Findings Of Fact On August 24, 1981, Famous Brands Television and Appliances, Inc., entered into a Consent Order with the State Attorney for Palm Beach County, Florida, whereby Famous Brands, together with its principals and officers and agents, agreed to cease and desist from utilizing "bait and switch" practices or be held in contempt of court. At all times material to that litigation, Respondent Bill Lacek was the president of Famous Brands Television and Appliances, Inc. Famous Brands became bankrupt. Lacek knew that his credibility had been affected by his management of Famous Brands. Therefore, when he opened V.T.S. Video, Inc., a similar business, he placed the corporation in the name of his sister Rose Richard. Although ostensibly the president and sole director of V.T.S. Video, Rose Richard's duties were limited to those of a bookkeeper/office manager, the same duties which she had when she worked for her brother at Famous Brands. V.T.S. Video was in the business of advertising and offering for sale video, television and stereo products to the general public. The business was located at 25 North Military Trail, West Palm Beach, Florida. Respondent Bill Lacek formulated, controlled, and directed the acts and practices at V.T.S. Video. He was personally responsible for the purchasing, advertising, marketing, and promoting of the products sold by V.T.S. Video. He personally wrote the advertising, established the sales commission structure for the employees of V.T.S. Video, and attended sales meetings. Lacek solicited customers through newspaper advertising, including advertisements in The Palm Beach Post. Lacek's advertisements included ads for Sony and Hitachi televisions and video cameras. Respondent Lacek's advertisements were not bona fide offers to sell the advertised products. When customers appeared at V.T.S. Video to purchase the advertised Sony or Hitachi products, they were told by V.T.S. Video employees that the Sony or Hitachi products were not available or that the only product available was a "floor model," i.e., a model which has been used at the business for demonstration purposes and which frequently has been damaged and is, therefore, an unattractive product for purchase. Additionally, Lacek and the employees of V.T.S. Video would disparage the advertised products and "switch" the shopper to a different brand, the item which Lacek intended to sell instead of the advertised product. To assure that his salesmen would follow his established "switch and bait" techniques, Lacek set the sales commission structure so that no commission was paid to a salesman who sold the advertised product (if one were available) rather than the product to which the customer was to be switched. Further, the advertisements written by Lacek did not disclose the fact that the advertised item was a floor model. Hopper Electronics in Miami purchases from the factory rebuilt or refurbished products which it then sells to wholesalers. A rebuilt or refurbished product is a product which has been returned to the factory as defective by a customer or a distributor. The factory repairs the item and then re-boxes it for sale. In other words, a rebuilt or refurbished ("RB") product is a used product. Lacek purchased from Hopper on behalf of V.T.S. Video between 3,000 and 5,000 Emerson "RB" products between approximately late 1986 and late 1987. All of the Emerson RB units purchased from Hopper Electronics carried a label saying "RB" on the back of the unit itself and a label saying "RB" on the box containing the unit. Lacek paid Hopper Electronics a total of $780,000 for Emerson RB units during that time period. Although Lacek knew that the RB units were used and not new products, his newspaper ads for those units did not disclose that the products were used or that they were RB products. The Emerson televisions and VCRs purchased from Hopper were sold to the public as new products. Lacek instructed his employees not to disclose that the Emersons were not new products. If a customer questioned the "RB" label appearing on the back of the unit or on the box, the customer was told that the product had been re-boxed or that the product was from Riviera Beach. Respondent Bill Lacek knew that his sales practices were deceptive and that they constituted unfair trade practices, even prior to the institution of this proceeding, since they were the same practices that he was enjoined from utilizing when he signed the Consent Order on behalf of Famous Brands Television and Appliances, Inc., in 1981. Respondent Lacek's practices in the operation of V.T.S. Video have injured the public. Two Assistant Attorneys General represented Petitioner at the final hearing in this cause. Attached to Petitioner's proposed recommended order are affidavits from those attorneys stating that they have spent 220 hours combined in the "investigation and resolution" of this matter. Petitioner has failed to submit a cost affidavit and has therefore waived its statutory right to recover reasonable costs in this action. The Agreed Final Order to Cease and Desist entered into by Petitioner and Respondents V.T.S Video, Inc., and Rose Richard the day before the final hearing in this cause provides that Respondent V.T.S. Video, Inc., will pay to Petitioner the sum of $10,000 in civil penalties plus the sum of $15,000 for attorney's fees in this action.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered: Finding Respondent Bill Lacek guilty of the allegations in the Complaint filed against him; Ordering Respondent Bill Lacek to cease and desist from all violations of Chapter 501, Part II, Florida Statutes, and of Chapter 2-9, Florida Administrative Code; Assessing against Respondent Bill Lacek a civil penalty in the amount of $1,500,000; and Denying Petitioner's claim for reimbursement of its attorney's fees and costs against Respondent Bill Lacek. DONE and ENTERED this ,7th day of March, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 7th day of March, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-0505 Petitioner's proposed findings of fact numbered 5, 7-15, and 17 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact. Petitioner's proposed finding of fact numbered 16 has been rejected as not being supported by the record in this cause. COPIES FURNISHED: Rhonda G. Lapin, Esquire Andy Itzkovits, Esquire Assistant Attorneys General Suite N921 401 N.W. Second Avenue Miami, Florida 32128 James S. Telepman, Esquire 340 Royal Palm Way Post Office Box 2525 Palm Beach, Florida 33480 (Last known address for Respondent Bill Lacek) Honorable Robert A. Butterworth Attorney General The Capitol Tallahassee, Florida 32399-1050 =================================================================
Findings Of Fact In March of 1984 the Respondent applied to the Department for a permit to erect a sign facing east at the location in question in this proceeding. The actual location proposed was 350 feet from the right-of-way of U.S. 17/92/441, adjacent to Oak Ridge Road, in Orange County, Florida. U.S. 17/92/441 is a federal-aid primary highway. Oak Ridge Road is a non-controlled road. There is another sign owned by the Respondent located 20 to 25 feet from the subject sign, but there is no evidence in the record to show which direction this other sign faces, or whether the two signs are on the same side of the highway. By memorandum dated April 5, 1984, the Department returned the Respondent's application for the reason that the sign location requested "is not on a federal-aid primary highway", and the Respondent "need only comply with local regulations". This memorandum stated further that "a state sign permit is not required" to locate a sign at the subject site. The application submitted by the Respondent in March of 1984 was returned with the notation on it that the proposed sign "need only comply with local regulations". Based upon the Department's response to its permit application, the Respondent erected its sign at the location where its application sought a permit. The sign that was erected is visible to traffic on U.S. 17/92/441, although it is parallel to U.S. 17/82/441 and at right angles to Oak Ridge Road. The notice of violation issued for the subject sign in July of 1985 seeks removal of this sign for not having the permit which the Respondent had applied for in 1984. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. It was as a result of this erroneous interpretation of the applicable statutes and rules that the Respondent's application for a permit was returned in April of 1984 with the notation on it that a permit was not required. This erroneous interpretation allowed the Respondent's sign to be built.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Peterson Outdoor Advertising Corporation, in the violation notice issued on July 26, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue Based upon the testimony received the primary issue is whether the poles were erected before the highway, I-10, was opened to the public. If so, do such poles constitute a sign within the meaning of Section 479.23, Florida Statutes, for the purposes of "grandfathering" such a structure?
Findings Of Fact These double-faced, stacked signs are located 1.4 miles east of State Road 276 on I-10. These signs were inspected on October 22, 1980, by an inspector of the Department of Transportation, who observed that the signs' messages were visible from the main traveled way of I-10 and did not bear the permits required by Chapter 479, Florida Statutes. At the time of this inspection I-10 was open to the public and was a part of the interstate highway system. See DOT Exhibit 1 and DOT Exhibit 3. The signs were located in an unincorporated area of Jackson County, Florida, which does not have a zoning ordinance. (Transcript, page 39.) Prior to the date of the hearing, name plates identifying Henderson signs as responsible for the signs were attached to the signs. (Transcript, page 29.) The Department had notified Henderson Signs of the Notice of Violation, and Henderson Signs requested a formal hearing by letter of its Counsel dated December 19, 1980. See files, Cases Nos. 81-106T and 81-107T. The foregoing facts establish that the subject signs are signs regulated by the Department pursuant to Chapter 479, Florida Statutes, and that Henderson Signs had a substantial interest in the signs. Gene Henderson testified concerning the erection of the poles and the attachment of sign faces to the poles. According to Henderson, the sign poles were erected during the latter part of 1975, and the first sign face (Case No. 81-106T) advertising "Quality Inn" was affixed to the sign on January 15, 1977. On June 15, 1978, a second sign face was affixed to the sign poles in the opposite direction (Case No. 81-107T) advertising "Shell Food Store." W. B. Reddock, affiliated with Arrowhead Camp Grounds, appeared and testified. Although Reddock may have some interest in these signs, it is concluded that the signs are the responsibility of Henderson Signs, which erected the poles prior to the time I-10 was opened to the public. The Department introduced DOT Exhibit 3, which shows that the section of I-10 along which the subject signs are located was opened to the public on October 14, 1977. The Department introduced DOT Exhibit 8, an aerial photograph of the section of I-10 along which the subject signs are located. This photograph bears the number PD 2193 and is Sheet 4 of 28 sheets taken on November 14, 1977. The photograph's legend reflects it has a scale of one inch equal to 50 feet. The Department's engineer, who established that the scale was accurate, indicated by a red mark the measured location of the signs 1.4 miles east of SR 276 on I-10. The photograph was examined by the Department's engineer, who observed the presence of six poles at the location. No sign faces were attached to the poles on November 14, 1977, 30 days after the highway was opened to the public.
Recommendation Having considered the proposed findings of fact submitted by the parties, and based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject signs within 30 days and without compensation to the signs' owner. DONE and ORDERED this 16th day of September, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September,1981. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 Charles M. Wynn, Esquire 310 Jackson Street Post Office Box 793 Marianna, Florida 32446 Jacob D. Varn, Secretary Department of Transportation Haydon Burns Building, MS 57 Tallahassee, Florida 32301
Findings Of Fact Respondent, Henderson Sign Service, erected and owns a sign located on Interstate Highway 10, 1.5 miles east of State Road 276 in Jackson County, Florida. The sign is visible from the main traveled portion of Interstate Highway 10. At the time of the filing of the petition in this cause, and as recently as October 2, 1978, no permit tag was affixed to the sign structure. In addition, the sign structure is located 123 1/2 feet from the white line on the highway at the outside edge of the eastbound lane. At all times material to this proceeding the sign in question bore advertising copy which read "Plantation House, pool, bus tour, restaurant, Quality Inn". Respondent had not applied to DOT for the issuance of a permit for the sign in question as of the date of the hearing in this cause. Any proposed finding of fact submitted by the Respondent and not incorporated in this Recommended Order was either rejected or deemed irrelevant.
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Bennett Road, approximately 280 feet north of the intersection of Bennett Road with State Road 50, in Orange County, Florida. This location is approximately 1.4 miles west of SR 436, as alleged in the violation notice. The subject sign is located on the west side of Bennett Road facing north and south which is parallel to State Road 50. State Road 50 is a federal-aid primary highway. Bennett Road is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In 1984, the Respondent had applied for a permit to erect a sign along a non-controlled road within 660feet of a federal-aid primary highway, and had been advised by Department personnel that a state permit was not required (See Case No. 85- 3017T which was heard contemporaneously with the subject case). The sign which is the subject of this proceeding was erected without a permit based on the Respondent's knowledge of the Department's position that a permit was not required, as expressed to the Respondent previously in 1984. The subject sign is visible to traffic on State Road 50, although it is perpendicular to Bennett Road and parallel to State Road 50. There is another permitted sign owned by National Advertising Company located on the north side of State Road 50, east of the Bennett Road intersection, approximately 114 feet from the subject sign. The National sign faces east and west, not north and south, and it is not on Bennett Road. Another permitted sign owned by Peterson Outdoor Advertising is located on the north side of State Road 50, approximately 475 feet west of the Bennett Road intersection. This sign faces east and west, not north and south as the subject sign does, and it is not on Bennett Road as the subject sign is.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Peterson Outdoor Advertising Corporation, in the violation notice issued on August 21, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Holden Avenue, approximately 400 feet west of the intersection of Holden Avenue with U.S. 17/92/441, in Orange County, Florida. This location is approximately 4.04 miles south of SR 50, as alleged in the violation notice. The subject sign is located on the south side of Holden Avenue, facing east and west which is parallel to U.S. 17/92/441. U.S. 17/19/441 is a federal-aid primary highway. Holden Avenue is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In 1984, the Respondent had applied for a permit to erect a sign along a non-controlled road within 660 feet of a federal- aid primary highway, and had been advised by Department personnel that a state permit was not required (See Case No. 85- 3017T which was heard contemporaneously with the subject case). The sign which is the subject of this proceeding was erected in February of 1985 without a permit based on the Respondent's knowledge of the Department's position that a permit was not required, as expressed to the Respondent previously in The subject sign is visible to traffic on U.S. 17/92/441, although it is perpendicular to Holden Avenue and parallel to U.S. 17/92/441. There is another permitted sign owned by Cashi Signs located on the west side of U.S. 17/92/441, approximately 686 feet south of the Holden Avenue intersection. This sign faces north and south, not east and west and is not on Holden Avenue.
The Issue The Administrative Complaint in this cause charges that the subject sign violates Sections 479.071 and 479.021(a), Florida Statutes, and Rule 14-10.09, Section 3, Florida Administrative Code, which is the same as Rule 14- 10.06(b)(2)(b), Florida Administrative Code, supra. The Respondent admits ownership of the outdoor advertising structure and that it does not bear a tag as required by Chapter 479, Florida Statutes; however, the Respondent asserts that the sign in question qualifies as an exception and is entitled to a tag pursuant to the provisions of Section 479.111, Florida Statutes. The Petitioner asserts that the sign does not qualify for a tag and stipulates that had the Respondent applied for a tag that said application would have been denied. The Respondent also contends that the sign is exempt from operation of the outdoor advertising law in all respects pursuant to the provisions of Section 479.16(1), Florida Statutes. Based upon the foregoing, the following issues of fact are raised: Is the subject sign an on-premises sign for purposes of the exemption stated in Section 479.16(1), Florida Statutes, and Is the sign located in an unzoned commercial or industrial area as defined by Section 479.111(2) and Rule 14- 10.06(b)(2)(b), Florida Administrative Code, and Does the subject sign meet the spacing requirements set forth in Rule 14-10.06(b)(2)(b), Florida Administrative Code?
Findings Of Fact The parties stipulated to the facts as found in paragraphs 1 through 9 below. The subject advertising structure is an advertising sign as defined by Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. The subject sign is located in Jackson County, Florida. The subject sign is not within the corporate city limits of any city or town. The subject sign is within 660 feet of Interstate 10. The subject sign is owned by the Respondent, Fuqua & Davis, Inc., a Florida corporation. The subject sign does not have a permit as required by Chapter 479, Florida Statutes. The Petitioner, Department of Transportation, would not issue a permit as required by Chapter 479, Florida Statutes, for the subject sign. There is no zoning in Jackson County, Florida. Interstate 10 is an interstate highway as defined in Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code, and said interstate highway was open for vehicular traffic at the time sign was erected. The sign can be seen from the main traveled way of I- 10. The subject sign is located at the interchange of State Road 69 and Interstate 10. In this location, there are several commercial enterprises; a Union 76 gas station, a Phillips 66 gas station, a western wear shop, an Exxon gas station, and the Respondent's Shell gas station. These, together with the sign, are identified on Petitioner's Exhibit 1, an aerial photograph. The area surrounding the interchange of State Road 69 and Interstate 10 in which the sign is located is an unzoned commercial area. This finding is based upon the testimony of a real estate appraiser together with the businesses which are located in this area. The evaluation of property to commercial within an interchange commences with the construction of an interstate highway and progresses toward a total commercialization of the property. The highest and best use for the land is commercial and it has begun that transition. The location of the subject sign is identified on Petitioner's Exhibit 1 in Case Nos. 81-191T and 80-796T, an aerial photograph. The subject sign is located adjacent to an interchange on an interstate highway. It is not located on the premises of the business advertised. The sign is over 1,000 feet away from and across SR 69 from the advertised business on non- contiguous property.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Final Order of the Department be issued requiring removal of the sign within thirty (30) days by the Respondent. DONE and ORDERED this 20th day of December, 1984 in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charles Gardner, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301 James J. Richardson, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302 Mr. Paul Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of December, 1984.
Findings Of Fact On or about March 8, 1977, Henderson Signs filed applications for two permits to erect an outdoor advertising sign in Jackson County, Florida, on the south side of Interstate 10, approximately 1.3 miles west of U.S. 231. These applications were field inspected by the Department's outdoor advertising inspector, they were approved, and the Department issued permits numbered 9126-10 and 9127-10 for the requested location to Henderson Signs. On or about January 4, 1984, permits numbered 9126-10 and 9127-10 were reported lost, and the Department issued replacement tags numbered AL083-10 and AL084-10. Subsequent to the issuance of these permits, Henderson Signs transferred all of its interest in the subject permits to the Respondent, Tri- State Systems, Inc. When Henderson Signs submitted the applications for the subject permits it designated thereon that the proposed location was within 800 feet of a business known as Lee's or Dilmore's Packing Plant. These applications also certified that the signs to be erected would meet all of the requirements of Chapter 479, Florida Statutes. The business known as Lee's or Dilmore's Packing Plant is located within 800 feet of the permitted site. The building in which this business is conducted appears from the interstate to be a barn, or a livestock shed, or an outbuilding. It is visible from I-10, but there is nothing about the building or the surrounding area to indicate that it is a business, or that any commercial activity is being conducted at this location. There is nothing to distinguish the Dilmore building from any other rural building in Jackson County, and from the photograph that was received in evidence the area appears to be agricultural or rural in nature, and not commercial. The Respondent contends that there is an on-premise sign on the Dilmore property and that this sign was visible from I-10 in 1977 and is visible now. The Department's witnesses testified that there was and is nothing to indicate to traffic on the interstate that any commercial activity existed at the subject location. The photograph in evidence shows the area to be rural and does not show a sign, thereby tending to corroborate the Department's witnesses. There is no evidence showing where the Dilmore sign is with reference to the interstate, what its size is, what its copy is, or how visible it is to traffic on I-10. As a result, the evidence is not of sufficient quality or quantity to support a finding of fact that the Dilmore sign exists now, or that it was ever there, or that such a sign would indicate to interstate traffic that a business activity exists at the subject location. During the summer of 1984 the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because there was no visible commercial activity within 800 feet of the permitted location. In October of 1984, the Department issued Notices of Violation advising the Respondent that the subject permits were being revoked because they were not for a location in a zoned or unzoned commercial area. Prior to the transfer of the permits from Henderson Signs to the Respondent, representatives of the Respondent testified that they inquired at the Department's district office in Chipley whether the permits to be purchased from Henderson Signs were valid permits. They further testified that they received assurance from the Chipley district office that these permits were legal permits. This testimony, however, is totally self-serving without some form of corroboration, and is thus not of sufficient quality to support a finding of fact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits numbered AL083-10 and AL084-10 held by the Respondent, Tri-State Systems, Inc., authorizing signs on the south side of I- 10, approximately 1.3 miles west of U.S. 231 in Jackson County, Florida, be revoked, and any signs erected pursuant to these permits be removed. THIS RECOMMENDED ORDER entered this 8th day of October, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
Findings Of Fact The Respondent is a licensed optician in the State of Florida, holding license number DO-0001378. The last known address of the Respondent is 20/20 Opticians, Inc., of 6201 S.W. 70th Street, South Miami, Florida. At all times pertinent hereto, the Respondent was president of 20/20 Opticians, Inc. The Petitioner is an agency of the State of Florida, charged with regulating the practice of opticianry, including regulation of practice standards, including standards of advertising. The Petitioner, through Exhibit One and the testimony of Jim Foreman of Southern Bell, established that the Respondent took out the subject ad advertising the "buy one - get one free" arrangement for obtaining glasses from his firm and Petitioner established that the Respondent signed the order or invoice for purchase of the ad. This ad had been taken out previously and then renewed in substantially the same format with merely the picture of the Respondent deleted. The ad, with the subject advertisement, was renewed on December 17, 1979. Maria Osuna, an investigator for the department went to 20/20 Opticians, Inc. in July of 1981. She conferred there with Lewis Ramirez, an employee of the Respondent, regarding the possibility of her obtaining a free pair of eyeglasses after purchasing a pair. That employee said that the ad was not honored any longer. She conferred with the office manager of the Respondent's firm who knew of the ad, but refused to honor it. Allen Daniel Kirtis was hired by the Respondent in March of 1981. The Respondent told him to give customers second pairs of eyeglasses (with their old frames) for $9.95 and not to honor the subject ad, but rather to charge them $9.95 for a second pair or 50 percent of retail price, which ever was higher. He was specifically instructed by the Respondent not to honor the ad during the time when the ad was running in the yellow pages. Mr. Kirtis established that the subject ad was current and ran as a current advertisement in the phone directory at least until November, 1981. In response to the evidence and testimony adduced by Petitioner, the Respondent produced nothing and failed to appear at the hearing.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That the Respondent be found guilty as charged and a Final Order be entered by the Petitioner suspending his license for one (1) year. DONE and ENTERED this 30th of March, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of March, 1983. COPIES FURNISHED: Jerry Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lionel Barnet, Esquire 13842 SW 56th Street Miami, Florida 33183 Fred Varn, Executive Director Board of Opticianry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent, the University of Florida, discriminated against Petitioner, Tracey Krefting, previously known as Tracey Hardin, on the basis of a handicap as alleged in the Petition for Relief filed by Petitioner.
Findings Of Fact The Parties. The Petitioner, Tracey Krefting, formerly known as Tracey Hardin, is a handicapped individual. She suffers from seizure disorder. Ms. Krefting graduated from the University of Florida in May of 1990. She received a bachelor of science degree with a major in advertising. Ms. Krefting had experience as an advertising sales representative prior to her employment by the Respondent. The Respondent, the University of Florida (hereinafter referred to as the "University"), is a State university located in Gainesville, Florida. Within the College of Journalism and Communications of the University is a radio station, WRUF. WRUF was an auxiliary operation of the University responsible for raising revenue to fund all of its expenses, including the salaries for its sales representatives. No state funding was received directly or indirectly from the University by WRUF. Ms. Krefting's Employment by the University. Ms. Krefting was employed by the University at WRUF on July 28, 1992. Ms. Krefting was employed as "OPS", other personnel services. Ms. Krefting was employed to act as one of six or seven sales representatives of WRUF. As of January 29, 1993, Robert Clark was the General Manager of WRUF. Mr. Clark was Ms. Krefting's supervisor from January 29, 1993 until her termination from employment. Sales Representative Qualifications. The essential function of sales representatives for WRUF was to sell radio time for advertising. This function was an essential function because the revenue necessary to operate WRUF was generated in this manner. Sales representatives were responsible for servicing existing clients and for finding new clients. An essential requirement of the sales representatives of WRUF, including Ms. Krefting, was the ability to travel to the businesses and offices of WRUF's advertising clients and prospective clients. Sales representatives were generally required to spend 80 percent of their working hours out of the office servicing clients and seeking new clients. Continuous contact and an ongoing relationship with clients was required. Contacts with clients were expected to be face to face and not just over the telephone. In addition to being required to make regular contacts with clients, sales representatives were also required to make themselves available to visit their clients with little notice. Obtaining new clients usually required more than one contact with a prospective client by a sales representative. The sales representative was required to sell himself or herself and the station and must gain the trust of the prospective client. Sales representatives were also responsible for performing public service work. This work entailed the providing of public service announcements. The public service work performed by sales representatives did not directly generate revenue for WRUF. Neither the application for employment completed by Ms. Krefting when she was initially employed at WRUF nor the University's OPS personnel requisition form authorizing her employment included any of the necessary skills or qualifications for the sales representative position she was hired to fill. Ms. Krefting was aware at the time she was hired, however, that she would be required to travel to her clients locations and to the locations of prospective clients. There are other means of transportation available which would have allowed Ms. Krefting to reach clients and prospective clients: vehicle driven by a hired driver, public transportation, taxi, and walking. The evidence failed to prove, however, that there were any reasonable means of transportation available to Ms. Krefting other than driving herself which would have allowed her to meet the requirements of a sales representative for WRUF. Ms. Krefting's Handicap. On April 18, 1993, Ms. Krefting fell while rollerskating. Ms. Krefting hit her head on the ground when she fell. On April 19, 1993, Ms. Krefting was admitted to the emergency room of the North Florida Regional Medical Center. The evidence failed to prove that the injury she suffered on April 18, 1993, caused Ms. Krefting to suffer any seizure. On May 6, 1993, Ms. Krefting suffered a seizure while leaving her home to go to work. Ms. Krefting was ultimately diagnosed as having "seizure disorder." At all times relevant to this proceeding, Ms. Krefting suffered from a "handicap." Ms. Krefting's Inability to Drive. On or about May 18, 1993, Ms. Krefting provided a letter from George Feussner, M.D., dated May 18, 1993, to Mr. Clark. In the letter Dr. Feussner indicated that Ms. Krefting was able to return to work but that she could "not operate a motor vehicle " Although Dr. Feussner did not indicate how low Ms. Krefting would be unable to drive, Ms. Krefting informed Mr. Clark that Dr. Feussner had informed her that she would not be able to drive until she was seizure free for one year from the date of her last epileptic seizure, May 6, 1993. As a result of the restriction on Ms. Krefting's ability to drive and based upon Florida law, Rules 15A-5.003 and 15A-5.004, Florida Administrative Code, Ms. Krefting was unable to drive herself to see existing or prospective clients until at least May 6, 1994. Ms. Krefting discussed with Mr. Clark the possibility of hiring a "tenant" of hers to drive her around. Ms. Krefting did not identify the "tenant." Nor did Ms. Krefting inform Mr. Clark that she had completed making arrangements with anyone to drive her. Mr. Clark did not preclude Ms. Krefting from making arrangements to have someone provide transportation for her. Mr. Clark did tell Ms. Krefting that it would have to be determined what implications, if any, a driver would have on WRUF's workers compensation coverage. The resolution of this issue was to be delayed, however, until Ms. Krefting made concrete arrangements for a driver and discussed those arrangements with Mr. Clark. Ms. Krefting failed to finalize any arrangement for a driver. Had Ms. Krefting provided her own driver, at her own expense, Ms. Krefting may have been able to meet the requirement of her position that she be able to provide her own transportation. Ms. Krefting, however, did not take the necessary steps to hire a driver prior to her termination from employment. Ms. Krefting talked to her tenant, Kenneth Vest, about acting as her driver. Mr. Vest worked in the same building that Ms. Krefting did. Mr. Vest worked Sunday through Wednesday from 3:30 p.m. to 1:30 a.m. He was, therefore, generally available for part, but not all, of Ms. Krefting's working hours. Mr. Vest was generally willing to drive Ms. Krefting, if he were compensated. Ms. Krefting did not discuss with Mr. Vest the exact hours that he would be expected to drive her or her schedule. Nor did Ms. Krefting discuss compensation with Mr. Vest. Ms. Krefting failed to prove that Mr. Vest or any other individual was available at any time relevant to this proceeding, or at the final hearing, to provide transportation for her in a manner that would fulfill her responsibilities as a sales representative. Because of the restriction on Ms. Krefting's ability to drive and her failure to make alternative arrangements to have someone like Mr. Vest drive her, Ms. Krefting failed to prove that she met all the qualifications of her position with WRUF. Ms. Krefting did not meet all the qualifications of her position. But for her handicap, however, Ms. Krefting would have met all of the qualifications of a sales representative. The University's Decision to Terminate Ms. Krefting's Employment. On or about May 24, 1993, Mr. Clark informed Ms. Krefting that WRUF could not continue to employ her because of her inability to drive. Ms. Krefting suggested alternative means of meeting her responsibilities with Mr. Clark when she was informed that WRUF would not be able to continue her employment. Mr. Clark considered the suggestions, but did not accept any of them. On June 16, 1993 Mr. Clark agreed to extend Ms. Krefting's termination date to accommodate her efforts to find another postition within the University. Ms. Krefting was ultimately terminated from employment in early July of 1993. Ms. Krefting was terminated because she was prohibited from driving her vehicle and there was no other reasonable means of meeting her responsibilities to service clients and prospective clients. The University's Inability to Accommodate Ms. Krefting's Inability to Drive. During 1993, the financial condition of WRUF was precarious. WRUF was operating at a loss. Three employees had been terminated and a department had been eliminated. Another vacant position had not been filled. WRUF was forced to borrow funds from the University and a foundation account in order to continue operating. At all times relevant to this proceeding, WRUF was unable to create a newly funded position or to allow a sales representative to fail to generate reasonably expected revenues. Ms. Krefting suggested several possible alternatives to accommodate her inability to meet her requirement that she be able to drive. The suggestions were discussed with, and considered by, Mr. Clark. One suggestion Ms. Krefting made to Mr. Clark was to create a new position. The position would entail performing all of the public service work of the sales representatives. Mr. Clark rejected this proposal because it entailed the creation of a new position. The creation of a new position was not a reasonable accommodation. The creation of a new position, especially one that did not generate revenue, would have created a financial hardship on WRUF. The evidence also failed to prove that the public service work could be performed without the need for travel. A second suggestion Ms. Krefting made to Mr. Clark was to restructure her position so that she would be responsible for the preparing of proposals, filing, handling incoming sales calls and telemarketing. In effect, this suggestion also entailed the creation of a new position. This suggestion was rejected by Mr. Clark. Ms. Krefting's second suggestion was not a reasonable accommodation. It would have created an undue financial hardship on WRUF because there was not sufficient work to justify such a position. A third suggestion made by Ms. Krefting to Mr. Clark was that she be teamed with another sales representative who would do all the driving. Mr. Clark rejected this suggestion. Ms. Krefting's third suggestion was not a reasonable accommodation. Teaming two sales representatives would have reduced the effectiveness of two sales representatives who would be available to visit different clients and prospective clients at the same time if they were not teamed. This would have created an undue financial hardship on WRUF. A fourth suggestion made by Ms. Krefting to Mr. Clark was that she use public transportation and taxis. Mr. Clark rejected this suggestion. Although it is questionably whether Ms. Krefting's fourth suggestion constitutes an accommodation, to the extent that it does, it was not a reasonable accommodation. Public transportation does not provide the flexibility required of sales representatives because of the inadequacy of routes and schedules of available transportation. A fifth suggestion made by Ms. Krefting to Mr. Clark was that she provide her own driver. It is questionable whether the use of a driver, as suggested by Ms. Krefting, constitutes an accommodation. To the extent that Ms. Krefting was suggesting that WRUF provide her a driver, her suggestion was not a reasonable accommodation. If WRUF had been required to provide the driver, it would have caused an undue hardship on WRUF. Finally, Ms. Krefting suggested that a student intern from the University's College of Journalism be assigned to work with her and that the intern provide the driving required by her position. Mr. Clark rejected this suggestion. Ms. Krefting had discussed the idea of using an intern with Dr. Joseph Pisani, the Chair of the Advertising Department of the College of Journalism. Although Dr. Pisani was not opposed to the use of an intern-if the intern was properly used-he was opposed to the use of an intern primarily or exclusively as a driver. The suggestion that interns be used was not a reasonable accommodation. Student interns usually are only available to work as an intern for a maximum of 12 hours a week. Additionally, the 12 hours a week that an intern would be available depends upon their class schedule. Therefore, student interns would not be available for a sufficient period of time for Ms. Krefting to fulfill the responsibilities of her position. Although it is not impossible to find a student that would be willing to act as an intern full-time, the evidence failed to prove that it was likely that a student could be found that would be willing to take no classes for up a year or that it would be financially feasible for a student to do so. Mr. Clark did not actually attempt to implement any of Ms. Krefting's proposals. Mr. Clark also did not "consult with any experts" about the proposed accommodations. Mr. Clark's failure to attempt to implement any of the proposals or to consult with experts was not, however, necessary. The issue confronting Mr. Clark was not one involving a decision which required special knowledge or understanding of Ms. Krefting's handicap, or the needs of persons who suffer from seizure disorder. The only issue confronting Mr. Clark was how to accommodate the inability of a sales representative to transport herself to meet the needs of clients and prospective clients. Mr. Clark had all the necessary information to decide how to deal with this issue: Ms. Krefting, regardless of her condition or needs, was prohibited from driving an automobile for at least a year. Mr. Clark was fully aware of the impact of this restriction on WRUF and the resulting inability of a sales representative to carry out their responsibilities. The suggested accommodations made by Ms. Krefting also required no special knowledge or understanding. The suggestions only required an understanding of the needs of WRUF and what was expected of sales representatives. Ms. Krefting's Loss of Income. Subsequent to her termination by WRUF Ms. Krefting remained unemployed until February of 1994. After her termination by WRUF Ms. Krefting received unemployment benefits of approximately $3,500.00 Ms. Krefting earned $800.00 for part-time employment in March of 1994. Ms. Krefting was unable to work from April of 1994 until June of 1994. Ms. Krefting is currently employed. Ms. Krefting's Complaint. Ms. Krefting filed a Charge of Discrimination with the Commission on or about August 18, 1993 alleging that the University had discriminated against her on the basis of her handicap. On or about January 21, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about February 17, 1994, Ms. Krefting filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings. Conclusion. The evidence in this case failed to prove that the University terminated Ms. Krefting's employment because of her disability. Ms. Krefting was terminated by the University because she could not meet all of the requirements of her position. The evidence failed to prove that the University could reasonably accommodate Ms. Krefting's inability to drive without undue hardship to WRUF's activities. Ms. Krefting failed to prove that the University discriminated against her on the basis of her handicap.
