Findings Of Fact Respondent, Thomas A. Baggett, was at all times material hereto licensed by the State of Florida as a pilot in Tampa Bay. On May 15, 1984, Captain Baggett was employed to undock the M/V Hybur Tropic (Tropic) from Berth 264, Port of Tampa, and to pilot her outbound through Tampa Bay. The Tropic is 238 feet long, with approximately a 32 foot beam, and a draft of over 7 feet. She is powered by a direct drive diesel engine and backs to port. Because the Tropic is direct drive, it takes a minute to a minute and a half to shift the direction of the engine; and another minute to a minute and a half to make headway in the opposite direction. At slow astern, the Tropic will achieve a speed of 2-3 knots in less than two ships' lengths. At or about 1820 hours, May 15, 1984, Captain Baggett ordered the Tug Dorothy to make up a hawser to the center chock aft of the Tropic and pull the stern of the Tropic, which was moored port side to Berth 264, away from the dock. Captain Baggett maneuvered the Tropic's stern around the bow of the M/V Carib Haven which was moored within 100 to 150 feet of Berth 264 on the south side of the slip, and positioned the Tropic in the center of the west end of the slip. Captain Baggett then ordered the Tug Dorothy to pull the Tropic backward out of the slip and ordered the Tropic's engine to slow astern. As the stern of the Tropic exited the slip into Ybor Channel, Captain Baggett ordered the Tug Dorothy to pull the stern of the Tropic to the north, but did not order any engine change. Finally, as the bow of the Tropic cleared the slip, and was in the Ybor Channel, Captain Baggett ordered the Tropic's engines to slow ahead. When she entered the Ybor Channel the Tropic was making a minimum of 2-3 knots, and with the assist provided by the Tug Dorothy more probably 4-5 knots. Captain Baggett's handling of the Tropic placed the Tug Dorothy in a position of peril, and rendered her ineffectual. By continuing slow astern, after ordering the tug to pull the Tropic's stern to the north, the Tropic's tendency to back to port worked against the tug's efforts. By continuing to back the Tropic's engine until her bow had cleared the slip, the Tropic backed past the tug and began to trip her. With water coming over the tug's port side, and the danger of tipping over imminent, the tug's deckhand released the hawser to the Tropic, and the Tropic backed past her into the side of the barge IOS 3301, which was moored on the east side of the Ybor Channel immediately east of the slip the Tropic exited. Captain Baggett's assertion that a collision would have been avoided if the Tug Dorothy had not released the hawser is unpersuasive. At the time the hawser was released, Captain Baggett's handling of the Tropic had already rendered the tug ineffectual, and a collision with the barge 105 3301 inevitable. When Captain Baggett finally ordered the Tropic's engine slow ahead, her bow had cleared the slip and she was moving astern at a minimum of 2 knots. By that time, the Tropic's stern was only 180 feet from the side of the barge 105 3301. At 2 knots the Tropic would cover 200 feet in one minute. Accordingly, before the Tropic's engine could even start ahead, she had backed into the barge. Captain Baggett sought to justify his backing of the Tropic through testimony that he used the Tropic's tendency to back to port to keep her bow from falling down on the M/V Carib Haven. However, by the time the Tropic's stern exited the slip, her bow was already clear of the M/V Carib Haven. Further, Captain Baggett conceded that the Tug Dorothy, even with existing shipping in the slip, was capable of safely towing the Tropic into the Ybor Channel without any assist from the Tropic's engine. Captain Baggett failed to offer any persuasive evidence which would exculpate him. 1/ Wind, weather and current conditions were not unfavorable at the time of the collision, and the Tropic did not experience any mechanical problems.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner William Lineberger, doing business as Jet Oil Company, has, since 1950, continuously used the brand name "Jet" for identifying gasoline sold by him in the State of Florida. At one time, petitioner owned or operated some thirteen stations in various locations in Florida. Since 1980, he has operated only three stations, all located in Pinellas County-- two in St. Petersburg and one in Pinellas Park. Pursuant to Chapter 525, Florida Statutes, the respondent Florida Department of Agriculture and Consumer Services first issued petitioner a liquid fuel brand name registration for the name "JET" in 1973. Pursuant to Chapter 495, Florida Statutes, the Florida Secretary of State issued petitioner mark registration number 922,820 on August 11, 1980, for the mark "JET" as a trademark and a service mark to be used in connection with gasoline and oil product convenience store items. Kayo Oil Company (Kayo) is a Delaware corporation and a wholly-owned subsidiary of Conoco, Inc. Kayo operates a chain of retail gasoline and convenience stores in 22 states. It has approximately 465 locations concentrated mainly in the southeast portion of the country, with 38 locations in Florida, including one in Pinellas Park. Kayo currently has plans for further expansion in Florida. It's fixed asset base in Florida is approximately $10 million. The typical Kayo retail gasoline outlet in Florida has four multiple product dispensers, sells 500 to 600 different convenience items inside an 800 to 1600 square foot building, markets fast food products and employs a color scheme of black on yellow on its signage and building facade. Conoco, Inc. first began using the "JET" trade name in Europe in the 1960's when it acquired a large chain of European retail gasoline outlets selling under that brand name. It currently operates about 2,000 units under the brand name "JET" in Europe. In the United States, Kayo has used various trade names in the operation of its outlets, including "Kayo" and "JET". In the early 1980's, Kayo made the decision to standardize the name it traded under throughout the United States, and selected the name "JET". In most instances, it accomplished the conversion of its stations from "Kayo" to "JET", with the black on yellow color scheme, during the period from the early 1980's through 1984. The intervenor initially sought to obtain from the Florida Department of Agriculture and Consumer Services the liquid fuel brand name "JET". That request was denied for the reason that "JET" had been previously registered to the petitioner. Thereafter, the Department issued to the intervenor the liquid fuel brand name registration, "JET +" on April 27, 1981. Kayo is required to display the "JET +" liquid fuel brand name on its dispensers or pumps. 1/ With the exception of two of its Florida locations, Kayo uses the word "JET" on its street and building signage. At its Pinellas Park and Clearwater stations, it has retained the name "Kayo". Being an independent brand marketer, Kayo attempts to dedicate the majority of its signage to display the price of gasoline, as opposed to the gasoline brand name. It is Kayo's marketing philosophy that the consumer is more influenced by low prices and location than by the fuel brand name. In 1984, the physical appearance of petitioner's three stations did not resemble the physical appearance of the typical Kayo station in Florida. Subsequent to 1984, petitioner did some remodeling work at its Pinellas Park station which included yellow and black signage and the name "JET" in black block letters on a yellow background, resembling Kayo's style of lettering on both its pump decals and its signage in areas outside Pinellas County. The yellow pages of the St. Petersburg telephone directory lists both Kayo's Pinellas Park station and petitioner's Pinellas Park station under the heading of Jet Oil Company. In February or March of 1987, a local cigarette supplier attempted to deliver and present an invoice for cigarettes ordered by Kayo to one of petitioner's facilities. This occurred again with the same supplier in March of 1987. In January of 1987, a Motor Fuel Marketing Complaint against the "Jet" business at 7091 Park Boulevard was filed with the Division of Consumer Services, Department of Agriculture and Consumer Services. Although this is the address of the Kayo station in Pinellas Park, the Consumer Services Consultant, Division of Consumer Services, forwarded the complaint to "Jet Oil Company" at 7879 - 49th Street North, the petitioner's station, for a response. Petitioner presented evidence that other instances of confusion between its stations and Kayo stations had occurred with respect to bills, bank inquiries, and a newspaper article. Also, on one occasion, petitioner was ordered by the Pinellas Park police to close its stations because a bomb threat had been made against Jet Oil. Petitioner did not produce any evidence that the source of any of the incidents related was attributable to the liquid fuel brand names utilized by it or the intervenor.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's request for a hearing challenging the issuance of the "JET +" registration to the intervenor be DISMISSED. DONE and ORDERED this 16th day of July, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 16th day of July, 1987.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Voluntary Withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, George Moore Chevrolet, Inc., be permitted to relocate its dealership to 10979 Atlantic Boulevard, Jacksonville (Duval County), Florida 32225, for the sale of the line-make Chevrolet (CHEV), upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed October 19, 2010 11:37 AM Division of Administrative Hearings. DONE AND ORDERED this Z, 7 —day of October, 2010, in Tallahassee, Leon County, Florida. ‘ARL A. FORD, Direct Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division, of Motor Vehicles this day of October, 2010. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: John H. Holley, Esquire Shutts & Bowen, LLP 215 South Monroe Street, Suite 804 Tallahassee, Florida 32301 Carlos Latour General Motors Company 100 GM Renaissance Center Detroit, Michigan 48265 George H. Moore George Moore Chevrolet, Inc. 711 Beach Boulevard Jacksonville, Florida 32250 Lawrence P. Stevenson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioners are several of the current operators of the eleven service stations located at the eight service plazas on the Florida Turnpike. Each has considerable experience and background in the business of supplying oil and petroleum products to the motoring public on the Turnpike. Currently, the Turnpike service stations are being operated by lessees, or their sublessees, who contracted in 1977 and 1978 with the DOT for a five year term. The leases have been extended due to a series of legal proceedings. Each petitioner is a lessee or a sublessee operator. Prior to 1984, the DOT obtained service station operations on the Turnpike through the competitive bidding process. In 1984, the Legislature changed the mode of acquiring such services by requiring a request for proposal process. Eight factors, as well as such other factors as the DOT may deem pertinent, were enumerated by the Legislature to be used in evaluating proposals. Section 338.235(2)(a), Florida Statutes. By letter dated July 31, 1984, the DOT notified the petitioners and other potential proposers of the legislative change in procedures for securing concessionaire services on the Turnpike. Current operators and others were informed of the factors to be used in evaluating upcoming proposals and were informed that the DOT would require both full service and self- service fuel dispensing for each station. The DOT requested input and suggestions regarding the upcoming RFP process. Interested persons were solicited as proposers through advertisements and were advised to submit their letters of interest and statement of qualifications to the DOT. Some 38 parties, including the petitioners herein, were certified by the DOT as qualified to propose. The RFP in question was distributed to the prequalified proposers in April of 1986. On June 12, 1986, a preproposal conference was held by the DOT to answer written questions which had previously been submitted and to answer questions from the floor. The 44 questions and answers were later reduced to a single document and were mailed to each of the proposers. The DOT also issued three addendums modifying several of the original RFP requirements. In general, the RFP solicits creative and innovative proposals for modernization of the service station operations and facilities. It requires a combination of both full and self-service fuel dispensing, wrecker service, minor repair service and 24-hour a day operations. Basic remodeling changes are required, and major renovations will be considered. The RFP and its addenda provide detailed comments and directions as to the concepts which the proposers are requested to develop. The proposed service station lease agreement is attached to the RFP, and it provides further information as to the basic services required. Proposals submitted are to be evaluated based upon a point system set forth in the RFP as follows: "Management Plan (Maximum of 50 Points) 0 - 10 Points - Full intent to comply with the terms of the proposed Lease Agreement for the services as set forth in Section IV of this RFP, including specifically the provi- sions covering retail pricing of motor fuels and services to be offered. 0 - 20 Points - Meeting the needs and des- ires of Turnpike patrons; including but not limited to cleanliness of restrooms, appear- ance of the premises, fast service, quality products, reasonable prices, friendly person- nel. 0 - 20 Points - Extent and style of ser- vices to be provided; including but not limited to road and wrecker services where applicable, scope of repairs, ratio of self- service to full-service fuel pumps. Additional Considerations (Maximum of 50 Points) 0 - 25 Points - Renovation concept schedule and financial commitment to provide remodeled facilities. 0 - 15 Points - Revenue to Department. 0 - 10 Points - Qualifications - Skills and experience of the proposer to under take the Assignment." Each member of a five-member selection committee will independently award the points, the numbers will then be averaged, and the proposals with the highest score and those clustered within ten points of the highest score will be submitted to the DOT Secretary, Assistant Secretary and Deputy Assistant Secretary for final selection. Beyond the quoted point system set forth in the RFP, the DOT has not further articulated the criteria by which the scorers will differentiate between an award of 0 points and 10 or 20 points. The selection committee is comprised of five DOT employees whose range of experience includes Turnpike operations, maintenance operations, financial matters, real estate matters and the current service station operations. None of the five members has actually operated a service station. Originally, the RFP required a 5 to 7 year performance bond. However, after receiving criticism as to the availability of such a bond, the bond form was revised in a manner which would be acceptable to sureties doing business in Florida. While the form is now acceptable, an actual commitment from an insurance company may be difficult to obtain prior to actual knowledge of the ultimate terms of the contract. The RFP initially required a 5 to 7 year supply contract agreement with oil companies. The current operators who are petitioners in this proceeding have never been guaranteed a 5 to 7 year commitment by their oil and fuel suppliers. One prequalified proposer had obtained a least one letter of commitment from a major oil company for six and seven year terms. In one of the preproposal questions regarding the reasonableness of the length of the required supply commitment, the DOT responded: "The proposer should indicate in his proposal what is reasonable in the oil industry, i.e., a one year, two year, or three year lease, etc., or the best lease that can be secured from an oil company." The terms of the lease agreement under the RFP require a Holmes Model No. 440W wrecker. Although some of the current operators utilize this model, the DOT, when informed that the 440W wrecker may be obsolete, responded that "the proposers can propose use of an equiva- lent or this model number with appropriate attachments to ensure compatibility with latest model vehicles." Previously submitted proposals may be modified at any time prior to the proposal's due date, but modifications will not be considered after that date. The DOT does reserve to itself the right to negotiate certain changes and resolve questions with the successful bidder relating to the final lease agreement. However, this reservation is limited. There can be no substantial changes in the general plan or character of the work such as to evade the competitive process. Actual and prospective proposers were notified in the cover sheet attached to the RFP that disputes as to the reasonableness, necessity or competitiveness of the terms and conditions of the RFP could be resolved by filing a protest in accordance with Section 120.53(5), Florida Statutes, and applicable agency rules. In the questions and answers provided to all qualified proposers, the DOT stated that protests concerning the RFP could be handled differently from the Section 120.53(5) procedure for protests of competitive bidding, and would be adjudicated like all agency decisions affecting substantial interests under the provisions of Section 120.57. Qualified proposers were also advised that the DOT would rely upon Department of General Services' Chapter 13A-1, Florida Administrative Code, where it pertains to bid invitations. The DOT has not promulgated separate rules for the instant request for proposal process. As indicated above, it has instead stated its intent to rely upon Chapter 13A, the Department of General Services rules, in its administration of the present RFP process. The petitioners currently have pending in the Circuit Court of the Second Judicial Circuit for Leon County (Case No. 86-3546) a declaratory judgment suit for statutory interpretation of Section 338.235, Florida Statutes. The primary issue in that proceeding is whether the Legislature required the DOT to adopt rules before utilizing the RFP process for obtaining service station operations on the Turnpike.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition for hearing be DISMISSED, and that the Department of Transportation reschedule the proposal deadline after reasonable notice to all prequalified proposers. Respectfully submitted and entered this 17th day of February, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3732 The proposed findings of fact submitted by the petitioners and the respondent have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below. Petitioner Page 4, last 2 sentences: Rejected; irrelevant and immaterial. Page 6, last paragraph through page 7 through 1st full paragraph: Rejected; not supported by competent, substantial evidence, and argumentative. Page 7, 2nd full paragraph: Rejected; see Finding of Fact 10. Page 8, last sentence of 1st paragraph: Rejected; argumentative. Page 8, 2nd paragraph: Rejected; irrelevant and immaterial. Page 9, subsection c: Rejected; irrelevant and immaterial to the issues in dispute. Respondent #2, beyond 1st two sentences: Rejected; irrelevant and immaterial. #3: Rejected; irrelevant, immaterial and argumentative. #7: Rejected in so far as it contains argument of counsel and legal conclusions as opposed to factual findings. #8: Same as above. #11, 2nd paragraph: Rejected insofar as it includes legal conclusions as opposed to factual findings. #12, 1st paragraph: Rejected; irrelevant and immaterial. #12, 2nd paragraph: Rejected; argumentative. #13, 2nd paragraph: Rejected; argumentative. COPIES FURNISHED: Paul D. Newnum, Esquire Giles, Hedricks & Robinson, P.A. 109 E. Church Street, Suite 301 Post Office Box 2631 Orlando, Florida 32802 Judy Rice and Linda G. Miklowitz, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301 James J. Richardson, Esquire Route One, Box 12669 Tallahassee, Florida 32317 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner deals in fuel oil. It buys fuel oil from several wholesalers and sells it at retail, mainly to people who use fuel oil for heating purposes. Petitioner operates a low pressure pump on its premises for pumping fuel oil from a ten thousand gallon tank into five gallon cans and similar containers brought to the pump by its customers. At peak demand, the ten thousand gallon tank supplying this pump had to be refilled twice a week. In general, however, during the cold season, the tank was refilled only every other week or less often still. No fuel oil was ever pumped from the low pressure pump into any motor vehicle. Petitioner also maintained two big dispersing pumps for filling its tank trucks with fuel oil and a gasoline pump for fueling the truck engines. The trucks were equipped with pumps for emptying their fuel oil tanks, which pumped at the rate of forty gallons per minute. Petitioner advertised home delivery of fuel oil in the newspaper, and dispatched its trucks in response to the resulting telephone calls. In addition to delivering fuel oil for home heating purposes, petitioner occasionally sold larger quantities to fellow fuel oil dealers and to other commercial concerns. In February, March and April of 1974, petitioner sold particularly large quantities of fuel oil to Tampa Electric Company. During the period covered by the audit, petitioner sold from 50,000 to 70,000 gallons to other fuel oil dealers. Petitioner did not get resale certificates from its commercial customers, but Mr. Hayes, until recently petitioner's proprietor, required dealers to show him their dealer's licenses and he copied the dealers' license numbers onto the invoices. In March of 1976, Mr. Donald E. Snyder, a tax examiner in respondent's employ, began auditing petitioner's books. At this time most of petitioner's records were in Orlando in the custody of the Federal Energy Administration. Subsequently, some, but not all, of these records were returned to petitioner. In an effort to reconstruct records which were unavailable, Mr. Snyder contacted petitioner's suppliers and examined their records of sales to petitioner. On January 2, 1977, Mr. Hayes and Mr. Snyder took an inventory of petitioner's fuel oil. Mr. Snyder used this information as well as what records petitioner was able to furnish him, and concluded that petitioner had sold, during the audit period, two thousand four hundred seventy-nine (2,479) gallons of fuel oil to persons or concerns who were users of fuel oil for non-exempt purposes. Written on the invoices evidencing these sales, however, was the phrase "non-road use" or words to that effect. The limited materials with which he worked gave Mr. Snyder no indication as to the disposition of an additional two hundred fifty- eight thousand three hundred forty (258,340) gallons of fuel oil. Although Mr. Snyder approximated petitioner's sales month by month, these figures were unreliable because of certain erroneous assumptions, notably the assumption that petitioner never used additional storage facilities.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent abandon its notice of proposed assessment, as revised. DONE and ENTERED this 10th day of January, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. James P. LaRussa, Esquire Flagship Bank Building, Suite 416 315 East Madison Street Tampa, Florida 33602 Mr. Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32304
Findings Of Fact Frank Pope incorporated Porcine Motors Inc., in 1972, and has operated a used car lot at 16928 South Dixie Highway under that name since that time. He also leases cars. In 1974 the annual corporate report was not filed by Perrine Motors Inc., and the corporation was dissolved, by proclamation. Pepe was unaware that his corporation had been dissolved. In about 1978, Pepe leased part of his used carlot to James P. Fashik, who also sold used cars under the name of "Jamiel." This lease extended until 1980, when Fashik's sister, on October 1, 1980, obtained a corporate charter in the name of Perrine Motors, Inc., and opened a used car lot et 17750 South Dixie Highway. This lot is operated by Fashik. The sign on the business at 17750 South Dixie Highway is "Jamiel's at Perrine Motors" with the same size lettering throughout except for "at", which is smaller lettering. At all times from 1972, until recently, the signs at the used car lot at 16928 South Dixie Highway read "Perrine Motors." After obtaining the corporate name, "Perrine Motors, Inc.," the new corporation advised Pepe that he could no longer use that name. On November 17, 1980, Pepe was issued a corporate charter in the name of "Frank Pepe's Perrine Motors, Inc." It is this name that Petitioner seeks to have rescinded. To prove the deceptive similarity of these names, Petitioner called three witnesses besides Fashik. Ludwig Blaha purchased two cars from Jamiel while he was located at 16920 South Dixie Highway and attempted to call him after his relocation to explain he would be late for a monthly payment. He used the phone number on the card he obtained from Jamiel and testified the phone was answered by someone at Pepe's who said, "Jamiel is dead." The phone number on the card was Fashik's number which did not stay at 16928 South Dixie Highway after Fashik left. When Blaha drove down South Dixie Highway, he readily found Jamiel at his new location. Jack Coler was advised that Fashik needed an accountant and attempted to call him for an appointment. He looked in the yellow pages of the telephone directory and called the number listed for Perrine Motors. This number was answered at Pepe's. Coler then drove to Fashik's business location at 17750 South Dixie Highway. Michael Johnson, in April, 1981, left a deposit check at Perrine Motors, Inc., on a car he was interested in. He shortly thereafter changed his mind and attempted to call Perrine Motors, Inc. to toll them not to deposit his check. He called the number in the phone book and got Pepe's. He dialed information and called the number given. He again got Pepe's. He then drove down to Perrine Motors, Inc. at 17750 South Dixie Highway. The yellow pages section of the Miami telephone directory was printed before Perrine Motors, Inc. was incorporated October 1, 1980. It was sometime later before the necessary information was presented to the telephone company so the correct phone number for Perrine Motors, Inc. could be obtained from the information operator. The signs at 16928 South Dixie Highway were not changed to read "Frank Pepe's Perrine Motors" until after April 1 1981 although Pepe testified he contracted with a painter to change the signs shortly after he incorporated on November 17, 1980. While operating his used car business at 16928 South Dixie Highway, Fashik was using Pepe's address, premises and license. He now claims that after he acquired the right to use the name "Perrine Motors, Inc.", the name "Frank Pepe's Perrine Motors, Inc." is deceptively similar to "Perrine Motors Inc." As a result of this similarity, some of his advertising benefits Pepe, some of his supplies and billings are misdirected, and the telephone book shows Perrine Motors located at Pepe's address. At the time of the hearing, the yellow pages had not yet been reprinted to correctly reflect the address of Perrine Motors, Inc. at 17750 South Dixie Highway, but when next reprinted, it will contain the correct telephone number and address.
The Issue Whether the petition should be dismissed for failure to comply with Section 120.53(5)(b), Florida Statutes.
Findings Of Fact The Petitioner filed bids for ITB No. 4-600-370-K which, if responsive, were the apparent low bid for the Class 3 bid and next to lowest for Class 4 and 5 categories of copier equipment listed in the ITB. [Petition, page 8] On October 16, 1995, the Department posted the intended awards and disqualified all three of Petitioner's bids as nonresponsive. [Petitioner's memorandum in opposition to Respondent's motion for summary recommended order (MEMO), paragraph 1] The Petitioner filed a notice of protest against the disqualification of its bids on October 19, 1995. [MEMO, paragraph 1] The petition for formal hearing was filed with the Department on October 30, 1995. [MEMO, paragraph 1] The petition for formal hearing alleged, in part: SUMMARY OF GROUNDS FOR PROTEST ...The Division of Purchasing ("Division") disqualified all three of Petitioner's bids on vague grounds identified by three words: "Disquality -- Manufacturers Certification. " See Ex. 3 hereto at 1. There are two provisions in the ITB that require the "certification" of the Original Equipment Manufacturer ("OEM"). See Ex. 1 hereto at 3 and 32. Since the State has not seen fit to adequately identify which provision(s) are at issue, Petitioner is required to address both provisions that might apply. Both of these requirements are completely arbitrary, irrational and, most importantly, anticompeti- tive, for the reasons described further in Section 3 below. The "certification" require- ments are arbitrary and irrational because they are not designed to obtain the equipment at issue for the lowest price. Indeed, they ensure that the State will pay higher prices than it would without the requirements. Neither are the "certification" requirements rationally related to the quality of the equip- ment that was bid by Petitioner or the other bidders, including the OEMs. Finally, these requirements are blatantly anticompetitive be- cause they place the right to exclude all other competitors in the hands of the OEMs, which can deny such certification with impunity, ensuring that only those OEM bidders will prevail, as was the outcome here. This preferential treat- ment not only runs counter to the express intent of the legislature to promote free and open competition, it also raises serious anti- trust concerns. Disqualification of Petitioner's bids on the grounds presented by the Division should be reversed and the contract awards should be adjusted accordingly. * * * The preferential treatment provided to Xerox, Kodak, and other OEMs by insertion of the "certification" requirements in this ITB is consistent with a longstanding history of such anticompetitive treatment of independent providers of the equipment and service at issue, resulting in higher prices (but not necessarily higher quality) for the State's taxpayers. Petitioner's recent experience in dealing with the State on these matters is also consistent with this pattern of bias toward OEMs. * * * 3. BASIS OF PROTEST A. The Division of Purchasing Has Acted Arbitrarily and in Restraint of Trade * * * Petitioner has identified two potentially applicable provisions that the Division could be relying on for its disqualification decision. First, in the ITB's definition of "acceptable equipment" it states that bids for classes 3, 4, 5 and 6 shall be for "new and newly remanu- factured equipment only," and that "newly remanufactured equipment must be certified by the manufacturer." Ex. 1 at 3. This pro- vision also states that "remanufactured" equip- ment is not acceptable. Second, the ITB requires certification by the manufacturer as to the copy speed, recommended monthly copy volume, and other basic specifications of the equipment models being bid. Ex. 1 at 32. Both of these provisions are irrational, arbitrary, and clearly anticompetitive. * * * The Division's definition of acceptable equipment bears no relationship to the actual remanufacturing processes used by Petitioner or Xerox. Even if Xerox certifies its own "remanufactured" equipment, the State only receives assurances that the remanufacturing process used by Xerox meets certain standards. Petitioner certifies that its equipment meets certain quality and performance standards, just like Xerox does. There is no rational reason why self-certification of the equipment at issue would provide any different assurances of quality for the State. * * * 2. Certification by the OEM of Copy Speed and Other Basic Specifications Petitioner provided a sworn verification that its equipment meets the copy speed, recommended monthly copy volume, and other minimum specifications for each category of equipment for which it submitted bids. Its certification is based on the same procedures used by Xerox to certify its own equipment. There is no rational reason why that certifi- cation cannot meet the needs of the State. To insist upon certification only from the OEM is an arbitrary and anticompetitive requirement not related to quality or designed to achieve the lowest price. * * * This requirement also is blatantly anticompet- itive. Petitioner is in direct competition with Xerox for the sale and maintenance of the equipment at issue. It is irrational for the Division to expect Xerox to provide such certification to its competitors, even as to this type of uncontroversial information unless award to Xerox is the intended goal. The ITB required a manufacturer's certification which specified a notarized certification of the copy speed, recommended monthly copy volume, and other minimum specifications for the equipment bid. [Exhibit 1 to the Petition] The bids submitted by Petitioner included a certification executed by Advantage's president, Jane Beekmann. [MEMO, paragraph 3] The equipment specified by Advantage was manufactured by Xerox but was remanufactured by Advantage. [MEMO, paragraph 3, and as represented by Petitioner's counsel] Advantage maintains it may certify its remanufactured equipment in the same manner that Xerox certified its equipment. [MEMO, paragraph 5] The ITB provided, in pertinent part: ACCEPTABLE EQUIPMENT ...Bids for Classes 3, 4, 5 and 6 shall be for new and newly remanufactured equipment only. In Classes 3, 4, 5 and 6 newly remanu- factured equipment must be certified by the manufacturer. The ITB further provided, at page 32: This is to certify the manufacturer's recommended monthly volumes and certified copy speed (specify from the glass or document feeder) for the machines listed below. Monthly volume indicates the number of copies which can be made per month by the machine without causing excessive downtime. It does not necessarily denote the maximum number of copies that can be made by that particular machine. NOTE: This must be executed by the manu- facturer and must be notarized. Dealers are not authorized to sign this certification form. Failure to submit this certification with your bid shall result in disqualification of bid. The certifications provided by Petitioner identified the machines proposed by Advantage as the Xerox 5100, the Xerox 1090 w/finisher; and the Xerox 1075 w/finisher. Each of these certifications identified Advantage as the name of the manufacturer. [Exhibit C to the motion not disputed by Petitioner] Petitioner did not manufacture the Xerox 5100, the Xerox 1090 w/finisher; or the Xerox 1075 w/finisher. [Petitioner represents it is the remanufacturer, MEMO, paragraph 2] Petitioner maintains, and for purposes of this order it is accepted, that Advantage is the remanufacturer of the Xerox 5100, the Xerox 1090 w/finisher; or the Xerox 1075 w/finisher. [MEMO, paragraph 2] Petitioner did not timely challenge the specifications for ITB No. 4- 600-370-K.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of General Services enter a final order dismissing the petition of Advantage as an untimely challenge to the ITB specifications. DONE AND ENTERED this 5th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 5th day of January, 1996. COPIES FURNISHED: William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Cindy Horne Assistant General Counsel Department of General Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 J. Daniel Leftwich Berry & Leftwich 2000 K Street, Northwest. Suite 450 Washington, D.C. 20006 James Leech Post Office Box 7473 Fort Lauderdale, Florida 33338 Lawrence P. Stevenson Hume F. Coleman HOLLAND & KNIGHT Post Office Drawer 810 Tallahassee, Florida 32302
Conclusions . This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Linzie F. Bogan, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal of Intent to Establish Dealership, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Power Group International, LLC, and Reliable Power Equipment, LLC d/b/a Coastal Carts to sell low-speed vehicles manufactured by Tomberlin Automotive Group, (TOMB) at 16277 South Tamiami Trail, Suite A, Fort Myers, Florida 33908. Filed September 6, 2012 2:11 PM Division of Administrative Hearings “ DONE AND ORDERED this C day of September, 2012, in Tallahassee, Leon County, Florida. —m P00 J ulie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division of Motorist Services this G day of September, 2012. Webi: Viranok AO Mad — Nalini Vinayak, Deater Hicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/wev Copies furnished: Elinore Hollingsworth Power Group International, LLC 3123 Washington Road Augusta, Georgia 30907 Jay Stewart A Plus Carts and Parts 16100 San Carlos Boulevard Fort Myers, Florida 33908 Donald B. Imbus Reliable Power Equipment, LLC 16277 South Tamiami Trail, Suite A Fort Myers, Florida 33908 Linzie F. Bogan Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue On February 24, 1987, the Petitioner posted a bond in the amount of $844.80 in lieu of confiscation of 1600 gallons of diesel fuel that was found to be below standard. The ultimate issue in this case is whether some or all of the bond should be refunded to the Petitioner. At the hearing the Petitioner testified on his own behalf. He did not call any other witnesses and did not offer any exhibits. The Respondent presented the testimony of two witnesses and offered one composite exhibit which was received in evidence without objection. Neither party requested a transcript of the hearing and both parties waived the right to file proposed recommended orders. Several days after the hearing, the Petitioner mailed to the Hearing Officer a copy of a letter written by an employee of the Department of Agriculture and Consumer Services regarding this matter. I have not based any findings of fact on the information in that letter because it was not received in evidence at the time of the hearing
Findings Of Fact Based on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. On November 17, 1986, an employee of the Department of Agriculture and Consumer Services (hereinafter "Department") inspected various fuels offered for sale at the Mobile Service Station located at 1-75 and State Road 236. The inspection revealed that a quantity of diesel fuel offered for sale at that service station was below standards. On November 18, 1986, an employee of the Department returned to the service station described above and issued a Stop Sale Notice regarding the substandard diesel fuel, placed a seal on the pump to prevent further retail sale of the substandard diesel fuel, and took a second sample of the diesel fuel for the purpose of confirmation testing. The second sample of the diesel fuel was also found to be below standards. The service station described above is owned by the Petitioner. The Petitioner leases the station to an operator and delivers the fuel that is sold at the service station. On November 18, 1987, when the Stop Sale Notice was issued, the person on duty at the service station called Petitioner's office to advise Petitioner that the Stop Sale Notice had been issued and that the diesel pump had been sealed. Mr. Glenn Jones, the president of Petitioner, was not at the office at the time of that call, but was informed about the Stop Sale Notice within the next few days. On February 24, 1987, another representative of the Department visited the subject service station and on that day Mr. Glenn Jones signed a Department form titled Release Notice or Agreement and posted a bond in the amount of $844.80. The terms and conditions of the bond are not part of the evidence in this case. Thereupon, the Department removed the seal from the diesel pump at the subject service station and the 1600 gallons of diesel fuel were released to the Petitioner. During the period between November 18, 1986, and February 24, 1987, diesel fuel could not be sold to retail customers at the subject service station because the diesel fuel pump was sealed. This inability to sell diesel fuel to retail customers for over 90 days caused the service station to lose a substantial amount of business. In the normal course of events, within no more than one week from the time a Stop Sale Notice is issued the owner of substandard fuel can arrange to post a bond and have the seal removed from the fuel pump. It is very unusual for it to take more than 90 days as it did in this case. Several circumstances contributed to the unusual delays in this case. Among those circumstances were the fact that during the period from November 18, 1986, to February 24, 1987, both Mr. Glenn Jones and the Department employee who was supposed to follow up on this matter suffered from serious illnesses. The matter was further complicated by the fact that the fuel samples were taken by a mobile testing unit and the mobile testing unit moved on to another area shortly after the samples in this case were taken. There is no competent substantial evidence in the record of this case regarding the retail price of the substandard diesel fuel which was the subject of the Stop Sale Notice on November 18, 1986, nor is there any evidence as to the amount of such fuel, if any, that was sold to the public.
Recommendation Based on all of the foregoing, it is recommended that the Department of Agriculture and Consumer Services issue a final order in this case to the effect that the petitioner, Glenn I. Jones, Inc., is entitled to a refund of the full amount of the bond it posted on February 24, 1987, in the amount of $844.80. DONE AND ENTERED this 9th day of June, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1987. COPIES FURNISHED: Mr. Glenn I. Jones Glenn I. Jones, Inc. Post Office Box 549 Lake City, Florida 32055 Harry Lewis Michaels, Esquire Senior Attorney Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32399-0800 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800
