The Issue The issues to be resolved in this proceeding concern whether Petitioner materially failed to comply with certain state contract conditions and whether, pursuant to pertinent rules, the Petitioner should be removed from the approved "vendor's list" and thereby precluded from bidding on proposed procurements of the Respondent agency.
Findings Of Fact Southern Communications Group was a partnership consisting of Mr. Daus, Timothy Barfield and another individual as general partners at the time Southern's bid for the telephone procurement in question was submitted. Southern is on the approved vendor's list maintained by DGS and is a qualified State contractor. Some time in early January 1988, after the subject contract was awarded to Southern, Tabco Enterprises, Inc. acquired Southern Communications Group, at which approximate time Mr. Barfield assumed management of the operation of Southern Communications. The Division of Purchasing of the Department of General Services is the state agency responsible for preparation and administration of state contracts for various commodities. State agencies are obligated to use these contracts. The Division of Purchasing of DGS is responsible for maintaining a list of approved vendors and has authority under Rule Chapter 13A-I, Florida Administrative Code to remove vendors who failed to perform as obligated under State contracts. One of the State wide commodities contracts prepared and administered by the Division of Purchasing is for "telephone instruments - not installed". Ms. Cherrie McClellan is a Purchasing Specialist with the Division who is responsible for the administration of this contract. She prepared the bid packets for the telephone instrument contract underlying the dispute in this case, contract No. 482-730-030-W (the contract). She prepared the bidding documents involved based upon general conditions promulgated by the Division, certain special conditions she prepared herself and technical specifications supplied by DGS's Division of Communications. She then issued the bid package to vendors who were on the previously existing mailing list, including the Petitioner. General condition Four E of the Invitation to Bid (ITB) states in pertinent part: It is understood and agreed that any item offered or shipped as a result of this bid shall be new (current model at the time of this bid) Prior to the bid award DGS had already interpreted and expressed the policy to the effect that the term "new" meant unused, never before installed, telephone equipment which is an acceptable current production model. The agency received a number of bids including one from Southern. During the bid evaluation Ms. McClellan noted that one bidder's price seemed unusually low based upon her experience with new telephone prices. She examined that bid and learned that the low prices were for re-manufactured as opposed to new telephone equipment. This bidder was notified of this fact and was thereafter disqualified from the bid award process for its failure to offer new equipment. Thereafter Ms. McClellan also noticed that prices in the bid submitted by Southern were unusually low and similar to those of the disqualified bid. Consequently, she attempted to contact Mr. Norris Daus who had submitted the Southern bid. After a number of unsuccessful efforts, she reached Mr. Daus by telephone on October 3, 1987 and inquired whether his quoted prices were for new as opposed to re- manufactured or refurbished instruments. Mr. Daus verbally confirmed that the prices were for new equipment. Mrs. McClellan's supervisor, Mr. John Fain, was also aware of the unusually low prices submitted by Southern in response to the ITB and he too conversed with Mr. Daus by phone. According to Mr. Fain, Mr. Daus confirmed that he understood that the bid called for new equipment. Mr. Daus, however, at hearing, testified initially that he had not spoken with Mrs. McClellan and then later said that he had no recollection of speaking with her. He contended that she had called him in January of 1988, after the contract was entered into. His testimony is somewhat equivocal and is not deemed as accurate as that of Mrs. McClellan and Mr. Fain and therefore, based upon the totality of the corroborating circumstances in evidence, including Mrs. McClellan's handwritten memo recording her efforts to contact Mr. Daus, is rejected in favor of her testimony and that of Mr. Fain. In any event, in December of 1987, Southern was awarded the contract based in part on the verbal representations of Mr. Daus to the effect that the telephones to be supplied were to be new instruments and not re-manufactured or re-furbished ones. The contract term commenced on January 20, 1988 and should have run through January 19, 1989. Early in the contract period, Mrs. McClellan received a complaint from a State agency reporting that Southern had supplied telephones under the contract which were not new instruments. She telephoned Mr. Barfield with Southern to inquire about this matter and requested that he come to her office to discuss the agency's complaint. Mr. Barfield testified, however, that the visit to her office was at his own instigation in order to learn more about his obligations under the contract and that only general issues about his obligations under the contract were discussed. Mrs. McClellan, however, discussed specifically her prior conversation with Mr. Daus, her concerns that the contract called for new equipment only and that they had reports that re- manufactured equipment was being supplied in some instances. She further testified that Mr. Barfield agreed to stop shipping re-manufactured instruments and to supply only new equipment thereafter. In view of the fact, established in evidence, that DGS had already expressed concerns to Mr. Daus about the provision of re-manufactured equipment instead of new before the conversation with Mr. Barfield, Mrs. McClellan's testimony is accepted concerning the subject matter of and the communications made during the meeting in question over that of Mr. Barfield. Later, in early 1988, Mrs. McClellan received other agency complaints concerning Southern's performance under the contract to the same effect, that is, that re-manufactured telephones instead of new ones were being supplied. After reviewing a number of these complaints, she again telephoned Mr. Barfield and confronted him with the complaints, directing him in March, 1988, to ship only newly manufactured equipment. Neither Mr. Daus nor Mr. Barfield had outwardly disagreed with Mrs. McClellan's interpretation of the word "new" and neither requested any written interpretation of that term. Mr. Barfield admitted that Mrs. McClellan directed him, in March 1988, to ship only newly manufactured equipment. Mrs. McClellan forwarded the complaints from the agencies which had received non-compliant instruments from Southern to Mr. Barfield. At least one non-compliant telephone instrument had been delivered to the University of North Florida. Non-compliant ten button telephones were delivered to the Palm Beach Detention Center, two non-compliant six button DTMF telephones were delivered in Crestview, Florida on behalf of the Apalachee Correctional Institution and two non-compliant telephones were supplied through the Apalachee Correctional Institution for delivery to DeFuniak Springs. Additionally, a non-compliant telephone instrument was delivered to District 11 of the Department of Health and Rehabilitative Services. DGS' Exhibits 6-10 relate to these complaints. Mr. Barfield received all of these complaint letters from Mrs. McClellan but only replaced telephone instruments at the University of North Florida with new, unused ones. Mrs. McClellan received certain telephones from the agencies which were allegedly non-compliant, re-manufactured ones which had been supplied these agencies by Southern. She forwarded these to Florian "Sam" Houston, the Supervisor of the Access Systems Section, Division of Communications. She requested that he examine the telephones in question to determine if they were in compliance with the contract requirements, that is, new and unused telephones, or alternatively, whether they were re-manufactured telephones. Mr. Houston is a telecommunications expert with over 17 years experience in the communications and aerospace telecommunications industry. His section is responsible for all telephone systems supplied to the State agencies. His staff prepared the technical specifications for the contract in question and he himself reviewed those specifications. He and his staff examined the three telephones submitted for inspection and determined that they contained used parts and were therefore not new telephones as required by the contract. Mr. Houston sent Don Daniels of his staff to perform field inspections of certain telephones supplied by Southern. Mr. Daniels thus found four non- compliant telephones in West Palm Beach, two in Crestview and two more in DeFuniak Springs, referenced above. DGS Exhibit 6 is the notification from the agency to Southern that a sample telephone instrument had been found to be non-complaint with the contract specifications and DGS thereby gave Southern Communications ten days to correct that situation or to be found in default on the contract. DGS Exhibits 7-10 are similar letters informing Southern of similar failures to perform with reference to the other non-compliant telephones referenced above. Each letter gives Southern ten days to comply or be found in default. A re-manufactured telephone involves a previously used instrument which is taken out of service, disassembled, thoroughly cleaned with any broken or unserviceable parts being replaced. It is then re-assembled to certain standards. When a re-manufactured phone is resold for further use, it must meet Federal Communications Commission standards. Those standards refer, however, to the transmitting and receiving capability and do not relate to the durability of the instrument itself. "Refurbishing" generally involves a less detailed re- juvenation process involving cleaning and placing in serviceable working order. Both terms describe the process of creating a finished product which contains used original parts. Mr. Michael Johnson, whose company supplied the re- manufactured instruments to Southern Communications which are in dispute here established that those terms are in reality interchangeable. In any event, DGS uses a ten year life expectancy for telephones on State contracts assuming those are new telephones. Ten years is the normal life expectancy accepted in the industry for new telephones. The life expectancy for re- manufactured instruments is significantly less and in some cases only five years. A decreased life expectancy of such instruments is due to the re-use of used components, some of which may already surpass the original life expectancy in the original condition instruments. In fact, according to Mr. Johnson, his company might even use twenty year old parts in some re-manufactured phones. While it is true that re-manufactured phones carry identical one year warranties as do new phones, the re-manufactured phones are not the service equals of new phones because re-manufactured instruments will not last as long and any telephone is used much longer than the warranty period itself. Re-manufactured phones appear to the casual observer and to the layman to be new phones. Casual inspection of such a telephone will not reveal any differences from a new telephone. The difference between new and re-manufactured instruments only becomes obvious when their covers are removed and they are disassembled and inspected. When State agency telephones are no longer needed for whatever purpose, they are declared surplus and sold or traded in. When they are traded in, re-manufactured phones have a significantly lower value than new phones, largely due to their used life expectancy versus that of new telephones. It is also true that re-manufactured telephones cost both the supplier and the purchaser significantly less than new instruments. Southern does not dispute that it supplied re- manufactured telephone instruments to users of the State contract in question. It maintains, however, that re-manufactured phones are the equivalent of new phones and that the specifications in the ITB documents regarding new phones was not specific enough to show any indication that re-manufactured phones were non- compliant and that since re-manufactured phones meet "FCC" specifications and carry the same warranty as a new telephone that they are no different than new telephones. In view of the above findings, however, re-manufactured phones are not the functional equivalent of new telephones because of their shortened useful life. In any event, Southern is belatedly disputing the nature of the specification regarding new telephones in the ITB and in the contract. It accepted without protest the provision in the Invitation to Bid documents and in the contract concerning "new" telephones, quoted above. Moreover, through communication by Mrs. McClellan to Mr. Daus before the contract was actually awarded, Southern was verbally informed of the Department's policy concerning what it deemed new phones to mean and that policy was proven by the testimony of Mrs. McClellan concerning her conversation by phone with Mr. Daus, as well as the fact that she had previously stricken the bid proposal of another vendor because that vendor was proposing to supply re-manufactured telephones. Southern should have known at the time that it was awarded the contract that re-manufactured equipment was not acceptable. Mr. Fain and Mrs. McClellan had provided adequate notice of this by their verbal contact with Mr. Daus. Clearly Southern knew that re-manufactured equipment would not be acceptable well before it cancelled the contract at any rate. Mr. Barfield admitted that Mrs. McClellan directed him to ship only newly manufactured equipment in March, 1988. Neither he nor Mr. Daus, before or after award of the contract, ever disagreed openly with the agency's interpretation of the word "new" in the specifications. Neither of them, nor any person on behalf of Southern, requested any written interpretation or clarification of that word in the specifications prior to bidding or at any time thereafter. The exact number of telephones supplied as re- manufactured by Southern is unknown. Southern supplied a total of 1723 telephones. The only way to determine the exact number of re-manufactured instruments would be through field examination of each phone sold by Southern or possibly through records that Southern may maintain concerning orders from its suppliers, and its inventory, if such exist. They are not in evidence however. In any event, Southern continued to ship re- manufactured instruments even after the March 9, 1988 conversation between Mr. Barfield and Mrs. McClellan wherein she instructed him to cease that practice. Mr. Barfield's testimony is indefinite on the question of when Southern ceased shipping re- manufactured instruments under the contract, if at all. Mr. Barfield testified at one point that only originally manufactured equipment was shipped after his March, 1988 conversation with Mrs. McClellan, but he later testified that he continued to ship re-manufactured equipment after that conversation, but stopped at some point thereafter. He did not establish when that was. Although directed by the Department to replace those re-manufactured instruments with new telephones, Southern replaced no re-manufactured instruments other than those supplied to the University of North Florida. Mr. Barfield stated in his testimony that he did not intend to replace any more re- manufactured telephones. DGS has not followed a policy or practice of accepting re-manufactured equipment pursuant to such a contract. Mr. Herman P. Barker is an expert in State procurement. He has been employed in that field since 1967. He was unaware of any instance where refurbished or re-manufactured telephones have been accepted when a contract calls for new equipment. Agencies using the State contract for such purchases typically deal directly with the approved contractor. The agencies receive the items which are the subject of such a contract and determine themselves whether the proper models have been delivered. The agencies, however, do not have the necessary expertise to perform technical evaluations of each instrument received and are not required under the terms of such contracts, including this one, to disassemble goods in order to make inspections and evaluations before acceptance upon the delivery of the instruments. If an agency cannot resolve a problem with a vendor, the agency then refers the matter to DGS and the DGS Purchasing Agent for the commodity in question gathers information about the dispute and contacts the contractor. Two contract users contacted Southern directly, Mr. McMullen of the University of North Florida and William A. Walker. Mr. Walker asked Southern to supply new instruments and agreed to return the re- manufactured ones upon receipt of the new instruments. Southern did not respond to Mr. Walker's request for new telephones nor did it replace other telephones as directed by DGS. Southern has taken the position that the agencies are precluded from challenging any purported nonconformance with the contract after they have accepted delivery of the instruments. Southern maintains that the agencies had an opportunity to inspect the instruments upon receipt, and if no complaint was registered with the contractor upon that initial inspection and acceptance, then title to the instrument passed and no complaint of non-performance of the contract with regard to those instruments may be thereafter asserted. The Petitioner contends that the place and method of inspection was fixed by the contract between the parties here as being the place of destination.1/ The fact remains, however, that the purchasers or recipients of the goods under the contract here, the agencies, did act within a reasonable time after delivery to complain of the nonconformance of the instruments. That is, the defects in the instruments were latent defects, not readily discernible upon delivery of the instruments to the purchasers and users because the instruments did operate as specified. The fact that they contained used parts and were re- manufactured instruments was not readily discernible without disassembling each unit. Thus, under the circumstances of this case, involving the latent nonconformance of the instruments, the rejection of the instruments by the agencies who happened to learn, at some time after delivery, that they were previously used instruments, must be deemed to have come within a reasonable time after delivery or tender. Notification of that fact by the agency to Southern was therefore seasonable./2 The defects involved in these instruments are not such that the personnel of the agencies should have discovered the nonconformance upon delivery because the nonconformance with the contract specification was not readily discernible to anyone who had no expertise in the manufacture and assembly of telephone instruments. The seller, Southern, was informed within a reasonable time after personnel of DGS, who did have expertise in such matters, discovered the nonconformance (when Mr. Houston's employee performed the inspections and evaluations of the instruments about which the agencies had raised questions.) Thus it is found that the "buyers", the agencies, did notify Southern within a reasonable time after they should have discovered the "breach".3/ Southern did not replace any other telephones as directed to by DGS except for those supplied to the University of North Florida. In response to some of DGS' letters, Southern did issue United Parcel Service "call tags" or "pick up orders" to some of the agencies. Southern provided no explanation of the purpose of these call tags to the agencies. It was not shown that all these agencies had knowledge that they had been supplied re-manufactured, as opposed to new telephones, upon the point of the receipt of these call tags. Southern received one telephone to exchange in response to these call tags. The agencies needed to have phones available to them and could not relinquish the nonconforming telephones and then be forced to wait on supply of new ones without phone service during the interim. Ultimately, DGS determined that Southern Communications should be held in default for failure to supply compliant equipment under the contract and noticed Southern of its intent to remove it from the approved bidders' list.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the Department of General Services removing Southern Communications Group, a division of Tabco Enterprises, Inc. from the State approved vendor list, until such time as that entity identifies and replaces all re-manufactured instruments which it sold under the subject contract or reimburses the Respondent for the costs of cover and re-procurement. DONE and ENTERED this 23rd day of October, 1989, at Tallahassee, Florida. P. MICHAEL RUFF 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 23rd day of October, 1989.
The Issue The issues to be determined are: a) whether Petitioner’s sign for Crestview Paint and Body is located within Department of Transportation’s (“Department” or “Respondent”) right-of-way; and b) whether the sign is entitled to an on-premises exemption from permitting.
Findings Of Fact The Department of Transportation is the state agency responsible for regulating outdoor advertising along interstates and federal-aid primary roads in accordance with chapter 479, Florida Administrative Code Chapter 14-10, and a 1972 Federal- State Agreement. Petitioner, Crestview Paint and Body, owns and operates an auto body repair shop on 956 West James Lee Boulevard in Crestview, Florida, and has maintained that location since 1988. In 2006, Petitioner bought property at 701 South Ferdon Boulevard in Crestview, Florida, including a pre-existing sign for Jet Muffler and a building with four units. Petitioner opened the business location in 2007, and replaced the Jet Muffler sign with one for Crestview Paint and Body. One of the issues of dispute in this matter is whether Petitioner conducted business at the Ferdon Boulevard location. Mr. Lowe, owner of Crestview Paint and Body, testified that the Ferdon Boulevard location was operated as a concierge service for Crestview Paint and Body. Mr. Lowe maintains a business occupational license for the Ferdon location and the license was effective and valid when Respondent issued the Notice on April 17, 2017. While a tax collector print-out reflected the business was closed, the credible evidence supports that the concierge location maintained a valid business occupation license. Mr. Lowe had business cards made with a photograph of the Ferdon Boulevard location showing Hertz and Crestview Paint and Body, and the words “Collision Concierge and Rental Car Center, 701 S. Ferdon Blvd, Crestview, Florida.” Another card read “2 Locations to Serve You Better” with the addresses for Ferdon Boulevard and James Lee Boulevard. The Crestview Paint and Body sign at issue here was located at the Ferdon Boulevard location. It was erected at the same spot as the predecessor sign that advertised the Jet Muffler business and installed under permit No. 2007-0430. Petitioner complied with all Crestview local ordinances required to erect the sign. As the sign was replacing an established sign, it is not clear if the City of Crestview required a survey of the location prior to installation. The sign has been owned and operated by Crestview Paint and Body in its current location for the past 10 years. Wayne Thompson, an employee of Crestview Paint and Body, testified that he works at the Ferdon location periodically. He meets customers at the location as needed, an average of two times per month. An employee was initially assigned to work full-time at the concierge location, but the position was reduced to part-time, and eventually eliminated. Senida Oglesby, a former customer of Crestview Paint and Body, testified that she received concierge service at the Ferdon Boulevard location. She took her vehicle to the location and it was transferred to the main location for completion of service. However, Ms. Oglesby stated she was last at the business approximately 3 to 4 years ago. Mr. Lowe testified that he completed an inspection of a vehicle at the concierge location on an undetermined date. Respondent asserts that its investigator visited the Ferdon Boulevard location on February 7, 2017; April 17, 2017; and May 15, 2017, and observed no business activity and concluded there was no business being conducted on behalf of Crestview Paint and Body at the location. The credible evidence demonstrates that there was no legitimate business activity being conducted on behalf of Crestview Paint and Body at the Ferdon Boulevard location. Ferdon Boulevard is a federal-aid primary highway subject to Department permitting in accordance with chapter 479. Crestview Paint and Body has never requested or received a permit for the display of outdoor advertising at the Ferdon Boulevard location. In 2015, Crestview Paint and Body leased Bay 101 of the Ferdon Boulevard location to a vape and smoke shop. The header signs positioned above the units numbered 101, 103, and 104 had signs for the vape and smoke shop. There was no header sign above unit 102. Mr. Collins placed a Notice sticker on the Crestview Paint and Body sign located at Ferdon Boulevard. On April 18, 2017, a written copy of the Notice was sent to Crestview Paint and Body at the James Lee Boulevard location. In preparing for the hearing, Billy Benson, a Department outdoor advertising field administrator, discovered that the sign appeared to be partially on the property owned by Crestview Paint and Body and partially on the Department’s right-of-way. The Department’s right-of-way is defined in section 334.03(21), Florida Statutes, as land in which the Department owns the fee or has an easement devoted to or required for use as a transportation facility. At the sign’s location, the right-of-way extended 50 feet to the right and 47 feet to the left of the centerline of Ferdon Boulevard. Mr. Collins again visited the Ferdon Boulevard location along with Sam Rudd. Mr. Collins and Mr. Rudd located survey markers to the north and south of the sign establishing the Department’s right-of-way line extending 10 feet beyond the edge of the sidewalk. The front edge of the sign began at two feet beyond the edge of the sidewalk and the back edge of the sign was 12 feet beyond the sidewalk. A survey conducted by a Department survey crew in November 2017, confirmed that 7.8 feet of the sign was located within the Department’s right-of-way and 2.6 feet of the sign was on Petitioner’s property. On September 20, 2017, the Department issued an Amended Notice of Violation–Illegally Erected Sign, noting that in addition to being an unpermitted sign in violation of section 479.105, the sign was located within the Department’s right-of- way in violation of sections 479.11(8) and 337.407. On September 20, 2017, the parties filed an Agreed Motion for Continuance, based on the recently discovered information and the sudden death of Mr. Lowe’s father. The motion provided: This matter involves an unpermitted sign in Okaloosa County. The department recently surveyed the sign’s location and determined the sign is within the Department’s right of way. Consequently, the department is issuing an amended notice of violation citing section 337.407 and 479.107, Florida Statutes, in addition to the initial reason for the violation based on section 479.105, Florida Statutes. The Department believes it is in the interest of judicial economy to have all charges determined in a single hearing. The Petitioner has indicated additional time will be needed to respond to the notice of violation as amended. Petitioner contends that it objected to the Department’s amendment of the Notice initially filed in this matter. While the Department did not properly file a Motion to Amend its Notice, there was no showing that Respondent was prejudiced by the Department's failure to comply with all requirements of the statute. Assuming arguendo there was prejudice, any prejudice alleged by Petitioner was cured. Petitioner agreed to the continuance, which stated the amendment of the Notice as a basis for the continuance. Further, Petitioner had more than 60 days to conduct discovery regarding the new allegations and had sufficient time to prepare for the hearing.
Recommendation Upon consideration of the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order finding that Petitioner’s sign was erected and maintained on the Department’s right-of-way. Further, the final order should find that Petitioner is not entitled to an exemption for an on-premises sign. DONE AND ENTERED this 1st day of February, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 1st day of February, 2018. COPIES FURNISHED: Dixie Dan Powell, Esquire Powell Injury Law, P.A. 602 South Main Street Crestview, Florida 32536 (eServed) Susan Schwartz, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Michael J. Dew, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed)
The Issue The issue in the case is whether the Petitioner received appropriate compensation for telephone service interruptions and whether the Respondent and the Intervenor have acted appropriately under applicable statutes and administrative rules in resolving the Petitioner’s complaint.
Findings Of Fact Calvin "Bill" Wood resides on Schaefer Lane in Lake Wales, Florida, and receives local telephone service from GTE. GTE is a telecommunications service provider doing business in Florida and regulated by the PSC under the authority of Chapter 364, Florida Statutes, and Chapter 25, Florida Administrative Code. In May 1997, the Petitioner began to experience telephone service problems, including line static and service outages. According to GTE records reviewed by PSC personnel, GTE responded to the Petitioner’s reports of telephone service problems. GTE attempted to identify and repair the causes of the problems over an extended period of time. The GTE records, as reviewed by the PSC personnel, indicate that the Petitioner’s problems continued and that he frequently reported the trouble to GTE. GTE’s "trouble reports" and summaries characterize the Petitioner’s service problems as "miscellaneous" and "non-service affecting" at times when the Petitioner’s complaint was a lack of dial tone. The inability to obtain a dial tone is a service- affecting problem. A GTE installation and repair manager testified that technicians will identify a problem as "miscellaneous" and "non- service affecting" when they are unable to identify the cause of a problem, or when the problem is intermittent and is not active at the time the technician tests the line. Notations on records suggest that frequently the problems were not apparent at the time of testing. In any event, the Petitioner’s telephone service problems continued through the summer and fall of 1997. By the end of 1997, the Petitioner complained that one of his neighbors was often unable to call him. On December 30, 1997, the Petitioner filed a complaint with the PSC Consumer Affairs Division, alleging that his telephone service was inadequate, specifically that the neighbor could not call him, and that his phone did not ring. The Petitioner’s complaint was tracked in the PSC Consumer Affairs Division computer system. At the time the complaint was filed, the PSC complaint tracking systems were not integrated between PSC divisions, resulting in individual consumer complaints being routed to various PSC personnel who were unaware that the consumers problems were already being investigated by other PSC personnel. PSC consumer complaints are now handled by an integrated docketing system. Beginning after the filing of the complaint of December 30, 1997, the PSC began to inquire into the Petitioner’s telephone problems. In response to contact from the PSC, GTE acknowledged that service problems existed and indicated that lightning possibly damaged the Petitioner’s telephone service. GTE stated that the main cable providing service to the Petitioner would be replaced. By letter dated February 3, 1998, the Petitioner advised GTE and the PSC that he would withhold payment of his telephone bill until such time as his phone service was functioning and the neighbor could call him without problem. On February 11, 1998, GTE made repairs to the Petitioner’s "drop wire" and connection. GTE also examined the Petitioner’s owner-supplied telephone equipment and determined that it was defective. The Petitioner agreed to acquire another telephone. On February 12, 1998, GTE personnel visited the Petitioner’s home to determine whether the service had been restored. At that time, the Petitioner asked them to check with the neighbor whose calls were not being received by the Petitioner. On February 12, 1998, GTE personnel visited the neighbor and determined by observation that the neighbor’s calls to the Petitioner were being misdialed. On February 26, 1998, GTE installed new cable to serve the Petitioner but were unable to connect his telephone to the new cable because GTE’s "serving cable pairs" were defective. Weather-related problems prevented the company from correcting the defective "serving cable pair" problem on February 27, and apparently on any subsequent day prior to March 9, 1998. GTE provided a credit of $1.78 on the Petitioner’s February 1998 telephone bill for the time the phone was out of service. GTE also provided a $25 credit as part of GTE’s "Service Performance Guarantee." The "Service Performance Guarantee" provides a $25 credit to a GTE customer when the customer-reported service issue is not resolved within 24 hours. On March 9, 1998, GTE personnel visited the Petitioner and found that earlier in the day, the Petitioner’s home had been destroyed by a tornado. The GTE personnel testified that they advised the Petitioner to contact them when his electrical service was restored and the telephone would be reconnected. The Petitioner testified that he told the GTE personnel he intended to live in a camper trailer he would place next to his house and testified that the GTE personnel told him they would return to connect his phone service. The GTE personnel did not hear from the Petitioner and did not immediately return to connect phone service. The Petitioner did not contact GTE to advise that his electrical service had been restored. The next day, March 10, 1998, GTE notified the Petitioner that his telephone service would be disconnected for nonpayment of an outstanding balance in excess of $600. The GTE notice established a deadline of March 19, 1998, for payment. On March 11, 1998, the Petitioner requested that his calls be forwarded to his neighbor’s home. GTE complied with the request and began forwarding the Petitioner’s calls on March 13, 1998. On March 23, 1998, GTE personnel attempted to visit the Petitioner and ascertain the situation, but the Petitioner’s private drive was barricaded. The GTE representative assumed that the condition of the property was not suitable for reconnection of telephone service. By letter to the PSC dated March 25, 1998, the Petitioner complained that the phone service to his property had not been restored. On March 25, 1998, the Petitioner’s telephone service was disconnected for nonpayment of the outstanding balance on his account. On March 27, 1998, GTE advised the Petitioner that his telephone service would be "permanently" disconnected if the outstanding balance of $664.02 were not paid. GTE provided another $25 SPG credit on the Petitioner’s March 1998 bill. On April 2, 1998, the Petitioner informed the PSC that he had no telephone service and requested an informal conference to resolve the matter. The Petitioner offered to escrow his telephone payments until his service was repaired to his satisfaction. On the same day, GTE notified the PSC that the Petitioner had the outstanding unpaid balance. Because the Petitioner’s complaint was still pending and the PSC had not proposed a resolution, the Petitioner’s request for an informal conference was premature. In subsequent letters, the Petitioner continued to seek an informal conference prior to completion of the investigation. The PSC did not act on the requests. There is no evidence that the Petitioner disputed the amount due on his telephone bill. The Petitioner’s decision to withhold payment of the bill was service-related. The PSC does not have authority to prevent a service provider from disconnecting service for nonpayment of undisputed telephone service charges. On April 4, 1998, GTE "permanently" disconnected the Petitioner’s telephone service for nonpayment. By letter to the PSC dated April 6, 1998, the Petitioner requested assistance in obtaining telephone service, asserting that a heart condition required access to a telephone. There is no evidence that prior to April 6, 1998, the Petitioner had advised either GTE or the PSC of any existing heart condition. By rule, GTE is required to maintain customer access to an emergency 911 communications system except where telephone service is "permanently" disconnected. Other than after the "permanent" disconnection of his telephone service, there is no evidence that the Petitioner lacked access to the emergency 911 system. By letter to the PSC dated April 8, 1998, the Petitioner alleged to the PSC that several of his neighbors were having telephone problems and were, for a variety of reasons, unable to contact the PSC to complain. The Petitioner attempted to involve a number of his neighbors in his complaint, but none of the neighbors filed a complaint with the PSC, and there is no evidence that the neighbors complained to GTE about any service problems. There is no evidence that any resident of Schaefer Lane filed a telephone service complaint with the PSC. There is no evidence that the Petitioner is authorized to represent his neighbors or neighborhood in this matter. On April 17, 1998, GTE offered to reconnect the Petitioner’s local telephone service and block all toll calls if he would agree to arrange payment of the outstanding balance. The Petitioner apparently refused the offer, but on April 20, 1998, GTE reconnected the local service and activated the toll block. GTE waived the $55 reconnection charge and suspended collection procedures pending resolution of the complaint the Petitioner filed with the PSC. On May 9, 1998, the Petitioner made payment of the outstanding balance of his telephone bill. The toll block should have been removed from the Petitioner’s telephone service at that time, but it was not. On May 13, 1998, the Petitioner notified the PSC that the toll block remained on his phone. The PSC notified GTE that the toll block was still active. GTE apparently did not act on the information. On May 29, 1998, the PSC tested telephone lines at the Petitioner’s home and at the home of the calling neighbor. The technicians detected no telephone line problem in any location. The PSC technician attempted to complete numerous calls from the neighbor’s home to the Petitioner. The technician’s calls were completed without incident. The neighbor was asked to dial the Petitioner’s number. The PSC technician observed that the neighbor misdialed the Petitioner’s telephone number on each of three attempts. GTE eventually provided and installed a "big button" telephone for the neighbor. GTE also provided speed-dialing service at no charge to the neighbor and instructed him on use of the service. The Petitioner asserts that the PSC technician violated PSC administrative rules by traveling with GTE personnel to the Petitioner’s and neighbor’s homes on May 29. The evidence fails to establish that the transportation constituted a violation of any administrative rule. By June 1, 1998, with the toll block still activated, the Petitioner filed a complaint with the PSC concerning the service disconnection and the toll block. The June 1, 1998, complaint was assigned to the Telecommunications Division and the PSC again relayed the complaint to GTE. GTE removed the toll block on June 4, 1998. At this point, the PSC realized that the Petitioner had filed two separate complaints and the agency combined the investigations. It is unclear as to the reason GTE did not remove the toll block after the PSC relayed the matter to them on May 13, 1998; but there is no evidence that it was done to retaliate against the Petitioner. Despite the toll call block, the Petitioner was able to make long distance calls by using a calling card. After GTE removed the block, GTE credited the Petitioner with the difference between the cost of the calls made using his calling card and the cost of the calls that would have been made using the regular long distance carrier had the toll block not been in place. GTE issued service credits of $2.14 and $1.65 on the Petitioner’s June bill for out-of-service claims. The Petitioner asserted that there were times when callers were unable to reach him, but the evidence fails to establish that failed calls were the result of service problems. The Petitioner had numerous telecommunications and computer devices attached to the line. Use of devices, including computers and fax machines, can result in an incoming call not being completed. The Petitioner also acknowledges that he sometimes does not answer the telephone. The PSC technician testified that as of May 29, 1998, he considered the service problem resolved. Tests on the Petitioner’s telephone lines revealed the lines to be in working order. Numerous calls placed to the Petitioner from the neighbor’s house and other locations were completed without incident. In mid-June 1998, the technician recommended that the case be closed. By letter dated June 17, 1998, the PSC advised the Petitioner of the informal resolution of the case and advised him of his right to request an informal conference. On August 18, 1998, the Petitioner informed the PSC that the neighbor was able to complete calls to him and considered that matter resolved, but asked for an informal conference. The PSC staff, attempting to negotiate a settlement of the dispute, did not convene an informal conference until May 12, 1999. The matter was not resolved at the May 12, 1999, conference. On July 15, 1999, the PSC staff filed its recommendation for action at the PSC’s Agenda Conference on July 27, 1999, at which time the PSC referred the dispute to the Division of Administrative Hearings. The Petitioner has previously asserted that he is entitled the $25 SPG credit for each time he called GTE to complain about his telephone service. There is no evidence that the Petitioner is entitled to any SPG credits beyond those he has already received. The evidence establishes that the Petitioner’s service- related problems were intermittent, required extensive "troubleshooting" to locate, and were repaired as soon as was practicable. The Petitioner’s monthly local telephone service charge is $10.86, or approximately 36 cents per day. The PSC staff calculates that the Petitioner is due a maximum "out-of-service" credit of $16.46 allowing for a period of approximately 46 days of credit. GTE has issued total credits in the amount of $110.57, including two $25 SPG credits and waiver of the $55 reconnect fee. Subtracting the $105 attributable to the two SPG’s and the reconnect fee credit from the total of $110.57 leaves the remainder of $5.57, which is the total of the three "out-of-service" credits ($1.78, $1.65 and $2.14) the Petitioner has received. Based on the PSC staff determination that the Petitioner was due a maximum of $16.46 in "out-of-service" credit, it appears that the Petitioner should receive an additional credit of $10.89.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Public Service Commission enter a final order requiring GTE to provide a credit of $10.89 to the Petitioner. DONE AND ENTERED this 10th day of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 10th day of May, 2000. COPIES FURNISHED: Calvin "Bill" Wood 10577 Schaefer Lane Lake Wales, Florida 33853 Kimberly Caswell, Esquire Post Office Box 110, MC FLTC0007 Tampa, Florida 33601-0110 Donna Clemons, Esquire Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 William D. Talbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Rob Vandiver, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Blanca Bayo Director of Records and Reporting Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
The Issue Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Read 814, 800 feet east of Powerline Road in Pompano Reach, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code. Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Road 84, 600 feet east of U.S. 441 in Fort Lauderdale, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code.
Findings Of Fact This cause comes on for consideration based upon the Petitioner, State of Florida, Department of Transportation's allegations against the Respondent, William E. Beal, d/b/a Beal Sign Service, which allegations charged the Respondent Beal with violations of Chapter 479, Florida Statutes, and Rule 14, Florida Administrative Code. The Petitioner, State of Florida, Department of Transportation, is an agency of State Government charged with the function of carrying out the conditions of Chapter 479, Florida Statutes, and such rules as have been promulgated to effect that charge. The Respondent, William E. Beal, d/b/a Beal Sign Service, is a business enterprise licensed under Section 479.04, Florida Statutes, to do business as an outdoor advertiser in the State of Florida. The Petitioner, through its form statement letter of violation and attached bill of particulars has accused the Respondent of violations pertaining to two signs. The stated violations alleged against each sign are common, in that the Respondent is accused in both instances of not having a permit as required by Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Cede, and is additionally charged in the case of both signs with maintaining improper spacing in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code. The facts of the case reveal that the first sign in contention is located on State Road 814, which is also known as Atlantic Boulevard, in Broward County, Florida. The copy of that sign contains the language, World Famous Restaurant, Kapok Tree Inn." This sign is depicted in the Petitioner's Exhibit No. 1 admitted into evidence, which is a photograph of the sign. The second sign in contention is located on State Road 84 and is depicted in the photograph which is Petitioner's Exhibit No. 2 admitted into evidence, and it carries the copy, "Villas of Arista Park." This particular sign is located in Broward County, Florida. Both of the signs in question are owned by the Respondent, Beal, and have been constructed by his business concern. The sign located on State Road 814 faces east and is 330 feet away from the nearest sign, which faces east; the latter sign has a permit and is owned by the Respondent. The disputed sign is part of a double-faced construction with the second side facing west. The sign on State Road 84 also faces east and is 292 feet away from the next sign, which faces east. The next nearest east-facing sign is permitted and is owned by the Respondent. Again, the disputed sign on State Road 84 is part of a double-faced apparatus whose second face is located in a westerly direction. The west faces of the signs have the proper State permits; however, the east faces, which are in dispute in this proceeding, do not have the proper State permits required by Subsection 479.07(1), Florida Statutes. That provision reads: "479.07 Individual device permits; fees; tags.-- Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided. Any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by the department. A permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4). The department shall not issue such a permit to any person in the business of outdoor advertising who has not obtained the license provided for in s.479.04." The sign at State Road 814 which is in dispute is neither a federal- aid primary highway nor interstate highway. It is a part of the state road system in the State of Florida. Nonetheless, it is outside any incorporated city or town and would require a permit. The sign at State Road 84, which has been referred to through the statement of violation, is in an unincorporated area of Broward County and would require a permit. In addition, it is a sign located on a federal-aid primary highway. The conclusion reached on the necessity of the Respondent to have the subject signs permitted is reached through an examination of the history of the two signs in question and the west-faced construction at the location of the two signs which are in controversy. In 1971 the Respondent applied to the Broward County Building and Zoning Department to he granted a permit to construct a single-faced, non- illuminated sign at the location, State Road 814. That request was granted and a single sign was constructed, which is the west-faced sign at the location. That sign remains today. A copy of the application for that sign permit may he found as Respondent's Exhibit No. 1 admitted into evidence. Some time in January, 1978, and as indicated by the document for application, January 6, 1978, the Respondent filed a request with the Petitioner for a permit for the east face that is disputed in the course of this hearing pertaining to the location on State Road 814, with the copy, Kapok Tree Inn. No prior permit had been issued for the construction of that east face through the offices of the Petitioner, nor to the knowledge of the Petitioner's employees had any permit been granted by Broward County for such a sign. A couple of days after the application was made for the permit for the east face of the sign on State Road 814, the sign structure itself was built. That structure was constructed at a time when the permit request had not been approved. Subsequent to the construction, an employee of the petitioner informed the Respondent that the permit request had not been approved and in August, 1978, the fees for such a permit were returned to the Respondent. The explanation for not approving the request for permit was due to the failure to comply with the Rule 14- 10.06(1)(b)3., Florida Administrative Code, pertaining to spacing between signs. (In addition, it was established in the hearing that the Petitioner was reluctant to approve the applications for either the State Road 814 or the State Road 84 signs in view of a certain action on the part of Broward County against the Respondent's east-facing signs on State Road 814 and State Road 84 for alleged non-compliance with the Broward County Ordinance, Section 39-946 and Chapter 42-4203.I, South Florida Building Code. The action with Broward County is still pending.) The permit application for the east-faced sign on State Road 84, which is the subject of this controversy, was made as notarized January 5, 1978. The history of the Respondent's signs located at this particular position is traced through an examination of the Respondent's Exhibit No. 2, which is a copy of the permit application filed with the Broward County Building and Zoning Department in 1974, requesting the right to construct and be permitted for a double-faced sign. That permit was granted and the west face was constructed and utilized by the Respondent and a proper permit still remains in effect. It is unclear from the record at what point the easternmost face of the double-faced sign was constructed, but it is clear that the east face was existent with the aforementioned copy in place when an employee of the Petitioner inspected the sign as a prerequisite to issuing the permit and on an inspection discovered that the sign was only 292 feet away from the next sign which faced east located on the road. The import of the Respondent's testimony did, however, seem to suggest that the west face of the double-faced sign was constructed at a time before the east face. Moreover, the Respondent by asking for the permit appeared to be of the opinion that the permit for the west face was insufficient in itself to meet permitting requirements for the east face. The east face of the sign at State Road 84 aid not have a state permit when it was inspected by the Petitioner's employee and to the knowledge of the Petitioner never had been permitted. Petitioner notified the Respondent that the sign at State Road 84, which is under consideration in this case, purportedly violated the provision in Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code, pertaining to spacing. This notification was through the Notice of Violation of February 15, 1978, and was tantamount to informing the Respondent that the permit application had been rejected. Even though a double-faced sign application was made with Broward County in 1974 for the sign apparatus to be located in the position on State Road 84, the requested utilization of the east face did not come about until January, 1978, and the Broward County permission to construct a double-faced sign did not grant the Respondent license which would allay the necessity of gaining a permit from the Petitioner to utilize the east face of that sign. Having established that no permit existed for the two signs in question at the time the Notice of Violation was filed on February 15, 1978, and having established the need for such a permit, there remains to be determined the question of whether or not the signs violated requirements for spacing purportedly found in Section 479.025, Florida Statutes, and Rule 14- 10.06(1)(b)3., Florida Administrative Cede. (Section 479.025, Florida Statutes, does not apply because it was repealed by Chapter 77-104, Laws of Florida, effective August 2, 1977.) Rule 14-10.06(1)(b)3., Florida Administrative Code, establishes the requirement that "no two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction." This requirement only applies to federal-aid primary highway; therefore, it would not have application to State Road 814, which is not a federal-aid primary highway. Consequently, the spacing requirements could not stand as a basis for denying the permit application as it pertains to the sign on State Road 814. Rule 14-.0.06(1)(b)3., Florida Administrative Code, would have application to State Road 84, which is a federal-aid primary highway. In view of the fact that the next east-facing sign on State Road 84, which is most adjacent to the sign on State Road 84 in dispute, is 292 feet from the structure on State Road 84, the disputed sign violates Rule 14-10.06(1)(b)3., Florida Administrative Code, as being less than five hundred (500) feet from the next adjacent sign on the same side of the highway and facing the same direction, and a permit should not be issued because of this violation of the spacing requirement. It should be mentioned that the Respondent has claimed the theory of estoppel in the course of the hearing on the question of the right to obtain permits for the signs and to avoid their removal. The theory of that claim of estoppel is that the Petitioner has failed to comply with Rule 14-10.04(1), Florida Administrative Code, on the requirements for permit approval and is estopped from denying the permit application. That provision states: "14-10.04 Permits. Permit Approval Upon receipt of Form 178-501 from an outdoor advertiser, the District will record the date received in the lower right hand corner of the form. Within fifteen days of the receipt the application must be approved and forwarded to the Central Office or returned to the applicant. The sign site must be inspected by an outdoor advertising inspector, to assure that the sign(s) will not be in violation of the provisions of Chapter 479, Florida Statutes, Title 23, Section 131, U.S. Code and local governmental regulations. If all these requirements are met and the measurements are correct, the inspector stamps the application 'Approved', signs it and dates his signature. Where two applications from different advertisers conflict with each other or are competing for the same site the first application received by the district office will be the first considered for approval. If the first one received is approved the second application will be disapproved and returned to the advertiser. Although the facts show that the Petitioner did not approve and forward the permit application to the Central Office or return it to the applicant within fifteen days as required, the Respondent went forward with his construction and/or utilization of the signs in question without receiving a permit which allowed for such construction and/or utilization. In the case of the sign at State Road 814, the sign was constructed before the expiration of the fifteen day period within which time the Petitioner could respond to the application. Furthermore, Rule 14-10.04(2), Florida Administrative Code, clearly indicates that no permit exists until the permit tag is issued, and the permit tag is not issued unless the District Office approves the permit application request. In both instances, the permit application request was not approved and a permit tag was not issued; and there being no entitlement to a default permit upon the expiration of a fixed period of time, and the Respondent having acted without permission to construct and/or utilize the signs and there being no facts proven which established the necessary reliance condition as a prerequisite to a claim of estoppel, estoppel does not pertain. That provision of Rule 14-10.04(2), Florida Administrative Code, states: "14-10.04 Permits. Permits Issued Upon Approval: Upon receipt of the approved application with payment of the permit fee, the Outdoor Advertising Section, Central Office, issues the permit tag. The tag will be issued within 30 days of receipt in the District Office. The advertiser shall attach the permit tag to the face of the advertising structure, advertising sign or advertisement on the end nearest the highway in a manner that shall cause it to be plainly visible but not readily accessible by the general public." At best, the Respondent could have inquired of the Petitioner at a time thirty (30) days from the receipt of the two applications to determine why the applications had not been approved or returned to the Respondent. And in the absence of a satisfactory explanation, moved in the appropriate forum to mandate compliance with Rule 14-10.04, Florida Administrative Code. Instead, the Respondent moved at his own jeopardy to construct and/or utilize the two subject signs, which are indicated in the Notice of Violation, and by doing so ran the risk that he would not gain the necessary permits and would stand to have the signs removed under the provision of Section 479.17, Florida Statutes. Under these circumstances, the Petitioner is not estopped from requesting the removal of those signs.
Recommendation It is recommended that the signs located at State Road 814 and State Road 84 that are the subject matter of this dispute be removed. DONE AND ENTERED this 30th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1979. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Nancy Severs, Esquire Miller, Squire & Braverman 500 Northeast Third Avenue Fort Lauderdale, Florida 33301 =================================================================
The Issue Whether Petitioner violated Rules 25-24.512 and 25-24.515, Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Wilberth Gaviria, owns Gaviria, which is a pay telephone service provider in Miami, Florida, and which holds Certificate No. 3320 from the Florida Public Service Commission (Commission) issued on April 12, 1993. Wilberth and Heiner Gaviria jointly owned a company named South Telecommunications, Inc. (STI). Rule 25-24.511(4), Florida Administrative Code, restricts a pay telephone provider to a single certificate. In March 1996, the Commission denied STI's application for a certificate to provide public pay telephone service because Wilberth Gaviria held major ownership interests in both Gaviria and STI and a certificate had been issued to Gaviria. The Commission also denied STI's application because the Commission determined that STI had willfully misrepresented that it was not providing pay telephone service without a certificate. In May, 1995, the Florida Pay Telephone Association forwarded to the Commission a complaint from Liberty Tel. Inc. (Liberty), a pay telephone service provider in Miami. Liberty alleged that STI, although not issued a certificate by the Commission, was soliciting location owners under contract with Liberty. Liberty alleged that it had received seven letters from an agent of STI, advising that STI had entered into contracts with seven location owners alleged to be under contract with Liberty and requesting that Liberty remove its pay telephones from those locations. In response to the letters, Liberty advised the seven location owners of their contractual obligations to Liberty. Liberty also alleged in its complaint that it had checked three Gaviria pay telephones and found the following violations: local calls were limited to ten minutes for twenty-five cents; charges in excess of tariff for the Miami-Fort Lauderdale extended calling plan; 0+ calls were not routed to the local exchange company; incoming calls were blocked; the 211 repair message was incomplete; and STI nameplates were on the telephones. On October 23, 1995, the Commission received a complaint from Alberto Menendez of Alberto and Sons Meat Market in Miami, alleging that STI failed to return telephone calls concerning two pay telephones which were damaged and out of operation, failed to respond to messages requesting repair, failed to remove the telephones from Mr. Menedez's property until five weeks after a request to do so, and failed to restore the premises to a reasonable condition after removing the telephones. As a result of the complaints from Libery and Mr. Menendez, the Commission staff conducted four field evaluations, beginning in June, 1995. The Commission staff conducts field service evaluations of pay telephones in Florida using a checklist consisting of the following 29 criteria/violations: Telephone was not in service. Telephone was not accessible to the physically handicapped. Telephone number plate was not displayed. Address of responsible party for refunds/repairs was not displayed. Coin-free number for repairs/refunds did not work properly. Current directory was not available. Extended Area Service and Local calls were not $.25 or less. Wiring not properly terminated or in poor condition. Address of pay telephone location was not displayed. Instrument was not reasonably clean. Enclosure was not adequate or free of trash. Glass was chipped or broken. Insufficient light to read instructions at night. Name of provider (as it appears on the certificate) was not displayed. Local Telephone Company responsibility disclaimer was not displayed. Clear and accurate dialing instructions were not displayed. Statement of services not available was not displayed. Automatic coin return function did not operate properly. Incoming calls could not be received/or bell did not ring loud enough. Direct coin free service to the local operator did not work. Direct coin free service to local Directory Assistance did not work. Access to all available interexchange carriers was not available. Coin free service to 911 did not work. 911 could not verify the street address of the pay phone. Transmission was not adequate or contained noise. Did not comply with 0+ interLATA Toll rate cap - AT and T + opr. chg + $.25. Combinations of nickels and dimes did not operate correctly. Dial pad did not function after call was answered. 0 + area code + local number did not go to LEC operator as required. Hereinafter, these violations will be referenced by the number preceding each violation. For example, telephone not in service will be referenced as "1." On June 7, 1995, Ralph King, an evaluator for the Commission evaluated Gaviria pay telephone number 305 751 8327 and found the following violations: 1, 3, 4, 6, 9, 13, and 14. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 8523 and found the following violations: 3, 4, 6, 8, 9, 14, 15, and 16. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 633 9237 and found the following violations: 3, 4, 5, 6, 7, 9, 10, 15, 16, 19, 22, and 29. On June 9, 1995, Mr. King evaluated Gaviria pay telephone number 305 920 9902 and found the following violations: 2, 3, 4, 5, 6, 7, 9, 15, 16, 19, 21, and 22. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 854 9684 and found the following violations: 3, 4, 5, 6, 7, 9, 14, 15, 16, 22, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 854 9087 and found the following violations: 4, 5, 6, 7, 9, 14, 15, 16, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 324 9023 and found the following violations: 6, 9, 14, 15, 16, 22, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 350 9020 and found the following violations: 1, 4, 5, 6, 9, 13, 14, 20, 22, 23, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 350 9096 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 15, 16, 19, 22, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 573 8079 and found the following violations: 3, 4, 5, 6, 7, 9, 19, 22, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 8248 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 19, 22, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 8378 and found the following violations: 1, 3, 4, 5, 6, 7, 9, 13, 14, 16, 19, and 29. On June 6, 1995, Mr. King evaluated Gaviria pay telephone number 305 883 8281 and found the following violations: 4, 5, 6, 9, 13, 14, and 15. On June 6, 1995, Mr. King evaluated Gaviria pay telephone number 305 261 9899 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 15, 16, and 19. On June 8, 1995, Mr. King evaluated Gaviria pay telephone number 305 673 9337 and found the following violations: 4, 5, 6, 7, 9, 13, 22, and 29. On June 8, 1995, Mr. King evaluated Gaviria pay telephone number 305 673 9125 and found the following violations: 4, 5, 6, 7, 9, and 29. On June 8, 1995, Mr. King evaluated Gaviria pay telephone number 305 221 9671 and found the following violations: 4, 5, 6, 11, and 17. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9731 and found the following violations: 4, 6, 14, 15, 16, 22, and 29. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9467 and found the following violations: 4, 5, 6, 7, 14, 19, 21, 22, and 29. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9433 and found the following violations: 4, 5, 6, 14, 22, and 29. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9087 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 15, 16, 17, 19, 22, and 29. On June 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 861 9041 and found the following violations: 4, 5, 6, 7, 14, 15, 16, 19, 22, 27, and 29. On June 14, 1995, Mr. King evaluated Gaviria pay telephone number 305 685 9345 and found the following violations: 4, 5, 6, 7, 14, 15, 16, 19, 22, 27, and 29. On June 14, 1995, Mr. King evaluated Gaviria pay telephone number 305 685 9342 and found the following violations: 4, 5, 6, 7, 9, 14, 15, and 16. The Commission staff advised Gaviria of the June, 1995 service evaluation results on June 14, 1995 by regular mail (File Nos. TE793.9501, TE793.9502), on July 11, 1995, by certified mail (File Nos. TE793.501, TE793.9502), on July 12, 1995 by regular mail (File No. TE793.9503), on August 4, 1995, by certified mail (File No. TE793.9503), each time requiring a response within 15 days and corrective measures. Gaviria did not respond to the June 14, 1995 and July 12, 1995, letters or to the July 11, 1995 and August 4, 1995 follow-up letters. On August 9, 1995, Commission staff transmitted the June 14, 1995, July 11, 1995, July 12, 1995, and August 4, 1995 letters to Gaviria by facsimile and advised Gaviria that it appeared to be in violation of the Commission's rule to report changes in circumstances. On August 10, 1995, Commission staff advised counsel for Gaviria that the letters had been transmitted to Gaviria by facsimile and that Gaviria had stated that it would respond by August 21, 1995. Additionally, Commission staff advised counsel for Gaviria that they would consider recommending that the Commission initiate a show cause proceeding if Gaviria's response was not satisfactory and timely. On August 14, 1995, Gaviria responded to File No. TE793.9501. The response consisted of 56 admissions, 45 claims of vandalism without substantiation, 14 denials without substantiation, and 4 claims that the line was going to be transferred. Commission staff considered the response unsatisfactory. On August 21, 1995, Gaviria responded to File No. TE793.9503. The response consisted of 3 admissions, 42 denials without substantiation, and 1 claim that the line was going to be transferred. Commission staff considered the response unsatisfactory. On September 6, 1995, Commission staff advised counsel for Gaviria that, according to Southern Bell, the four lines Gaviria claimed were going to be transferred in response to File No. TE793.9501 were still assigned to Gaviria's certificate. Commission staff also advised counsel for Gaviria that Gaviria had misinterpreted the Commission's directory availability rule, that it had erroneously responded to the Commission's directory access rule, and that telephone number 305 751 9087 did not have required signage. Counsel was also advised of the procedure required to obtain certification for STI. In September 1995, Commission evaluator King returned to Miami and evaluated 39 Gaviria pay telephones, 19 of which had been evaluated in June, 1995. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 8523 and found the following violations: 4, 6, and 13. On September 11, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 920 9902 and found the following violations: 2, 6, 7, 9, 11, and 19. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 350 9020 and found the following violations: 4, 6, 8, 9, and 24. On September 14, Mr. King re-evaluated Gaviria pay telephones numbered 305 751 8327, 305 350 9096 and 305 751 8378 and found violations 4 and 6 at each of the telephones. On September 13, Mr. King re-evaluated Gaviria pay telephones numbered 305 751 8248, 305 673 9125, and 305 673 9337 and found violations 4 and 6 at each of the telephones. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 883 8281 and found the following violations: 4, 6, 7, 9, and 13. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 261 9899 and found the following violations: 6, 7, 9, 13, and 19. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 221 9671 and found violations 6 and 7. On September 13, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 9732 and found the following violations: 4, 6, and 9. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 9467 and found the following violations: 4, 6, 9, and 20. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 9433 and found the following violations: 4, 6, and 9. On September 13, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 9087 and found the following violations: 4, 6, and 13. On September 12, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 861 9041 and found the following violations: 4, 6, and 27. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 685 9341 and found the following violations: 6, 7, and 9. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9848 and found the following violations: 4, 6, and 19. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 8994 and found violations 4 and 6. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9763 and found the following violations: 2, 4, 6, and 14. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9860 and found the following violations: 4, 6, 19, and 24. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9992 and found the following violations: 4, 6, and 19. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 573 9320 and found the following violations: 2, 6, 13, 14, 15, 16, 17, and 19. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 867 9725 and found the following violations: 3, 4, 6, 9, 13, 14 and 19. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 868 9167 and found the following violations: 3, 4, 6, 9, 13, 14, 15, and 19. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 868 9727 and found the following violations: 4, 6, 9, 13, 19, and 24. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 868 9823 and found the following violations: 4, 6, 13, 19, and 24. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 868 9357 and found the following violations: 4, 6, 9, 19, and 24. On September 14, 1995, Mr. King evaluated Gaviria pay telephones numbered 305 751 9906 and 305 751 9778 and found the following violations for each telephone: 2, 4, and 6. On September 14, 1995, Mr. King evaluated Gaviria pay telephones numbered 305 751 8906 and 305 573 9876 and found violations 4 and 6 at each telephone. On September 15, 1995, Mr. King evaluated Gaviria pay telephones numbered 305 691 9068 and 305 694 9415 and found violations 4 and 6 at each telephone. On September 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 693 9451 and found violation 4. On September 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 694 9415 and found the following violations: 4, 6, 9, 13, and 24. On September 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 883 9851 and found the following violations: 2, 6, 7, and 9. Commission staff advised Gaviria of the September 1995 service results on September 20, 1995 by regular mail (File Nos. TE793.9504, TE793.9505, TE793.9506, TE793.9507), requiring a response within 15 days and corrective measures. On October 2, 1995, counsel for Gaviria wrote to Commission staff stating that Gaviria had been unable to discover the majority of violations upon inspection and that Gaviria believed that the evaluator was intentionally misstating the condition of the telephones. In his letter to Commission staff, counsel for Gaviria suggested a meeting with the evaluator and his supervisor. It was left for counsel to arrange for the meeting, but he did not do so. In November, 1995 two other Commission evaluators conducted an evaluation of two Gaviria pay telephones, one of which had been evaluated previously. For each of the telephones, the evaluators found violations 4 and 6. Commission staff advised Gaviria of the November, 1995 evaluation results on November 14, 1995, by regular mail (File No. TE793.95080), requiring a response within 15 days and corrective measures. On November 26, 1995, Gaviria timely responded to the November 14, 1995 letter; however his response consisted of denials without substantiation. Commission staff considered the response unsatisfactory. On February 8, 1996, Commission staff filed a recommendation that the Commission order Gaviria to show cause why it should not have its certificate revoked or be fined for violations of Commission rules. On March 20, 1996, the Commission issued Order No. PSC-96-0388-FOF-TC, in which it ordered Gaviria to show cause why it should not be fined or why the Commission should not revoke its certificate for violations of Rules 25-24.512 and 25-24.515, Florida Administrative Code. On April 9, 1996, Gaviria timely filed an answer and petition to initiate formal proceedings before the Commission. In March, 1996, Mr. King returned to Miami to re-evaluate Gaviria pay telephone number 305 861 9041 and found the following violations on March 15, 1996: 4, 6, 14, 15, 26, and 29. Commission staff advised Gaviria of the March, 1996 service evaluation results on March 20, 1996, by regular mail (File No. TE793.9601), requiring a response within 15 days and corrective measures. On March 31, 1996, Gaviria timely responded to the March 20, 1996 letter by making denials without substantiation. Commission staff considered the response unsatisfactory. In October 1996, Commission evaluator Chester Wade went to Miami to re-evaluate 23 of Gaviria's pay telephones. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 633 9237 and found the following violations: 1, 3, 6, 9, 14, and 19. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 751 9433 and found the following violations: 6, 9, 11, and 14. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 691 8180 and found the following violations: 2, 6, and 14. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 868 9357 and found the following violations: 6, 9, 14, and 24. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 751 9467 and found the following violations: 6, 14, and 20. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 854 9087 and found violations 6 and 14. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephones numbered 305 751 9732; 305 751 8327; 305 751 8900; 305 751 9906; 305 751 9778; 305 751 8378; 305 573 9876; 305 673 9125; 305 673 9337; 305 861 9041; 305 868 9823; and 305 868 9727 and found violations 6 and 14 for each of the telephones. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephones numbered 305 854 9684; 305 693 9451; 305 694 9415; and 305 691 9068 and found violations 6 and 14 at each telephone. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 751 9087 and found the following violations: 6, 14, and 20. Commission staff advised Gaviria of the October 1996 service evaluation results on November 6, 1996, by regular mail (File Nos. TE793.9603 and TE793.9604), requiring a response within 15 days and corrective measures. On November 20, 1996, Gaviria timely responded to the letter. The response consisted of 31 denials without substantiation; 23 claims of vandalism without substantiation, 2 admissions, and 1 inaccurate claim of ownership. Commission staff considered the response to be unsatisfactory. Commission Staff performed five separate field service evaluations on 38 Gaviria pay telephones, finding a total of 439 violations. Of that total, twenty percent were repeated violations. Contrary to its assertions, Gaviria placed no orders for telephone directories to Bell South Telecommunications in the period June 6, 1995 to September 15, 1996. Gaviria transferred telephones 305 920 9902; 305 883 8281; 305 262 9899; 305 221 9671; and 305 685 9342 only on September 18, 1995, following the Commission's September 1995 evaluation and even then without correcting the violations as it had claimed. The Commission revokes approximately 90 certificates for public convenience and necessity each year for violations as comparatively minor as a failure to pay regulatory assessment fees or to notify the Commission of a change of location. Therefore, to revoke Gaviria's certificate for its more than 425 violations on 38 telephones over a period of 16 months would be proportionate to the offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Wiberth Gaviria has willfully violated Rule 25-24.515, Florida Administrative Code and that his certificate of public convenience and necessity Certificate No. 3320 be revoked. DONE AND ENTERED this 17th day of January, 1997 in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1997. COPIES FURNISHED: Charles J. Pellegrini, Esquire Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Wlberth Gaviria 6156 Southwest 133rd Place Miami, Florida 33183-5131 Blanca Bayo Director of Records and Recording Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 William D. Tallbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Rob Vandiver, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
Findings Of Fact Petitioner is Mary A. Barber doing business as Data Phone, a sole proprietorship. Respondent is the School Board of Volusia County, a collegial public body which governs the School District of Volusia County, a constitutional district existing under Article IX, Section 4, of the Constitution of Florida. Prior to 1994, Respondent did not obtain telephone cabling services through the competitive bidding process. Instead, Respondent secured these services through a letter agreement with J. P. McCarthy doing business as American Phone Wire and Repair (American Phone), a sole proprietorship. Pursuant to that agreement, American Phone charged a minimum service charge of 45 dollars for the first hour of each service call. In 1993, Respondent's purchasing department noticed that the volume of telephone cabling services warranted competitive bidding. Respondent's telecommunications division and purchasing department initially developed specifications for the award of a contract based on a set of specifications from Pinellas County, Florida. They also consulted with the existing vendor, J. P. McCarthy. The early drafts of the specifications provided for a minimum charge per service call. However, the final specifications did not reference a minimum charge. On September 30, 1994, Respondent issued its Bid Request E-540 for telephone cabling equipment and services. In due course, Respondent awarded a contract to American Phone, with an initial expiration date of June 30, 1996. Section 3.11 of the bid specifications provided that the contract was subject to extension for two additional one-year periods, by mutual agreement of the parties. American Phone fulfilled its contractual obligations to Respondent through the services of J. P. McCarthy and the subcontractors that he engaged including Petitioner. Mr. McCarthy died in December 1995. In January 1996, Petitioner inquired as to Respondent's intentions regarding the extension of the contract, or the invitation of new bids, at the initial expiration of American Phone's contract on June 30, 1996. Respondent informed Petitioner that it would rebid the contract at the end of the initial term of the existing contract. J. P. McCarthy's widow gave Petitioner the first opportunity to purchase American Phone after Mr. McCarthy's death. Petitioner believed that American Phone was not transferable because it was a sole proprietorship. Therefore, she elected not to purchase it. In March 1996, Troy Masters, a former employee of Respondent, purchased the business of American Phone. The question whether American Phone was a sole proprietorship which died with its proprietor and therefore was not subject to purchase is collateral to these proceedings. There is no evidence indicating that American Phone is not currently a viable business entity. On May 10, 1996, Chester Rodriguez terminated his employment with Respondent as a computer technician. That same day he became a partner in American Phone, consummating prior negotiations with Troy Masters. Also on May 10, 1996, Respondent issued its Bid Request 2E-625 for telephone cabling equipment and services. Respondent sent Invitations to Bid to approximately 47 potential vendors including Petitioner. The general conditions of the bid specifications provided that "the Board may accept or reject any or all bids or parts of bids and may waive formalities, technicalities or irregularities. The judgment of the Board on such matters shall be final." Inter alia, the specifications provided: CONTRACTOR QUALIFICATIONS Contractor shall have a minimum of four (4) qualified technicians available to handle the Board's needs. Contractor must have someone on staff who is an active member of Building Industry Consulting Service International, Inc. (BICSI). This staff member must be available for implementation in the design and installation of cabling as required by the Board. Membership and registration certificate must accompany the bid. Contractor must have a minimum of five (5) years Bell System or equivalent experience. On June 4, 1996, at the appointed hour of 2 p.m., Olga Buckley publicly opened the sealed bids. Ms. Buckley is a buyer in Respondent's purchasing department. She opened the bids in alphabetical order according to the identity of the bidder as disclosed on the outside of the sealed bid envelope. Sealed bids with no identification were placed at the end of the stack. Twenty-two of the sealed bids contained statements of "no bid." Ms. Buckley checked the other five bids for conformity to a bid checklist which Respondent had included in the specifications. Three of the five submitted bids did not contain all of the required items on the bid checklist. The two remaining complete bids belonged to Petitioner and American Phone. Each of these bids contained the names and resumes of at least four technicians which the bidder would employ or subcontract in order to perform the Respondent's assigned work. American Phone's bid quoted twenty-five dollars ($25) per hour of technician time and a twenty (20) percent discount off the supply list. Data Phone's bid quoted twenty-eight dollars ($28) per hour of technician time. After opening the bids, Ms. Buckley conferred with Robert McDonald, manager of Respondent's telecommunications division. They determined that American Phone had submitted the lowest acceptable bid. Support staff prepared the bid tabulation and recommended action in accordance with Ms. Buckley's and Mr. MacDonald's evaluation. Next Linda Romine, Respondent's senior buyer, reviewed the bid responses and the bid tabulation for correctness. After Ms. Romine completed her review, the tabulation was posted on June 5, 1996 at approximately 3:56 p.m. On June 7, 1996, Petitioner submitted a Notice of Protest. That same day Petitioner discussed the substance of her protest with Tom Sims, Respondent's Purchasing Director. First, Petitioner claimed that the apparent low bidder, American Phone, had previously engaged in the practice of charging an initial forty-five dollar ($45) service charge for each service call, in addition to the hourly rate for technician time. As a result of this service charge, Petitioner claimed that the computation of the apparent low bid, based solely on the hourly rate, was inaccurate because American Phone intended to continue invoicing the service charge. Second, Petitioner indicated her belief that the bid specification language in Section 2.0, pertaining to contractor qualifications, required the contractor personally to have a minimum of five (5) years Bell System or equivalent experience. She voiced her opinion that neither American Phone, as the contractor, nor its principals had the requisite experience. Third, Petitioner expressed her view that the requirement for a contractor to belong to the BICSI was meaningless. She thought Respondent included this requirement to exclude all venders except J. P. McCarthy. Mr. Sims was unaware that American Phone had ever charged a forty-five dollar ($45) service charge. Between June 7, 1996 and June 10, 1996, Mr. Sims and his staff examined approximately 1000 invoices that American Phone submitted to Respondent under its previous 1994 contract. The purpose of this examination was to ascertain whether American Phone had charged a minimum service charge of forty-five dollars ($45) for each service call under the contract. The examination confirmed that American Phone had charged a minimum service charge under its 1994 contract, consistent with its practice under the previous letter agreement, even though the 1994 contract did not authorize a minimum service charge. Mr. Sims then contacted Chester Rodriguez of American to inquire whether American Phone intended to charge forty-five dollars ($45) for each service call in addition to the hourly rate shown in its 1996 bid. As a result of his investigation, Mr. Sims determined that American Phone never intended its 1996 bid to include any minimum charge for service calls. Mr. Sims determined further that, if the average number and length of service calls under the proposed 1996 contract was distributed similarly to the average number and length of calls under the existing contract, American Phone's bid, with a forty-five dollar ($45) service charge for the first hour of technician time, would still be approximately 8,000 dollars lower than the bid of Petitioner. The greater weight of the evidence indicates that the forty-five dollar ($45) service charge formerly billed by American Phone was not in addition to the hourly rate for the first hour of technician time. Examination of American Phone's invoices from the preceding years reveals that approximately 12 percent of the invoices showed a minimum service charge but no hourly charges for the first hour. Eighty-eight percent of the service calls were more than one hour. If vendors base their bid on a minimum service charge for the first hour of technician time, they will in all likelihood charge a lower rate for each subsequent hour of the service call. Revision of the bid specifications in this case to allow such bids would be to Respondent's advantage. It also would lead to a greater number of bidders. Mr. McDonald had never seen the 1994 contract. He did not know that the 1994 contract did not authorize the minimum service charge. After his investigation, Mr. Sims advised Mr. McDonald that American Phone's 1994 contract did not authorize any minimum charge for service calls. Mr. Sims also informed Mr. Rodriguez that Respondent would not approve further invoices for such minimum charges under the existing contract. Any action that Respondent may take to correct the overpayment of invoices that American Phone submitted under the existing contract is not at issue here. When Respondent developed the bid specifications concerning contractor qualifications, it construed the requirement of five years' Bell System or equivalent experience as applicable to the subcontractors or employees of the named contractor. During his investigation of issues raised in Petitioner's protest, Mr. Sims contacted several vendors by telephone seeking their interpretation of the language. Every vendor other than Petitioner construed the language similarly to Respondent. During these conversations, Mr. Sims inquired whether the vendors thought the requirement for a contractor to be a member of BICSI was meaningful. The answers to this question were mixed. Mr. Sims got mixed answers when he asked the vendors how they would apply a minimum service charge and handle overtime hours. Respondent's staff posted a revised "tabulation" on June 11, 1996 showing the same computations as the initial tabulation but with the notation that there was "no recommendation" among the vendors. The revised tabulation also stated that "[d]ue to clarification of specifications a re-bid will be submitted." On June 12, 1996 Petitioner (through counsel) filed a Notice of Protest of the revised tabulation. On June 13, 1996 Respondent held a pre-bid workshop with prospective vendors, including Petitioner, for the purpose of discussing revisions to the specifications following the decision to reject all bids under Bid Request 2E- 625B. On June 21, Petitioner filed, pro se, a formal protest asserting that (1) if American Phone bid included an undisclosed service charge of 45 ($45) dollars per call, her bid was actually the lowest; (2) American Phone did not have five years' Bell System or equivalent experience; (3) the principals of American Phone failed to show a minimum of three accounts serviced within the previous three years because they had only been in business since March 1996; and (4) the principals of American Phone were barred from any contractual relationship with Respondent by virtue of Section 112.3185(4), Florida Statutes. On June 24, 1996, Petitioner filed, through counsel, a second formal protest. The second formal protest challenged the initial tabulation showing that American Phone was apparent low bidder, and the requisite experience of American Phone under the specifications, but omitted the remaining complaints of Petitioner's pro se formal protest of June 21, 1996. On June 25, 1996 Respondent approved the recommendation of its staff to reject all bids with respect to Bid Request 2E-625, and to invite new bids under Bid Request 2E-625B, after revising the specifications. Mr. Rodriguez served in the United States Air Force from 1982 to 1988. While he was in the armed services, Mr. Rodriguez obtained telephone communications skills and training in equipment repair. From 1988 to May 1996, he worked for Respondent as a computer technician. Mr. Rodriguez also worked on weekends, moonlighting, for American Phone for approximately a year and a half. He had five years of Bell System equivalent experience. Although Mr. Rodriguez previously worked for Respondent, he was never employed in the Telecommunications Division which was the procuring division for the subject bid. He was never the supervisor nor under the supervision of Robert McDonald. Mr. McDonald never made a promise to Mr. Rodriguez or gave him any reason to expect that American Phone would receive a new or renewal contract from Respondent. Mr. Rodriguez had no expectation that Mr. McDonald would advocate the renewal of the existing contract with American Phone. Before Mr. Rodriguez resigned his position with Respondent, he informed his superiors that he intended to acquire an interest in American Phone. He also told them that American Phone would bid on a contract with Respondent. Mr. Rodriguez's superiors informed him that he could not simultaneously be an employee of the Respondent and a vendor of services to the Respondent. Troy Masters and Chester Rodriguez were employees of the Respondent until March and May, respectively, of 1996. They worked in the data processing under the supervision of the Manager of Technical Services in the Management of Information Services Division, Department of Central Services. Robert McDonald worked in the Telecommunications Division of the Department of Central Services. Petitioner presented no evidence that American Phone participated in competitive bidding for contractual services which were within the responsibility of Masters or Rodriguez while they were employees of Respondent.
Recommendation Based upon the foregoing findings and conclusions, it is recommended that the protest of Petitioner in this matter be dismissed. DONE and ENTERED this 11th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1996. COPIES FURNISHED: C. Allen Watts, Esquire Cobb, Cole and Bell, P.A. Post Office Box 2491 Daytona Beach, Florida 32115-2491 James R. Tanner, Esquire 339 South Ridgewood Avenue Daytona Beach, Florida 32114 Joan Koval, Superintendent School Board of Volusia County Post Office Box 2118 Deland, Florida 32721-2118 Frank T. Brogan, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Should certain outdoor advertising signs owned by Respondent, Lamar East Florida (Lamar) be removed as a result of notices of violations brought by Petitioner, Department of Transportation (the Department) against Lamar?
Findings Of Fact Lamar is licensed pursuant to Chapter 479, Florida Statutes, to conduct the business of outdoor advertising. The Department regulates the outdoor advertising business in accordance with that law. In 1964, outdoor advertising signs that are the subject of the proceeding were constructed along US Highway 1 in Volusia County, Florida. Subsequently, in 1971, outdoor advertising signs which are the subject of the proceeding were constructed along Interstate 95 in Volusia County, Florida. The signs in both places are subject to permits issued by the Department to Lamar. The signs were legally erected but became nonconforming based upon their spacing in relation to other permitted outdoor advertising signs. The Lamar signs and their spacing are described as follows: Permit No. BN674-55, East of Interstate 95, 3.183 miles north of NEB790079 Hull Road is 881 feet from a permitted sign to the north. Permit No. BJ689-55, East of Interstate 95, 2.588 miles north of NEB790079 Hull Road is 343 feet from a permitted sign to the north. Permit No. BN681-55, East of US Highway 1, 0.088 miles north of Pine Tree Drive is 216 feet from a sign under Permit No. BU855. Permit No. BN682-55, East of US Highway 1, 0.027 miles north of Hull Road is within 332 feet of a permitted sign to the north. Permit No. BV232-55, East of US Highway 1, 0.0129 miles north of Pine Tree Drive is 216 feet from a permitted sign to the north. Each of the Lamar signs is within 660 feet of the first named highway or interstate, within Volusia County, Florida. Lamar owns and maintains the outdoor advertising signs that have been identified. On June 19, 1998, under dry weather conditions, a series of lightening strikes started a wildfire in a remote swampy area. Before the fire ended in July of 1998 its dimensions were extensive. The wildfire burned in Volusia and Flagler counties, Florida, west of Daytona Beach and Ormond Beach, Florida, and extending into the city of Ormond Beach. Eventually, it consumed the Lamar signs that have been described to the extent that the up-right wooden supports of each of the signs were substantially burned. This destruction took place on July 1, 1998. The degree of destruction was within the definition of "destroyed" set out in Rule 14- 10.007(1)(d), Florida Administrative Code. Before their destruction the signs had been lawfully permitted by the Department. Interstate 95 and US Highway 1 had been closed to the public before the Lamar signs were "destroyed." The attempt by Lamar to gain access to the outdoor advertising signs was not successful because of the road closures by government authorities. Following their destruction, Lamar re-erected the structures by reinstalling the signs at the same locations using substantially the same type of materials as had been previously found in the structures being replaced. None of the materials used to re-erect the signs were part of the sign structures immediately before the destruction of the original signs by the wildfire. When re-erected the signs were the same size, shape, and height of the destroyed signs. Lamar does not own the property where the signs are located. Lamar operates pursuant to agreements with property owners by which Lamar has the right to maintain the signs. Upon the expiration or termination of the agreements with the property owners, Lamar may remove all of its sign materials from the properties and absent an agreement no longer maintain the signs. Lamar has no other business interest in the properties where the signs are located. The purpose of the outdoor advertising signs is to lease advertising space to third parties for advertising purposes which generates income to Lamar. Each outdoor advertising sign in question provides that income. The suppression effort directed to the fire was limited due to the remoteness of the swampy area in which the fire originated and a paucity of manpower and equipment. As a consequence, the firefighting effort did not begin in earnest until June 20 or 21, 1998. The fire was combated through efforts of the Florida Department of Agriculture, Division of Forestry and other national, state, and local firefighting organizations. The fuel for the fire, that is, bushes and trees, was dry. The weather conditions were highlighted by low relative humidity and a very high dispersion index. The smoke from the fire rose in the atmosphere and carried its embers from the west to the east. The fire came out of the Hull Cypress Swamp and the embers picked up by the wind crossed fire control lines and continued to spread to the east. Eventually, the two main fingers of the fire burned together on July 2, 1998. Before it was suppressed the fire, known as the Rodeo Road Fire, would consume 61,500 acres. The progress of the fire is depicted in Petitioner's Exhibit No. 1, a map of the area in question, to include the area in which the subject signs were located. Petitioner's Exhibit No. 3 portrays the location of the signs more precisely. More specifically, the conditions in the swamp were extremely dry at the time the fire commenced as evidenced by the available dry fuel load in the swamp, which fuel load would normally be wet. Under wet conditions the fire would either not have burned or would have meandered. Given the dry conditions in the swamp in June 1998, there was a lot more fuel available to burn. East of the swamp the land that was burned was constituted of pastures, range land, and forest lands. Some areas had been subjected to prescribed burning to control available fuel loads in an incidence of wildfire but other areas had not been subjected to prescribed burning before the wildfire. Had property owners in the area affected by the wildfire conducted prescribed burning before that event it would have reduced the fuel load available for incineration. In some places in the advance of the wildfire the fuel loads were heavy, in other places less so, in that the property was constituted of pastures. In addressing the fire, the firefighters' priorities, in turn, included their safety; the safety of the public; the protection of property, to include structures; and finally the protection of resources such as timberland. By their efforts in addressing this incident the firefighters managed to save homes and businesses by creating defensible space around those structures against the on-set of the fire. The area of defensible space necessary is at least 30 feet, which reduces the chance of direct flame impact on the structure. Another technique that was employed to address the consequences of the wildfire was backfiring or imposition of the "black line concept." This is a nationally recognized firefighting technique. It is used when a fire is burning in an area that is inaccessible or has a potential to overrun a fire control line in a setting in which unburned fuel exists between the main fire and the control line. The unburned material is then deliberately burned before the main fire reaches that area to protect the control line from the main fire. The backfire is best employed when the weather conditions are conducive to its use, including wind direction and levels of humidity. During the time that the Rodeo Road Fire took place the use of backfires was not especially successful due to the dryness of the fuels. In the course of the Rodeo Road Fire, Georgia Pacific now known as the Timber Company, used a backfire to protect its property against the northward and eastward progress of the wildfire. The backfire was lit on June 28, 1999. The backfire by the Timber Company did not control the wildfire. It was successful on the west flank of the wildfire but unavailing on the east flank where the backfire by the Timber Company intersected the wildfire and the wildfire continued its eastward progress which had already begun. The setting of the backfire by the Temper Company was an appropriate tactic. Its outcome was inconsequential when considering the progress of the wildfire and its eventual destruction of the signs. Nor is the decision of a California fire crew to use a backfire to protect itself and its equipment found to have meaningful significance in promoting the forward progress of the wildfire to the east where the wildfire would destroy the signs. The backfire lit by the fire crew occurred on July 1, 1998. Backfiring to secure safety is an approved tactic for firefighters in making an independent judgment to protect their lives.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered which revokes the sign permits that have been described and requires the removal of those signs within 30 days of the entry of the final order. DONE AND ENTERED this 21st day of October, 1999, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings 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 this 21st day of October, 1999. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers, Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether the Respondent, as Mayor of the Town of Eatonville (Town), violated Section 112.313(6), Florida Statutes, (1) by using the Town's postage machine to backdate envelopes containing voter registration forms in an attempt to register voters after the official deadline for registration had expired; (2) by preparing or having another person prepare a fraudulent affidavit concerning the postage machine matter and directing a Town employee to forge the signature of another Town employee and to falsely notarize the document; and (3) if so, what penalty is appropriate.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Anthony Grant, was Mayor of the Town of Eatonville, Florida. He was elected to this office in or about November 1994, and has served in this capacity continuously since that time. As the Mayor of Eatonville, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees (the Code of Ethics). Pursuant to Section 97.055, Florida Statutes, February 3, 1995, was the deadline for the receipt of voter registration forms in the Office of the Supervisor of Elections for those registrants to be eligible to vote in the March 4, 1995, election of Eatonville Town Council members. Registration forms were deemed received by the deadline if the postmark affixed by the United States Postal Service was February 3, 1995, or a date prior thereto. At all times relevant to this proceeding, Louise Franklin was employed as a clerk by the Town of Eatonville. In that position, Ms Franklin was responsible for operating and setting the date on the Town's postage meter machine. The duties associated with the postage meter machine were also performed by one other clerk who worked with Ms. Franklin. Typically, the date on the machine was set either the morning of that particular day or at or near the close of business the preceding business day. On Monday morning, February 6, 1995, Respondent and his secretary, Ms. Tammy Stafford, went to the office where Ms. Franklin worked to stamp six voter registration forms that were to be mailed to the Supervisor of Elections Office. The Town of Eatonville had been involved in a voter registration campaign and these registration forms had been brought to Respondent's office that morning by a local citizen. According to Respondent, after he and his secretary stamped two or three of the envelopes containing the voter registration forms, his secretary noticed that the date imprinted the envelopes was February 3, 1995, rather than February 6, 1995. Respondent further testified that after the error was discovered, he asked Ms. Franklin to show them how to change the date on the machine. Ms. Franklin showed Respondent how to set the date on the postage meter machine. At the time of Respondent's request for assistance with the postage meter machine, the Town had only recently acquired the machine, and it had been used by Ms. Franklin and the other clerk for only a short period of time. Prior to February 1995, Respondent had not used the postage meter machine. Ms. Franklin complied with Respondent's request for instructions on how to use the postage meter machine. Ms. Franklin went into the room in which the machine was located and showed the Respondent and his secretary how to use it. Ms. Franklin's instruction to the Respondent and Ms. Stafford included an explanation and demonstration of how to change the date on the postage meter machine. During the course of her explanation to the Respondent and Ms. Stafford, Ms. Franklin inserted a blank envelope in the postage meter machine to show how the machine worked. Thereafter, Ms. Franklin left Respondent and his secretary in the room where the postage meter machine was located. Ms. Franklin was unsure if the Mayor and/or Ms. Stafford stamped any of the envelopes before the Respondent came and asked for her assistance in using the postage meter machine. Ms. Franklin did not see Respondent or Ms. Stafford use the postage meter machine. Nor did Ms. Franklin actually see the date that had been imprinted on the six envelopes by the postage meter machine. However, Ms. Franklin assumed that, after she left the immediate area where the postage meter machine was located, Respondent and Ms. Stafford used the machine to stamp the envelopes that were addressed to the Supervisor of Elections Office. Later on the morning of February 6, 1995, some time after Respondent and Ms. Stafford left the area where the postage meter machine was located, Ms. Franklin noticed that the date on the postage meter machine was set to February 3, 1995. Ms. Franklin believed that during the time that she was training Respondent and Ms. Stafford on how to use the postage meter machine, the machine was set for February 6, 1995. Although Ms. Franklin had no independent or clear recollection that the postage meter machine was set for February 6, 1994, she testified at hearing that she "probably would have noticed if the date was incorrect." Ms. Franklin never observed Respondent or Ms. Stafford backdate the postage meter machine. Neither did Ms. Franklin see anyone go into the room in which the postage meter machine was located after Respondent and his secretary left that room. On the afternoon of February 6, 1995, Ms. Franklin went to Betty Golson, Acting Town Clerk, and told her that Respondent and his secretary had used the postage meter machine to stamp voter registration forms and that she had given them instructions on how to use the machine. Ms. Golson was not in or near Ms. Franklin's office or the room where the postage meter was located on the morning of February 6, 1995, when Respondent and his secretary were there. However, based on Ms. Franklin's comments, Ms. Golson felt compelled to report her perception of the incident to Betty Carter, the Orange County Supervisor of Elections, in a February 7, 1995, memorandum. The memorandum stated: [Ms. Franklin] witnessed the Mayor's secretary sending a voter's registration form through the postage meter. She also said that she witnessed the Mayor sending through the postage meter at least three (3) voter's registration forms. [Ms. Franklin] further stated that both the Mayor and his secretary asked for directions on how to change the meter's date to which she did give them both instructions on the procedures. After Respondent learned about Ms. Golson's memorandum to the Supervision of Elections, he and Mr. Harley met with Ms. Franklin. During the meeting, Respondent asked Ms. Franklin to prepare a written statement describing what occurred on February 6, 1995, when he and his secretary were in her office. However, Respondent did not tell or suggest to Ms. Franklin what she should include in the statement. Pursuant to Respondent's request, on February 8, 1995, Ms. Franklin typed and signed a statement in which she recounted the events of February 6, 1995, relative to the postage meter machine. Ms. Franklin's statement read: This is to verify that I, Louise Franklin, gave instructions to staff how to change the postage meter machine after they had sent a few pieces of mail through which reflected the date February 3, 1995. After Respondent read Ms. Franklin's February 8, 1995, statement, it was his opinion that the statement was vague. Based on this opinion, Respondent asked Ms. Franklin to write a more precise, detailed statement describing the events of February 6, 1995. In making this second request, Respondent did not tell Ms. Franklin what the statement should say. Ms. Franklin complied with Respondent's request and, on February 9, 1995, she typed and signed a second statement. The second statement provided more details and was more precise than the first statement. For example, in this statement, rather than stating that she instructed "staff" on how to use the postage meter machine, Ms. Franklin specifically noted that she provided the instruction to "the Mayor and his secretary." Furthermore, in her second statement, Ms. Franklin included the date on which the instruction occurred, a detail that was absent from Ms. Franklin's first statement. Also, in the second written statement, Ms. Franklin wrote: I demonstrated for them step-by-step, which consisted of changing the dates, months, year, etc., I even carried a blank envelope through the machine as an example. They were able to send a few pieces of mail throuth [sic] themselves. The two statements prepared and signed by Ms. Franklin in February 1995, truthfully and accurately describe the postage meter incident that occurred on February 6, 1995, and do not conflict with Respondent's version of the incident. Ms. Franklin testified that she did not know whether Respondent or Ms. Stafford ever changed the date on the postage meter machine. Moreover, Ms. Franklin acknowledged that she did not know what date was on the postage meter machine when the Respondent and his secretary finished using the machine on February 6, 1995. Finally, notwithstanding Ms. Golson's memorandum and Ms. Franklin's second statement, both of which indicated that Respondent and his secretary used the postage meter machine to stamp mail or voter registration forms, Ms. Franklin testified that she did not know whether the Respondent and/or Ms. Stafford sent any mail through the postage mater machine. After Respondent received Ms. Franklin's second statement, Respondent told Mr. Harley that he was not pleased with the affidavit and wanted it redone. Respondent then met with Mr. Harley and discussed what should be included in the affidavit. Moreover, just before or during the meeting, Respondent directed Mr. Harley "to take care of it today." Respondent's intent was to accurately and completely memorialize the incident of February 6, 1995. Catherine Williams, a clerk with the Town of Eatonville, worked in the area immediately outside the office where Respondent and Mr. Harley met to discuss the affidavit. Prior to Respondent's and Mr. Harley's entering the office to begin their meeting, Ms. Williams overheard Respondent tell Mr. Harley that he was not pleased with Ms. Franklin's second statement and that he wanted it redone. After the meeting between Respondent and Mr. Harley was over, Respondent left the office and exited the building. After Respondent left the office, Mr. Harley approached Ms. Williams, gave her a handwritten copy of an affidavit, and told her to type it. The affidavit that Mr. Harley gave to Ms. Williams was in Mr. Harley's handwriting. Once Ms. Williams typed the affidavit, Mr. Harley immediately directed her to sign Ms. Franklin's name on the affidavit, and to notarize the affidavit. In compliance with Mr. Harley's directive, Ms. Williams signed Ms. Franklin's name on the affidavit and, also, notarized the affidavit. Notwithstanding Mr. Harley's testimony to the contrary. Respondent never instructed or told Mr. Harley to direct Ms. Williams to prepare, forge or notarize the affidavit. Respondent did, in fact, instruct Mr. Harley to have a more concise affidavit prepared. However, Respondent never instructed Mr. Harley to have the affidavit prepared in a fraudulent manner. Although Respondent merely told Mr. Harley that he wanted the affidavit redone and directed Mr. Harley "to take care of it today," Mr. Harley testified that he understood this to be an order that he direct Ms. Williams to forge Ms. Franklin's signature on the affidavit and then to falsely notarize that signature. Mr. Harley's interpretation of Respondent's directive was both unreasonable and inaccurate, and his testimony in that regard lacks credibility. Mr. Harley never presented the affidavit referred to in paragraph 24 above to Ms. Franklin for her review and signature. Although Ms. Franklin never read or signed the document, the affidavit purported to be that of Louise Franklin. Furthermore, it was undisputed that Mr. Harley never gave a copy of the forged affidavit to Respondent. The affidavit written by Mr. Harley and typed, signed, and notarized by Ms. Williams was not seen or read by Respondent until December 1996, during an investigation being conducted pursuant to a complaint filed by Mr. Harley. On February 9, 1995, when Respondent and Mr. Harley met regarding the affidavit, Mr. Harley was a disgruntled employee. By his own admission, Mr. Harley was discontent while working in Respondent's administration. This was due, at least in part, to Mr. Harley's philosophical differences with Respondent over Respondent's management style. As early as December 1994, Mr. Harley approached Respondent about Harley's desire to sever his employment relationship with the Town of Eatonville. In the context of the discussion, the issue of Mr. Harley's receiving severance pay was raised. Respondent told Mr. Harley that pursuant to Harley's employment contract, he would be entitled to severance pay if he were fired, but not if he resigned. The issue of Mr. Harley's entitlement to severance pay had not yet been resolved on February 9, 1995. Mr. Harley left his employment with the Town of Eatonville in March 1996, as part of a negotiated resignation agreement. As a result of his resignation, Mr. Harley suffered a financial loss in that he did not receive severance pay when he resigned. Mr. Harley eventually received $9,000.00 in severance pay as a settlement in a lawsuit he filed against the Town of Eatonville in March 1996, after he resigned. Also, shortly after resigning from the Town of Eatonville, Mr. Harley filed a complaint against the Town with the State Attorney's Office in which he alleged approximately fifty-four instances of wrongdoing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that the Respondent, Anthony Grant, did not violate Section 112.313(6), Florida Statutes. DONE AND ENTERED this 29th day of October, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1998. COPIES FURNISHED: Eric S. Scott Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Gary R. Dorst, Esquire Post Office Box 947509 Maitland, Florida 32794-7509 Bonnie Williams, Executive Director Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie Stillman Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Each of the Petitioners and the Intervenor in these consolidated cases are duly certificated telephone companies operating in the State of Florida subject to the jurisdiction of the Florida Public Service Commission under Chapter 364, Florida Statutes. These telephone companies, and others operating in the State of Florida, provide for the division of intrastate toll revenues through bilateral written agreements ("toll settlement agreements") between each of these companies and Southern Bell. There are apparently 16 of these separate bilateral toll settlement agreements between Southern Bell and other telephone companies operating in the State of Florida. Each of these agreements is on file with the Public Service Commission as required by law. Under these agreements each of the small telephone companies periodically report to Southern Bell their costs an revenues associated with intrastate long distance calls. Southern Bell then determines each company's share of the revenue pool generated pursuant to the intrastate toll settlement agreements, and effects the distribution of funds by sending a check to some companies and a bill to others. The amount credited or charged to individual telephone companies by Southern Bell is based at least in part on the "rate of return" language contained in each company's agreement with Southern Bell. Each toll settlement agreement contained in the record in this proceeding contains the following identical "rite of return" provision: Rate of Return--the rate of return to be applied to the intrastate average investment base will be the intrastate rate of return achieved by the Bell Company for the study period calculated in a manner consistent with the investment and cost items included in [the individual telephone company's] cost study. On May 21, 1982, the Public Service Commission issued its Order No. 10813 entitled "Notice of Proposed Agency Action" which, in part, recited the aforementioned faces and, further, under the heading "Policy Determination" set, forth the following: Upon review of these agreements, the Commission concludes that the Basis of Settlement renders these agreements to the public interest because it creates an inequitable system of cross-subsidization among local subscribers of the telephone companies. Rates are set prospectively for telephone companies based on expenses and revenues experienced during an approved test year. Sufficient revenues must be generated from services to allow the utility to achieve on its investment the rate of return authorized in the rate case. However, the settlement agreement distributes the tolls on the basis of a rate of return other than the company's authorized rate of return, i.e. on Southern Bell's achieved rate of return. As a result a company automatically will be either overearning or underearning with respect to toll revenues, depending on whether its authorized rate of return is lesser or greater than Southern Bell's achieved rate of return. If the company is overearning on the toll revenues, then revenues generated by local services will be reduced a corresponding amount. But if the company is underearning on the toll revenues, then revenues generated by local service will have to be increased to make up the difference. Because the toll revenues being distributed to the local companies are from a common pool, ratepayers of these 'underearning' companies are subsidizing the ratepayers of the 'overearning' companies. This is inequitable and contrary to the basic thrust of ratesetting as embodied in Chapter 364. Therefore we conclude that the current basis of distributing toll revenues renders the agreements detrimental to the public interest. Thus, the Commission hereby gives notice of its proposal to disapprove all settlement agreements as detrimental to the public interest that they provide for cross-subsidization among ratepayers. To not be detrimental to the public interest, toll settlement agreements must provide for settlements that do not create such cross-subsidization among the local ratepayers of the various companies. To avoid such cross-subsidization, the toll settlement agreements must compensate each company for its cost of providing intrastate toll service. This cost of service includes the cost of capital, as well as operating expenses, taxes, and investments. With respect to the equity component of the cost of capital, the return on equity must recognize the financial leverage of the company. If this proposed agency action is not protested as provided for in Chapter 25-22, F.A.C., and as explained below, the Commission will issue an order constituting final agency action disapproving all toll settlement agreements effective 30 days from the date of the order. This order will in addition direct the companies to modify the agreements and to submit the modified agreements to the Commission for review within that 30 days. The modification of the settlement agreement will result in the loss of revenues to some companies, and the gain of revenues to financial impact of this redistribution to ensure that companies do not overearn or underearn as a result of this action. This proposed agency action addresses only the detrimental effect of using the Bell Company's achieved rate of return, and no other aspects of the settlement agreements. (Emphasis added.) On May 28, 1982, the Public Service Commission caused to be published in the Florida Administrative Weekly the following notice: NOTICE is hereby given that pursuant to Section 364.07, Florida Statutes, the Public Service Commission has issued proposed agency action to disapprove all existing agreements for the division of intrastate toll revenues, on the ground that they are detrimental to the public interest because they provide for cross-subsidization among ratepayers. If by June 11, 1982, the Commission does not receive from an affected person a petition on proposed agency action, as provided in Chapter 25-22, FAC, then the proposed agency action will become final agency action. A copy of the proposed agency action may be obtained from the Commission Clerk, 101 East Gaines Street, Tallahassee, Florida 32301. It is undisputed that the Public Service Commission did not prepare an economic impact statement in conjunction with the issuance of its "Notice of Proposed Agency Action", the Commission otherwise follow the procedural requirements contained in Section 120.54, Florida Statutes, concerning the adoption of a "rule." By Final Order dated April 22, 1982, in Division of Administrative Hearings' Case Nos. 81-2201R and 81-2202R, Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, declared a rule proposed by the Public Service Commission pursuant to Section 364.07, Florida Statutes, invalid on the grounds that it failed to contain any finding that toll settlement agreements were detrimental to the public interest, and further, that the proposed rule invalidly attempted to prescribe the mechanics to be followed by telephone companies in dividing monies contained in the intrastate toll revenue pool.
The Issue Whether the Petitioner, Gina M. Hunton, filed her request for a formal administrative hearing within the time required by Rule 22T-9.008(1), Florida Administrative Code.
Findings Of Fact Pleadings. The Petitioner, Gina M. Hunton, filed a Charge of Discrimination against Southern Bell Telephone and Telegraph Company (hereinafter referred to as "Southern Bell"), with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"), alleging that Southern Bell had discriminated against her on the basis of sex. On October 11, 1991, the Commission entered a Notice of Determination: No Cause, concluding that there was no reasonable cause to believe that Southern Bell had committed an unlawful employment practice against Ms. Hunton. On January 27, 1992, the Commission entered a Notice of Redetermination: No Cause, (hereinafter referred to as the "Notice") again concluding that there was no reasonable cause to believe that Southern Bell had committed an unlawful employment practice against Ms. Hunton. In the Notice Ms. Hunton was informed of the following: The parties are hereby advised that the Complainant may request that a formal, post- investigative proceeding be conducted. Any Request for Hearing/Petition for Relief must be filed within 30 days of the date of this Notice and should be in compliance with the provisions of Rule 22T-9.008 and Chapter 22T-8, Florida Administrative Code. . . . On June 15, 1992, Southern Bell filed a Motion to Dismiss Ms. Hunton's Petition because it had not been timely filed. No response to the motion was filed by Ms. Hunton on or before June 29, 1992. On July 1, 1992, an Order Granting Motion to Dismiss, Cancelling Final Hearing and Establishing Deadlines was entered by the undersigned. The deadlines established in the Order were July 13, 1992, for the filing of proposed recommended orders and August 3, 1992, for the entry of a recommended order of dismissal in this case. On July 20, 1992, more than two months after the motion to dismiss was filed, and after Southern Bell had filed a proposed recommended order, Ms. Hunton filed a Response to Motion to Dismiss. On July 29, 1992, an Order to Show Cause was entered by the undersigned. In the Order to Show Cause, Southern Bell was given an opportunity to show cause why the motion to dismiss should not be denied in light of Ms. Hunton's explanation of why she had not filed her request for a formal administrative hearing timely. On August 10, 1992, Southern Bell filed a Renewed Motion to Dismiss and Response to Order to Show Cause. Southern Bell argued in the response that the doctrine of equitable tolling should not be applied in this case. No response to the renewed motion to dismiss was filed by Ms. Hunton. On August 17, 1992, a Second Order of Dismissal was entered. In the Second Order the parties were informed that the undersigned intended to grant the renewed motion to dismiss and recommend dismissal of this matter. On September 1, 1992, Ms. Hunton filed a Supplement to Response to Motion to Dismiss. For the first time Ms. Hunton alleged certain facts and gave a further explanation for why she had not timely filed her request for formal hearing in this matter. On September 8, 1992, Southern Bell filed Southern Bell's Reply to the Petitioner's Supplement to Response to Motion to Dismiss. Ms. Hunton's Failure to Timely File Her Petition. Thirty days from the date of the Notice, January 27, 1992, was Wednesday, February 26, 1992. Although Ms. Hunton was referred by the Commission in the Notice to the appropriate rule governing the time for filing a petition for relief, she was not specifically told that to "file" a petition meant that it had to be received by the Commission. Based upon Ms. Hunton's first response to Southern Bell's motion to dismiss, Ms. Hunton believed that she was only required to "serve" or mail her request for hearing within 30 days of the date of the Notice. According to her first response, Ms. Hunton also believed that "30 days" meant "one month". Ms. Hunton further believed that "one month" meant that she had until the same date (the 27th) of the next month (February) that the Notice was dated to mail her petition for relief. Based upon these conclusions, Ms. Hunton assumed that she had until February 27, 1992 to mail her petition for relief: I received a NOTICE OF REDETERMINATION: NO CAUSE on January 30, 1992 which was dated January 27, 1992 and postmarked (mailed) January 28, 1992 (Attachment A). The Notice of Redetermination states 'any request for Hearing/Petition for relief must be filed within 30 days of the date of Notice', my interpretation being one month from January 27, 1992, specifically February 27, 1992. [Emphasis added]. Even though it may have been reasonable for Ms. Hunton to assume that "filed" meant to "mail" her request for hearing, her interpretation of the time within which she was required to "mail" her response was not reasonable. The Notice informed Ms. Hunton that she had "30 days" to act. Even an unrepresented party should understand that "30 days" means just that. By counting 30 days from January 27, 1992, on a calendar, Ms. Hunton should have realized that she had to act no later than February 26, 1992. It was unreasonable for Ms. Hunton to interpret the terms "30 days" to mean a month, and that a month from January 27, 1992, meant February 27, 1992. On Thursday, February 27, 1992, Ms. Hunton spoke to Mr. Hardin King, an employee of the Commission (incorrectly identified as an employee of the Federal Commission on Human Relations by Ms. Hunton). Ms. Hunton telephoned the Commission in an effort to get an extension of time to file her request for hearing. At the time of this conversation, Ms. Hunton had already determined that she was required to mail her request no later than February 27, 1992. Although Mr. King reinforced this conclusion by failing to properly inform Ms. Hunton that her request for hearing was required to be received (filed) no later than February 26, 1992, the fact is that Ms. Hunton had already unreasonably concluded that she was not required to mail her request for hearing until February 27, 1992, and she had already failed to at least mail her request for hearing on February 26, 1992. Therefore, Ms. Hunton's error in this matter was not made in reliance on anything that Mr. King told her. The error had already occurred before her conversation with Mr. King. After speaking to Mr. King on February 27, 1992, Ms. Hunton mailed a Petition for Relief (hereinafter referred to as the "Petition"), to the Commission. A copy of the Petition was also mailed to Southern Bell. The Petition was not received (filed) by the Commission until Monday, March 2, 1992. The Petition was not filed by Ms. Hunton within 30 days of the date of the Notice. It was filed 35 days after the date of the Notice. Giving Ms. Hunton the benefit of the doubt concerning her lack of understanding as to the meaning of the term "filed" and assuming that Ms. Hunton was reasonable in concluding that "filed" meant to mail, Ms. Hunton still did not mail her request for hearing within 30 days of the date of the Notice. Therefore, even accepting Ms. Hunton's explanation of how she interpreted the term "file", Ms. Hunton's Petition was not timely filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief of Gina M. Hunton, as untimely filed. DONE and ENTERED this 29th day of October, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1992. COPIES FURNISHED: Gina M. Hunton 4929 Fauna Drive Melbourne, Florida 32934 E. Barlow Keener, Esquire Francis B. Semmes, Esquire Southern Bell Telephone and Telegraph Company Suite 4300 675 West Peachtree Street, N.E. Atlanta, Georgia 30375 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32303-4113
