identification cards was accomplished through another Starvue type machine in operation prior to the bid invitation. When processing fingerprint cards within the Identification Section of the Respondent agency, the task of fingerprint identification and verification is addressed. Over and above this reading function, prints are sometimes made of fingerprint identification cards or documents related to a given subject. These prints either are made from the positive film being reviewed, the copy appearing as a negative image of that film, or in the alternative, the positive film is replaced with negative film and a positive print is made through the copying process. Copies were reproduced on the separate printer which the agency had available to it, prior to bidding for the purchase of three reader-printers contemplated by the invitation to bid under discussion. This required removing the film from the reader or substituting the film before printing. In addition, some lens changes within the readers would be necessary, on average a couple of times a day. The PR-1 machine had a telescoping lens which would allow magnification without lens replacement. The Starvue reader requires the replacement of the lens to gain greater magnification. This Kodak machine, following the lens substitution, would not lose contact with the image which had been on the screen prior to the substitution. The fingerprint analysis operators or technicians, at the time that the bid was prepared, used a 30:1 lens in performing their function of reading the fingerprint microfilm image. A 24:1 lens was needed for printing. Under these circumstances the Respondent indicates that in the bid specifications reference should have been made to a 30:1 lens as opposed to a 24:1 lens in describing lens requirements. The PR-1 machines that were being replaced did not have the capability to read blips on the given frames or images within the microfilm cartridges, thus automatic access of the roughly ten per cent of microfilm cartridges that contained the blips was not possible. Both the 3M 900 Series and the IMT-50 microfilm reader-printers allow for automatic retrieval of the image within the microfilm cartridge, as stated before, a required feature set forth in the invitation to bid. The operation of the Fingerprint Identification Section at the time of the bid invitation dealt with approximately forty-eight hundred reels of microfilm, 90 per cent of which could only be accessed manually. Most of the microfilm cartridges contained one hundred feet of microfilm. When reference is made in the bid document to the fact that the proposed equipment should allow for the changing of lenses without interrupting the operation of the reader-printer, this is a literal impossibility. While the first lens is being removed and the second lens is being placed, no reading or printing may occur. As a consequence, when officials with Lanier read this requirement, they perceived it as being some form of inconsequential mistake and did not seek clarification as contemplated by clause Number 7 of the general conditions to the invitation to bid. While it is not apparent from the reading of this requirement, the Florida Department of Law Enforcement intended this provision pertaining to lenses to mean that once the second lens had been placed in the machine, the image that had been being examined prior to the lens replacement would be immediately available for reading or printing. The IMT-50 Kodak equipment allows for that, the Starvue equipment by Kodak allows for that, and the PR-1 did not require lens replacement. By contrast, either in the manual mode or in the automated mode, the 3M 900 Series equipment might require a slight adjustment to recapture the image once the lens had been changed. This adjustment would take approximately two seconds to achieve. The reason for the differences between the 3M equipment and Kodak equipment concerns the fact that the power source in the 3M equipment is turned off when the lens is out of the machinery and the power source within the Kodak equipment remains constant even when the lens is removed. When the lens requirement is considered in the context of the idea expressed in the general requirements, that the Department did not intend by the replacement of its equipment to alter its current production system, use of the 3M equipment at times of lens interchange is not found to be out of compliance with that general requirement or condition. That determination is made realizing that the lens requirement was ambiguous, at best, and the more important fact that the amount of delay caused in using the 3M equipment in a lens change posture amounts to three operators x two occasions per day x two seconds per occasion or 12 seconds per day. This delay is inconsequential. On this topic, in its position in justifying its choice to reject Lanier's equipment as not complying with the lens requirement, suggestion has been made by the Florida Department of Law Enforcement that eight to ten lens changes per hour might be necessary in the "hard" identification of prints. This comment as offered as a justification for rejecting the Lanier bid as nonresponsive to the lens requirement is not borne out in the record of the hearing by competent proof. This information was imparted in Petitioner's Exhibit 45 which is information that the Florida Department of Law Enforcement submitted to the Department of General Services, having determined that the Lanier bid was not responsive because of a failure to comply with the lens requirement and the requirement for film retrieval capability, which will be discussed subsequently. That information in the exhibit was hearsay and was contradicted by the comments by two of the operators who utilized the reader-printers in the Fingerprint Identification Section. They are the source of the idea that lens changes occur once or twice a day, and their position has been accepted as factually correct. In summary, Lanier is found to have complied with the specific requirements for lens compatibility with existing needs of the Fingerprint Identification Section and future needs of that section. An official within the Florida Department of Law Enforcement had been informed by Kodak that the Starvue equipment in use by the Fingerprint Identification Section at the time that the bid invitation was prepared had a capability of performing the retrieval function at a pace of twelve feet per second. This pertained to both the forward and the return phase of that operation. Having this in mind, the previously described requirement for film retrieval capability was included within the bid specifications. Again, it was the intention of the Department, as expressed in that provision and the general requirements, that the replacement equipment maintain the same efficiency of production as existed. The manufacturers of the equipment which was offered in response to the bid have described their equipment in this fashion: The Kodak IMT-50 is described as having a speed advance of up to fourteen feet per second. The 3M 900 Series which was offered by Lanier carried a "rating" of twelve feet per second. The author of the bid specifications pertaining to film retrieval speed included within that section the phrase ". . . advance--return transport speed " This phrase is not used in the microfilm industry to describe film retrieval capability. Officials at Lanier perceived this as a manufacturer's speed "rating." Officials with Kodak who offered testimony at the hearing had various ideas about what advance and return transport speed meant, which opinions were not constant. Likewise, the author of this provision within the bid specifications offered variety in his explanation of the meaning of that phrase, that variety ranging from the idea of maximum speed when the machine was operating at full capacity in terms of the advancement or return of the microfilm within the machine, to the idea of maximum speed as ascertained shortly after the machine had started to advance or return the microfilm. In any event, he states that it did not mean transport speed as an average of time for a given length of film to move through the machine. Nothing about the specifications suggests that return transport speed equates to the idea of average speed, meaning the amount of time necessary to transport a given length of film through the machine either in the forward or reverse mode. When this requirement of transport speed is seen as a function of protecting against the acquisition of equipment that would not be as efficient as existing equipment, a further dilemma is presented. Edward E. Ricord, author of the specification related to film retrieval speed testified that testing had been done, unrelated to the present hearing, with the intention of describing the transport capabilities of preexisting equipment within the Florida Department of Law Enforcement. The recount of that testing was not offered as evidence by way of documentation. Nonetheless, the equipment that was existing is depicted as having the capability of transporting a ninety-six foot length of microfilm through the older machine, Starvue, in a shorter length of time than could be achieved by the 3M 900 Series. The Starvue was four seconds faster in the forward mode and ten seconds faster in the reverse or rewind phase than the 3M 900 Series, according to Ricord. The old machine was also described as being slower at one end and a little bit faster at the other end in transporting the ninety-six foot length of microfilm when contrasted with the IMT-50 Kodak. (The transport of ninety-six feet of film becomes significant in a later paragraph describing the basis for rejecting the Lanier bid offering as being unresponsive.) On the other hand, Carl Durian, one of the operators or technicians who has used the PR-1, the Starvue, the 3M 900 Series and the IMT-50 machines had these observations, in terms of a subjective analysis of speed. He felt that the Kodak IMT-50 was a subjectively faster operating machine when performing the retrieval function related to the movement of the microfilm through the machine when compared to the 3M 900 Series; however, the 3M 900 Series was found to be subjectively faster than either the Starvue or the PR-1. Finally, Durian felt that the Starvue was faster than the PR-1 when considering the retrieval capabilities of the various machines. Again, this firsthand information, though subjective, is of a better quality than the information offered by Ricord who recounted test results not produced at hearing. Looking at this problem in the most favorable light, there is conflict within the agency as to the issue of whether the 3M 900 Series equipment is as capable in the retrieval of microfilm, as a function of speed, as existing equipment within the Fingerprint Identification Section at the time that the bid invitation went out. This is significant, because, having no industry standards related to return transport speed and having no clear indication of what that term meant at the point of the preparation of the bid specification which is separate and apart from the capabilities of existing machines, it is taken to mean the capabilities of those existing machines, and the uncertainty about those capabilities must be resolved in favor of Lanier. Moreover, on this occasion the Florida Department of Law Enforcement cannot point to Lanier's obligation to ask the question about the meaning of return transport speed as a reason to reject the bid response, in that such a theoretical inquiry would not have elicited a satisfactory answer to the question and alerted Lanier that it was potentially incapable of satisfying the bid specifications related to microfilm retrieval. In accordance with the bid document, the vendors Lanier and Kodak were required to present one of their machines to the Department following the bid opening for purposes of evaluation. Once the machines were in place, some concerns were expressed about the difference in operating capabilities in the retrieval function of the two machines. To gain some understanding of those differences, a test was devised to measure the responsiveness of the two machines. The test, by its terms, measured the average time necessary to move ninety-six feet of microfilm through the machines in a forward and reverse mode. The tests were conducted, forward and reverse on each machine, by using a person holding a wrist watch and gaining an average of the time necessary to accomplish the functions, after an operator switched the machine into the fast forward and reverse positions to commence the test. The tests forward and reverse were executed three times. It was revealed that in the forward mode, the best performance by the 3M 900 Series was a speed of 5.99 feet per second and in the reserve mode 8.30 feet per second. By contrast, the speed of the Kodak IMT-50 was, at best, 12.80 feet per second in the forward mode and 16.16 feet per second in the reverse mode. No comparison was made at the time of that testing between the two proposed machines and the existing Starvue or PR-1 equipment. For that reason it is not graphically depicted whether the 3M 900 Series machine would slow down the operation of the Fingerprint Identification Section because of its inability to comply with the requirement for film retrieval. A description of the testing that was done between the 3M 900 Series and the IMT-50 cannot be found as a requirement within the bid specifications, nor does it comport with any expressed statement of what transport speed meant as described in the bid specification document. While it does point out a remarkable difference between the film retrieval capabilities of the Kodak IMT-50 and the 3M 900 Series, it does not establish that Lanier failed to comply with the bid specification related to film retrieval when offering the 3M 900 Series machine in response to the bid invitation. Lanier has met the requirement for film retrieval. In support of this finding, the scope of this inquiry as stipulated to between the parties does not allow for the discussion of the implications of the greater film retrieval capability of the Kodak IMT-50 when compared to the 3M 900 Series as it might pertain to work efficiency within the Fingerprint Identification Section. More significantly, even should it be demonstrated that this difference in film retrieval speed has a profound influence on work efficiency, it could not be said that the Lanier bid failed to meet specifications. The only consequence of this revelation might be that the agency would rebid the project, when examined in the abstract. Given what the agency considered to be a lack of responsiveness on the part of Lanier related to the lens requirement and film retrieval requirement, it was determined to seek permission from the State of Florida, Department of General Services to obtain the IMT-50 equipment from Kodak as a sole source. This is under the theory that in a competitive bid setting where only one responsive bidder has responded, a sole source purchase opportunity must be sought from the Department of General Services. Following some explanation, that authority was granted. When the authority was granted, the Department of General Services did not realize that Lanier had not been given a point of entry to question the rejection of its bid. When this circumstance was discovered, the Department of General Services recanted its stated permission pending the opportunity for Lanier to have due process concerning its claim of compliance with bid specifications. The decision by Department of General Services to change its position on permission for sole sourcing occurred on October 2, 1984. In the face of that statement and the advice by the Department of General Services that the Florida Department of Law Enforcement should give a point of entry to Lanier to contest the question of a determination that Lanier's bid was unresponsive, the Florida Department of Law Enforcement on December 17, 1984, officially noticed Lanier of the choice to award the contract to Eastman Kodak. Given this notification, a letter of protest was filed by counsel for Lanier on December 21, 1984. Kodak had been awarded the contract through the issuance of a purchase order from the Florida Department of Law Enforcement at a time when the Department of General Services had initially indicated the acceptability of a sole source arrangement, but before the October 2, 1984, decision by Department of General Services to rescind its permission to go sole source. As a part of the arrangement with Eastman Kodak, $262 per machine was allowed in the way of trade-in of the three PR-1 machines which were being replaced. The IMT-50 equipment is presently in place in the Fingerprint Identification Section of the Florida Department of Law Enforcement. Had Lanier placed the 3M 900 Series machines with the Florida Department of Law Enforcement, it would have made a profit of $5,700. This is offset by the cost of $4,080 which would have been necessary to convert the existing microfilm reels to fit the 3M equipment. With that deletion, the total profit from the sale becomes $1,620. The effective life of the 3M 900 Series of equipment is five years, and service revenues from those three reader-printers averages $2,940 per year x five years = $14,700 as total service revenues. The loss of revenues over the five-year span for the three reader-printers related to paper supplies is $24,300 based upon three reader-printers $4,860 per year. The figures given relate to gross charges for paper supplies. That paper has not been supplied, and no indication has been given on the difference between the vendor's cost for producing the paper and the retail price of the paper, giving a net figure as to profit. In view of the fact that the paper has not actually been delivered and in the absence of some indication as to the amount of net profit, this item of damages is not allowed. Finally, no indication was made as to the amount of labor cost and net profit related to the overall service charge, and, as with the paper supplies, this claim is disallowed. These items of damages are disallowed because the Petitioner would only be entitled to claim net profits, having never actually offered the services or supplies. An additional $810 is lost in interest income at a rate of ten per cent per year over the five-year effective life of the equipment, pertaining to use of the profits realized in selling the machines. The proven total damages to Lanier is $2,430. Claims by Lanier for loss of future earnings related to the sale of unrelated machines are not found to be convincing, in that they are too speculative in nature. The related claim for past damages if the 3M machines are installed is rejected in that the effective life of the machines starts from the time of their installation. Therefore, profits for sale, supplies and service would commence at that moment. Lanier is the lowest responsive bidder on Bid No. 83-50.
Findings Of Fact The adult education department of the Lee County School Board received an appropriation to purchase night vision surveillance equipment in connection with their adult education program. Information was requested from various manufacturers of this type equipment and bids were solicited in December, 1978. Only two bidders submitted bids. Standard Equipment Company's bid for their Ni-Tec equipment was $4,790 and Petitioner's bid for their Astrolite viewer was $3,775. Although there had been sufficient funds appropriated to purchase the Astrolite viewer, the price for Ni-Tec exceeded the sum appropriated so both bids were rejected. The specifications were modified to be more specific and new bids solicited from five suppliers. Only three of these companies responded. Petitioner's bid at $3,775 with two years warranty on parts and labor was low bid; Standard Equipment Company offered the Ni-Tec for $4,100 with one year warranty on parts and labor; Javelin Electronics submitted a bid for $6,324; and the two other suppliers solicited did not bid. Still not satisfied with accepting the low bid Respondent's Trade Extension Coordinator, C. W. Cawlfield, set up a test of the two units for which bids had been received. This test was conducted on the evening of March 1, 1979 by the Punta Gorda Chief of Police, the Fort Myers Airport Chief of Police, a fireman and one or two others. Some of those conducting the test had previously purchased the Ni-Tec equipment for their department's use and preferred this equipment. None of those conducting the test knew the difference between the monocular eye viewer which is standard equipment on the Astrolite and the biocular eye viewer which is standard equipment on Ni-Tec. Those conducting the test thought both eye viewers were the same although the eye piece on Ni-Tec was slightly larger. Following the test Chief Bennett of the Punta Gorda police force advised Cawlfield that the Ni-Tec equipment provided a clearer and larger image, that the equipment was more rugged, and that the Ni-Tec was the best equipment to buy for the school. Based upon what he was told by Bennett, Cawlfield, on Match 2, 1979 wrote a memorandum (Exhibit 4) to the Director of Purchasing in which he listed seven categories in which the Ni-Tec viewer was superior to the Astrolite viewer. Some of the seven items listed involved specification requirements and some involved non-specification Comparisons. With respect to those items which indicate the Astrolite did not meet specifications, all are wrong. As a matter of fact each and every numbered item in Exhibit 4 which indicates the Ni-Tec viewer to be superior to the Astrolite viewer was predicated on false and erroneous information, or was based on a characteristic not included in the specifications upon which the bids were submitted. An example of this latter comparison based upon a factor not included in the specifications was No. 7 which indicates Ni-Tec meets military specifications while the Astrolite does not. Military specifications was not a bid requirement. After acknowledging that each and every comparison listed on Exhibit 4 was erroneous or predicated upon erroneous information, both the author of Exhibit 4 and the recipient thereof, Wayne McSpadden testified they would still recommend the purchase of the more expensive Ni-Tec viewer because those conducting the test reported having observed a clearer and larger image through the Ni-Tec viewer. None of those conducting the test appears to have more than a very rudimentary knowledge of optics. None appeared to recognize that during the test the Ni-Tec viewer was equipped with a biocular eye piece while the Astrolite viewer was equipped with a monocular eye piece. The biocular eye viewer is large enough to view with both eyes and the viewer sees a larger image than is seen with the monocular eye viewer. Exhibit 2 states that the bid submitted on Astrolite included a biocular eye viewer. Exhibit 3 shows the biocular eye viewer as an accessory and Cawlfield testified he had not seen Exhibit 2, which was addressed to McSpadden, and thought the biocular viewer would cost extra. The Ni-Tec viewer comes with a f/2.8 lens while the Astrolite lens is f/l.3. In any optical equipment a f/l.3 lens is approximately twice the diameter of an f/2.8 lens and will therefore admit approximately four times as much light because it has approximately four times the area. Accordingly, from a lens comparison alone the Astrolite viewer should be superior to the Ni-Tec viewer.
The Issue The issue for determination is whether Joseph J. Proctor committed violations of Chapter 489, F.S., relating to the practice of construction contracting, and if so, what disciplinary action should be taken.
Findings Of Fact Joseph J. Proctor has been a registered roofing contractor at all times material to this proceeding. His license number is RC 0026805. On or about June 13, 1985, Proctor contracted with Dawn Ladson to fix her roof and install two skylights at her home at 401 Basewood Avenue, Altamonte Springs, in Seminole County, Florida. A few days later, Proctor replaced the existing roof with shingles and installed the two skylights. Ms. Ladson paid him a total of $2,050.00 for the work. Her last payment, $500.00, was made on June 27, 1985. At that point, he was not finished, but asked for a payment and Ms. Ladson decided to pay the full amount. Installing the skylights required cutting holes in the roof. After placing the skylights Proctor did not come back to seal the interior; as soon as it rained, the roof leaked. After some cajoling by Ms. Ladson, Proctor came back and did some work on sealing the skylights. However, they still leaked. The skylights were still leaking approximately a year later when Ms. Ladson directed her complaints to the Department of Professional Regulation. At the instigation of Jerome Maynor, DPR Investigator, Ms. Ladson and Proctor executed an agreement dated September 11, 1986, specifying repairs to be done and monetary reimbursement to be made by Proctor. The agreement also specified that Proctor would obtain the necessary permits. Sometime later, Proctor returned to the Ladson home and replaced the skylights. After that they still leaked. Ms. Lads on asked Proctor to fix them again and he kept saying he would, but he never returned. Eventually the repairs were done by another company. Proctor never applied for a building permit, as required by Seminole County, for the work he did on Ms. Ladson's home. Proctor claims, unconvincingly, that he came back to fix the roof each time Ms. Ladson called. He admits that he did not pull the permits, but claims that the arrangement was that Ms. Ladson would handle the permits. He admits that he never saw a permit displayed on the site and it should have been.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final order be entered finding Joseph James Proctor guilty of violating subsections 489.129(1)(d) and (m), F.S., as charged and assessed an administrative fine of $750.00, as proposed by counsel for DPR. DONE and RECOMMENDED this 17th day of December, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph J. Proctor 514 Peachtree Lane Altamonte Springs, Florida 32701 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue to be determined is whether Respondent, Sport Clips, Inc., is Petitioner’s “employer” under the Florida Civil Rights Act of 1992, chapter 760, Florida Statutes (“FCRA”).
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: SCI is a Texas corporation, whose sole office is located at 110 Sport Clips Way, Georgetown, Texas, 78628. SCI’s Chief Executive Officer at the time of the alleged discriminatory events was Gordon B. Logan. SCI is the owner of the “Sport Clips” trademarks and business system. It licenses the Sport Clips trademarks and business system to independent business people. Each Sport Clips franchisee signs a franchise agreement under which SCI licenses its trademarks and the franchisee agrees to abide by certain operating rules that protect the Sport Clips trademarks and brand. In addition, each franchisee pays to SCI a royalty and advertising fee, as well as other fees. Sport Clips is a sports-themed hair-cutting salon which provides customers with haircuts, shampoo, and beard trims. There are approximately 1,800 Sport Clips franchise stores and an additional 75 Sport Clips stores owned and operated by SCI. SCI provides operating rules to its franchisees in a confidential operating manual.2 The operating manual does not cover employment policies, employee compensation, or employee benefits. These employment matters are determined by the individual franchisee. Instead, the operating manual focuses on business operations. According to Gordon Logan, CEO of SCI, the company trademark “[is] the essence of the business. You have to have a trademark and protect that trademark in order to have a viable system, one that franchisees can present in a consistent manner and the public knows what to expect when they come into a franchise business using that trademark.” The purpose of the procedures and specifications in the operating manual is to protect the Sport Clips trademark and brand. If SCI failed to enforce its trademark and brand standards, it could lose the right to use the trademark. Further, it ensures that the public’s expectations are met 2 Neither party introduced a copy of the confidential operating manual into evidence at the hearing and therefore it is not part of the record of this case. no matter which store they visit in the country, and protects the franchisees’ investments in the franchise. The procedures and specifications set forth in SCI’s franchise agreement and operating manual, including requiring franchisees to participate in specific training, use Sport Clips uniforms, and use a particular point of sales system, are typical of the franchise industry. JV-SC is a Florida Limited Liability Company managed by Drew C. Hopper. JV-SC’s sole corporate office is located at 708 Main Street, Houston, Texas. No SCI officer, employee, or representative holds any position with JV-SC, nor does any JV-SC officer, employee, or representative hold any position with SCI. Likewise, SCI has no ownership interest in any of Mr. Hopper’s Sport Clips stores or business entities, and Mr. Hopper and his business entities have no ownership interest in SCI. Over the last 21 years, Mr. Hopper has been involved in approximately 30 Sport Clips stores as a franchisee. Through JV-SC, Mr. Hopper operates eight Sport Clips franchise stores for profit in North Central Florida, including two locations in Gainesville. Mr. Hopper hired Ms. Kelley to manage the day-to-day operations of the Gainesville stores, and Ms. Kelley hired Ms. Turner, with Mr. Hopper’s approval, to manage and cut hair at one of JV-SC’s Gainesville stores. JV-SC has a franchise agreement with SCI with regard to the Gainesville location managed by Ms. Turner (“Franchise Agreement”). Under the Franchise Agreement, SCI granted JV-SC “a non-exclusive and personal license to operate one unit of the Franchised Business in strict conformity with the Franchisor’s standards and specifications” at 2231 Northwest 13th Street, Suite 20, Gainesville, Florida 32608 (“13th Street Location”). Ms. Kelley and Ms. Turner were responsible for recruiting and hiring hair stylists at the 13th Street Location. Ms. Turner was responsible for supervising the stylists at the 13th Street Location. Employees in JV-SC’s corporate office in Houston also handled human resources functions for JV-SC. Mr. Hopper ultimately decided what to pay stylists on behalf of JV-SC. JV-SC set employee expectations and Ms. Kelley and Ms. Turner were responsible for handling employee misconduct and firing decisions at the 13th Street Location. Ms. Kelley and Ms. Turner were also responsible for ensuring that the 13th Street Location was properly equipped with necessary tools and inventory. Mr. Boyd was a hair stylist at the 13th Street Location. He was hired by Ms. Turner on August 30, 2017, and his rate of pay was set by JV-SC at $10 per hour. When he was hired, he completed a new hire form which states in bold print at the top: “JV-SC Investments LLC DBA Sport Clips FL901.” Mr. Boyd’s employment was terminated less than three months after he was hired by Ms. Turner for a violation of JV-SC policy related to a customer complaint. SCI had no involvement in Mr. Boyd’s hiring or termination of employment. During his employment, Mr. Boyd’s work schedule was established by Ms. Turner and his benefits, including holidays, vacation pay, and health insurance, were determined by JV-SC. If Mr. Boyd was going to be late or absent from work, he needed to contact Ms. Turner. Ms. Turner supervised Mr. Boyd’s appearance and conduct while on duty at the 13th Street Location and she conducted his performance reviews. SCI has never exercised control over Mr. Boyd, including his working hours, pay, and vacation benefits. Mr. Boyd’s personnel records were created and maintained by JV-SC and the records repeatedly identify JV-SC as Mr. Boyd’s employer. Mr. Boyd’s paychecks and W-2 were issued by JV-SC and make no reference to SCI. Likewise, Ms. Turner and Ms. Kelley were hired and paid by JV-SC and JV-SC created and maintained their personnel records. SCI has no employment records indicating that Mr. Boyd, Ms. Turner, or Ms. Kelley were ever employed by SCI. JV-SC had an employee handbook based on a template it received from SCI. The handbook was modified by JV-SC and could be modified by JV-SC at any time. Indeed, SCI expressly advised JV-SC to modify the form handbook to ensure it complied with local laws and to reflect the business practices of JV-SC. The employee handbook identifies JV-SC in bold red print on the front cover and provides “Sport Clips stores are independently owned and operated franchises. Team Members working in franchised stores are employed by the franchisee (Team Leader) and are not employed by Sport Clips, Inc.” JV-SC’s employee handbook was provided to its employees, including Mr. Boyd. JV-SC’s employee handbook required Mr. Boyd to report complaints of discrimination to his manager, Ms. Turner, or if he had a complaint concerning her, to Mr. Hopper at JV-SC. Under section XVI of the Franchise Agreement, JV-SC “acknowledges and agrees that [JV-SC] is an independent business person and independent contractor.” Further, this section provides in relevant part: Nothing in the Agreement is intended to make either party an agent, legal representative, subsidiary, joint venturer, partner, employee or servant of the other for any purpose whatsoever. During the term of this Agreement, [JV-SC] shall hold itself out to the public as an independent contractor operating the Franchised Business pursuant to a license from [SCI] and as an authorized user of the System and the Proprietary marks which are owned by [SCI]. [JV-SC] agrees to take such affirmative action as may be necessary to do so, including exhibiting to customers a sign provided by [SCI] in a conspicuous place on the premises of the Franchised Business. In compliance with this section of the Franchise Agreement, JV-SC posted at its 13th Street Location a sign in the front of the store which states: “This Sport Clips store is owned and operated by JV-SC Investments, LLC an independent Sport Clips franchisee.” With regard to JV-SC’s employees, the Franchise Agreement provides that “[SCI] shall not have the power to hire, manage, compensate or fire [JV-SC’s] employees and it is expressly agreed that [SCI] has no employment relationship with [JV-SC’s] employees.” The Franchise Agreement further provides: Franchisees are responsible for hiring, managing and compensating their employees within the laws of any jurisdiction in which they operate and are encouraged to consult their own legal counsel to ensure their compliance with all applicable laws. Franchisee and Franchisor recognize that Franchisor neither dictates nor controls labor and employment matters for the Franchisee or the Franchisee’s employees. Over the last 21 years, SCI has never told Mr. Hopper “who to hire, how to hire, how much [he] should hire them for, how much [he] should pay [employees]. It’s always been up to [him].” With regard to JV-SC’s funds and store premises, the Franchise Agreement provides “[e]xcept as herein expressly provided, [SCI] may not control or have access to [JV-SC’s] funds or the premises of the Franchised Business, or in any other way exercise dominion or control over the Franchised Business.” SCI has no control or ownership interest over JV-SC’s bank accounts, set up by Mr. Hopper; SCI is only authorized to withdraw from the accounts the specific royalties and fees set forth in the Franchise Agreement. Proceeds from the sales at the 13th Street Location are deposited into JV-SC’s bank account. SCI does not lease or own the property at the 13th Street Location or any of the 23 locations Mr. Hopper franchises from SCI. JV-SC leases the property from a third party. SCI does not own any real estate in common with or lease any property to Mr. Hopper or his related business entities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order finding that Petitioner failed to prove that Sport Clips, Inc. is an “employer” pursuant to section 760.02(7), Florida Statute, and dismissing the Petitions for Relief filed in these consolidated cases. DONE AND ENTERED this 12th day of August, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 12th day of August, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Robert W. Bauer, Esquire Bauer Law Group, P.A. Suite B 3721 Northwest 40th Terrace Gainesville, Florida 32606 (eServed) Deborah L. Taylor, Esquire SportsClips, Inc. Suite 1200 3730 Kirby Drive Houston, Texas 77098 Stephanie M. Marchman, Esquire GrayRobinson, P.A. Suite 106 720 Southwest 2nd Avenue Gainesville, Florida 32601-6250 (eServed) Maria Perez Youngblood, Esquire Law Office of Robert W. Bauer, P.A. Suite B 3721 Northwest 40th Terrace Gainesville, Florida 32606 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by the Honorable Robert S. Cohen, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Motion to Dismiss and Relinquish Jurisdiction, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Sky Powersports North Orlando, LLC to sell Slingshot Motorcycles manufactured by Polaris Industries, Inc. (SLNG) at 855 North US Highway 17-92, Longwood (Seminole Count), Florida 32750. Filed February 13, 2015 4:10 PM Division of Administrative Hearings DONE AND ORDERED this (3 County, Florida. Filed in the official records of the Division of Motorist Services this 13 _ day of February, 2015. Moke: Ur Nalini Vinayak, Dealer License Administrator Copies furnished to: Nalini Vinayak Dealer License Section Nicholas A. Bader, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 Michael W. Malone Polaris Sales and Service, Inc. 2100 Highway 55 Medina, Minnesota 55340 Robert S. Cohen Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 day of February, 2015, in Tallahassee, Leon Cobuv Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 e Charles R. Northey Sky Powersports North Orlando, LLC 246 McLean Point Winter Haven, Florida 33884 Nathan D. Stickney Sky Powersports North Orlando, LLC 709 Elkhorn Fern Lane Deland, Florida 32720 Jonathan Breenen Butler, Esquire Akerman, LLP 777 South Flagler Drive Suite 1100, West Tower West Palm Beach, Florida 33401 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. STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CYCLE SPORT CENTER, INC., d/b/a CYCLE SPORTS CENTER, Petitioner, vs. Case No. 14-6038 POLARIS SALES AND SERVICE, INC., AND SKY POWERSPORTS NORTH ORLANDO, LLC, Respondents. ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on Respondent’s Motion to Dismiss and to Relinquish Jurisdiction, filed on January 23, 2015, and Petitioner’s Notice of No Objection to Respondent’s Motion to Dismiss, filed on February 5, 2015, and the undersigned being fully advised in the premises, it is, therefore, ORDERED that: 1. Respondent’s Motion to Dismiss and to Relinquish Jurisdiction is granted. 2. The final hearing scheduled for September 8 through 11, 2015, is canceled. 3. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles. DONE AND ORDERED this 6th day of February, 2015, in Tallahassee, Leon County, Florida. ROBERT S. COHEN 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 6th day of February, 2015. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, MS 61 Tallahassee, Florida 32399 (eServed) William Edward Van Cott Government Operations Consultant Office of the General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway, Room A-430 Tallahassee, Florida 32399 (eServed) Nicholas A. Bader, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 (eServed) Michael W. Malone Polaris Sales and Service, Inc. 2100 Highway 55 Medina, Minnesota 55340-9770 Charles R. Northey Sky Powersports North Orlando, LLC 246 McLean Point Winter Haven, Florida 33884 Nathan D. Stickney Sky Powersports North Orlando, LLC 709 Elkhorn Fern Lane Deland, Florida 32720 Jonathan Brennen Butler, Esquire Akerman, LLP Suite 1100 West Tower 777 South Flagler Drive West Palm Beach, Florida 33401 (eServed) STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CYCLE SPORT CENTER, INC., d/b/a CYCLE SPORT CENTER, CASE NO.: 14-6038 Petitioner, vs. POLARIS SALES AND SERVICE, INC., AND BROWARD SKY POWERSPORTS NORTH ORLANDO, LLC, Respondents, / RESPONDENT'S MOTION TO DISMISS AND TO DICTION Respondent, POLARIS SALES AND SERVICE, INC. ("Polaris"), by and through their undersigned counsel and pursuant to Sections 120.569, 320.642 and 320.642, Florida Statutes, and Florida Administrative Code Rule 28-106.204, respectfully move for entry of an Order dismissing the Petition initiating this proceeding and relinquishing the Division of Administrative Hearings' jurisdiction over this proceeding. As grounds, Polaris states as follows. 1 This proceeding was initiated by the Petition Protesting Establishment of Dealership Pursuant to Florida Statutes Section 320.642 ("the Petition") filed by Petitioner CYCLE SPORT CENTER, INC., d/b/a CYCLE SPORT CENTER (‘Cycle Sport"). In relevant part, Cycle Sport is protesting Polaris’ Notice of Intent to establish Sky Powersports North Orlando, LLC ("Sky") as an additional dealer for the sale of Polaris' line of Slingshot motorcycles at 855 North U.S. Highway 17-92, Longwood, Florida ("the Notice of Intent"). 2. On January 15, 2015, however, Polaris filed formal notice of withdraw of the Notice of Intent with the Florida Division of Motor Vehicles, whereby Polaris withdrew its request that Sky be authorized as an additional dealer of the Slingshot line. A copy of Polaris Notice of Withdraw is attached as Exhibit A. 3. As a consequence of Polaris' withdraw of its Notice of Intent, there is no longer any basis or need for an administrative hearing on Cycle Sport's Petition protesting the Notice of Intent, Rather, Cycle Sport's Petition is now moot as there are no substantial interests or rights of the parties to be adjudicated nor any disputed facts to be determined. 4. Polaris accordingly requests that the Division of Administrative Hearings dismiss this proceeding and relinquish jurisdiction of this matter to the Division of Motor Vehicles. Respectfully submitted, !s/ Jonathan B. Butler Jonathan B. Butler, Esq. Florida Bar No. 56197 Akerman LLP 777 South Flagler Drive, Suite 1100 West West Palm Beach, FL 33401 Office: (561) 671-3642 Fax: (561) 659-6313 E-mail: jonathan. butler@akerman.com Secondary e-mail: luke.bovat@akerman.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 23, 2015, I electronically filed the foregoing document with the Division of Administrative Hearings via eALJ, and served the foregoing documents via U.S. Mail and email on Robert C. Byerts, Esq. and Nicholas Bader, Esq., Bass, Sox and Mercer, 2822 Remington Green Cir, Tallahassee, FL 32308. /s/ Jonathan B. Butler Jonathan B. Butler, Esq. Florida Bar No. 56197 G— PSLaARIs “~~ SALES inc. Polaris Sales Inc, 2100 Highway 55 Medina, MN 55340-9770 763-542-0500 763-847-8149 fax January 15, 2015 Nalini Vinayak, Administrator Dealer License Section Division of Motor Vehicles 2800 Apalachee Parkway Room A-312, MS-65 ; Tallahassee, FL 32399-0635 Dear Nalini Vinayak, On October 30, 2014, Polaris Sales Inc. provided the Florida Division of Motor Vehicles with notice that It intended to authorized Sky Powersports North Orlando, LLC., d/b/a Sky Powersports North Orlando as a dealership for the sale of Slingshot at 855 North Highway 17-92, Longwood, FL, 32750. Polaris hereby formally withdraws that notice of intent to authorize. Please acknowledge receipt of this letter and notice of withdrawal, Should you require any additional Information, please contact Peggy Payne at 763-847-8403. Sincerely, % ee ¥ UMICHAUL ULE bus Michael W. Malone ~ { VP Finance, CFO
The Issue The issue presented for decision herein is whether or not the sign involved herein located, on the west side of State Road 9336, 2 miles south of Palm Drive (S.W. 344 Street) in Florida City, has a state sign permit and has been maintained in an unsightly and insecure condition.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. John Hudson is the owner of Everglades Tours. The sign in question is located on the west side of State Road 9336, 2 miles south of Palm Drive (S.W. 344 Street) in Florida City. Mr. Hudson erected the sign in question after checking with an independent advertising sign company and determined that the cost for contracting to have the sign erected was cost prohibitive. The sign in question bears the following legend: Alligator in the Wild - Wowee! Airboat, with an arrow showing the direction of Everglades Tours. (Petitioner's Exhibit 7 and 8) The sign in question is located 30 feet south of the intersection of State Road 9336 and 192 Avenue. The zoned right of way at this location is 125 feet. (Petitioner's Exhibit 7) The location of the sign was inventoried and its location measured by Petitioner's Outdoor Advertising Manager, William C. Kenney, III. There is no sign permit for this sign. The sign is not permanently attached to the ground and is not securely mounted on what appears to be a rusty swing set. The location of the sign is within an area zoned GU. The erection of commercial signs in an area zoned GU is Prohibited. (Testimony of William C. Kenney, III) Respondent was served a copy of the Notice of Violation for the subject sign on June 7, 1983. Respondent does not dispute the factual allegations set forth in the Notice of Violation. Respondent's position is simply that he contacted an independent advertising agency who advised that a temporary sign, as Respondent contends that this is, would have been permitted by an independent advertising agency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Department of Transportation, issue a Final Order ordering the removal of the sign involved herein. RECOMMENDED this 18th day of May, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, 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 18th day of May, 1984.
