Findings Of Fact The Respondent, Michael L. Illes, holds law enforcement certificate number 02-24636. On or about December 1981, while on duty, the Respondent responded to a call from Deborah Raybin regarding a malfunctioning alarm system at her home in Broward County, Florida. At said time, the Respondent was employed by the Broward County Sheriff's Department in the capacity of a deputy sheriff. The Respondent went to the Raybin home in the routine course of his duties. The Respondent admitted having been to the Raybin home after December 1981 in response to further false alarms and on other occasions not related to his duties. However, no competent evidence was introduced that the Respondent harassed Ms. Raybin by going to her home while either on duty or off duty. No evidence was received in support of the allegations that the Respondent, while on duty, went to the Raybin home and offered pornographic movies to Ms. Raybin. The only competent evidence presented was the credible testimony of the Respondent that while at the Raybin house on official business on or about June 19, 1982, he was asked by Ms. Raybin for a video tape. Respondent admitted that on the night of June 23, 1982, he arrived at the Raybin house with said video tape. At that time, prior to his ringing Ms. Raybin's doorbell, Respondent was stopped by his shift supervisor and another officer of the Broward County Sheriff's Department. They were there in response to a telephone call from a person whose identity was not established by competent evidence. The Respondent was out of his assigned patrol zone and had not checked out of his patrol car (unit). While proceeding to the Sheriff's Department prior to the beginning of his shift, Respondent made a traffic arrest of a driver for driving while under the influence. Respondent was involved in booking the arrested driver until after 12:00 midnight on the evening of June 23, 1982. Thereafter, he went to the Raybin house. On the night shift, the policy regarding leaving an assigned patrol area was flexible, particularly during those periods in which on-duty personnel were on break or eating. While on break, officers were not required to be in their patrol zones. Respondent would have been entitled to a break at the time he was at the Raybin house. Conflicting testimony was received concerning whether officers were required to check out of their units while on break. The shift supervisor stated that officers were required to check out when on break or at meals. Respondent stated that the night shift officers did not customarily check out on breaks because criminals monitored their radio reports and committed crimes when they knew that the officers were on break or at meals. Neither side could substantiate their testimony with any written policy. No evidence was received regarding when officers would report that they were on break, i.e., when they left their assigned zone, when they arrived at a break location, or when they left their units. Based upon the testimony received and the fact that officers wore portable radio units, it is found that officers were required to check out if they intended to be away from their units for more than a few minutes. When stopped by his shift supervisor, the Respondent was wearing his police radio. Respondent's uncontroverted and credible testimony was that he had stopped at the Raybin house on his way to his break location to drop off the tape Ms. Raybin had requested and had not intended to remain at the Raybin house longer than was necessary to drop off said tape.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed against the Respondent, Michael L. Illes, be dismissed. DONE and RECOMMENDED this 22nd day of August, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1983. COPIES FURNISHED: William H. Ravenell, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Charles T. Whitelock, Esquire 1244 SE Third Avenue Fort Lauderdale, Florida 33316 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission 408 North Adams Street Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a (1) 1,000 ohm resistor 2 watt, when in fact it was not replaced; in violation of Section 468.159(1)(d), Florida Statutes. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a "Rebuilt Tuner", when in fact the work was not performed; in violation of Section 468.159(1)(d), Florida Statutes. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976,by charging Joseph Scozzafava for replacement of two (2) 6GH8 tubes, when in fact they were not needed; in violation of Section 468.159(1)(d) , Florida Statutes. The charging document in this cause, to wit, the Notice to Show Cause, had originally charged Henry Adkins and Sharon Adkins with the failure to identify the State Registration on invoice #3078 dated January 3, 1976, as required by Rule 7B-2.12(b), Florida Administrative Code. This count of the Notice to Show Cause was voluntarily dismissed by the Petitioner at the commencement of the hearing.
Findings Of Fact This cause comes on for consideration based upon the Notice to Show Cause of the Petitioner, which is complaint No. 108000-51 before the Petitioner, State of Florida, Department of Business Regulation, Division of General Regulation. The complaint is addressed to the Respondents, Henry Adkins and Sharon Adkins, his wife, who trade as Lauderdale Lakes T.V. and is directed to the following business entities owned by Henry Adkins or Henry Adkins and Sharon Adkins. The corresponding numbers which are reported here pertain to the license numbers assigned by the Petitioner to Henry Adkins or Henry Adkins and Sharon Adkins. Those licenses are for All-State T. V., No. 5079; Tower T.V., No. 6108; Lauderdale Lakes T.V., No. 5069; Inter-City T.V., No. 2895; X-Ray T.V., No. 2914; and M & H Electronics., No. 4854. Henry Adkins appears as the owner on all licenses. Sharon Adkins appears as the co-owner on the license for M & H Electronics, No. 4854. Before presenting the case for consideration, the parties entered into these factual stipulations: The Division of Administrative Hearings has jurisdiction to consider this case. The Notice of Hearing in this cause is timely. Henry Adkins is listed in the six licenses referred to above and each of those licenses have a mailing address of 3504 NW 10th Avenue, Fort Lauderdale, Florida 33309. In addition, those licenses referred to above and the ownership stated are correct as to the existence of the entity, the ownership and the number assigned to the various entities by the Petitioner. The invoice of Lauderdale Lakes T.V., No. 3078, is authentic. The State of Florida, Department of Business Regulation, Division of General Regulation is the owner of a 1972 RCA color television which is the subject of this case. Three television tubes, to wit: two 6GH8 tubes, and one 6-CB6 tube are the property of the State of Florida, Department of Business Regulation, Division of General Regulation. Joseph Scozzafava is not the owner of the subject 1972 RCA color television, nor was the money paid for the repair of the said television money of Mr. Scozzafava. The invoice referred to above may be found as Petitioner's Exhibit No. admitted into evidence. The television set is Petitioner's Exhibit No. 2 admitted into evidence, and the three tubes are Petitioner's Composite Exhibit No. 3 admitted into evidence. In late January, 1976 employees of the Petitioner, operating on complaints, prepared a television set for purposes of ascertaining whether or not the Respondent, Henry Adkins, d/b/a Lauderdale Lakes T.V., was. operating in violation of Chapter 468, Florida Statutes. In furtherance of their investigation they took tile 1972 RCA television set which has been mentioned as being Exhibit No. 2, and played the set for a couple of days to determine whether or not it was in good working order. From an observation point of view, there were no malfunctions during the test period. In the color circuit to include all the major components such as the tuner, transformer, and resistors, all items checked out as operating properly. In addition, 15 tubes within the set were checked by tube fester and the tubes proved to be acceptable. (The tube tester had not been certified.) After checking the set out, Frank Butler, an investigator with the Petitioner and Certified Electronics Technician, overloaded a tube within the color circuit. The specific tube is a 6-CB6 burst amplifier. The effect of overloading this tube was to remove the color from the set, such that it would play only in black and white. The created malfunction in this tube did not have an adverse effect on the other components within the set. The employees of the Petitioner also marked a number of the tubes in the set by crimping the connectors on the tubes by way of identification. An operative 6-CB6 burst amplifier was then inserted in the set and the set was played again for two days, within which time it operated successfully. The Petitioner's employees then contacted one Joseph Scozzafava, an employee with the Department of Business Regulation, Division of Beverage. The purpose of the contact with Scozzafava was to allow him to take the television set owned by the State and to contact Lauderdale Lakes T.V. for purposes of having that organization make repairs on the subject television. The idea was that the defective 6-CB6 tube would he left in the set so that the television only played black and white. When they took the set to Scozzafava in late January, 1976, they showed him that the set operated on all local-stations and then removed the operative 6-CB6 tube and replaced it with the inoperative tube and left that tube in the set. The Petitioner's employees then instructed Scozzafava to call Lauderdale Lakes T.V. to have the repairs effected. To achieve this end, Scozzafava was paid $100.00 by the Petitioner and in turn would write a check from his own account for the amount of the total cost of repairs. The set was picked up from Scozzafava on January 27, 1976. The pickup was made by an employee of the Respondent, Henry Adkins, in a truck listed to the license, Inter-City T.V. The television set was repaired under an invoice of Lauderdale Lakes T.V., a license held by Henry Adkins. That invoice is the Petitioner's Exhibit No. 1 admitted into evidence. The facts repeal that two 6GH8 tubes were replaced by employees of the Respondent, Henry Adkins, and charged to Scozzafava, when it was in fact unnecessary to replace those tubes. Those tubes may be found as part of Petitioner's Exhibit No. 3 admitted into evidence, and when tested subsequent to the time the television set was returned to the employees of the Petitioner, were found to be operable over a period of one or more days arid when played during the course of the hearing, were found to be in good operating condition. The charges and the indication of replacement may be found in the invoice and the invoice was executed by an employee of Henry Adkins, the Respondent. That employee was working for Lauderdale Lakes T.V. The invoice also reflects the replacement of one 1,000 ohm 2 watt resister, when in fact no replacement of the resister occurred. Scozzafava was charged for this item which was not replaced. Finally, there is an indication that the tuner within the set was rebuilt and a charge made to Scozzafava for that service. The Petitioner's employees had placed wax and tape across the shield which covers the inner parts of the tuner and that wax and tape had not been disturbed during the pendency of the time which the set was with the employees of the Respondent. The tuner was not rebuilt, notwithstanding the claim by witnesses of the Respondents, to the effect that certain repairs could have been made to the surface of the tuner without the necessity to remove that shield. The evidence leads to the conclusion that the tuner was not rebuilt. In summary, Scozzafava paid $88.45, to Lauderdale Lakes T.V. from funds provided him by the Petitioner. Of that amount paid, $8.40 was paid for two 6GH8 tubes; $6.25 was paid for the one 1,000 ohm 2 watt resistor which was not installed and $21.00 was paid for rebuilding the tuner, when in fact the tuner was not rebuilt. Some portion of the labor charge of $32.50 went toward these items; however, it is unclear what portion of that charge pertains to those items. As briefly mentioned before, the television set was returned to Scozzafava, who in turn gave it to the Petitioner's employees, who kept the set until such time as the case was brought. Employees of the Respondent, Henry Adkins, driving an Inter-City T.V. truck, returned three tubes, one 6-CB6 and two 6GH8; they did not return a 1,000 ohm 2 watt resister. The balance of the $100.00 paid to Scozzafava for the purposes of assisting the Petitioner was returned to the Petitioner. There was no testimony to the effect that either Henry Adkins or Sharon Adkins were directly involved in the pick-up or repair of the television set. Sharon Adkins was involved in the billing process, based upon a cost estimate given to Scozzafava in the amount of $85.00. Both Respondents indicated that they make a background check of all employees hired, for purposes of determining the employees' integrity. The Respondents, through Sharon Adkins, also indicated that they had made attempts to locate all employees who were involved with the pick-up or repair of the television set and were unsuccessful in locating them due to the death of one employee and the inability through use of a private detective to locate the other individuals. Henry Adkins also indicated that he had fired employees in the last two years because those employees put in unnecessary parts or overcharged for parts. The Petitioner has charged the Respondents with committing acts of fraud and dishonest dealings by charging Joseph Scozzafava for the one 1,000 ohm watt resister; charging him for the rebuilt tuner and replacing the two 6GH8 tubes when in fact they were not needed. To the Petitioner, these acts were in violation of Section 468.159(1)(d), Florida Statutes. That provision reads: "In violation of registration; civil penalties.- The Division may refuse to validate or may invalidate temporarily or permanently the registration of a service dealer for any of the acts or omissions related to the conduct of his business done by himself or any employee, partner, officer, or member of the service dealer; (d) Committing any other act which constitutes fraud or dishonest dealing." By charging for the two 6GH8 tubes that were not needed; by failing to replace the one 1,000 ohms 2 watt resister, and charging for such replacement and for charging to rebuild a tuner which was not rebuilt, the employees of the Respondents are guilty of fraud and dishonest dealing. For those violations and under the exact language of the statute, the Respondents would appear to be guilty of a violation of Section 468.159(1)(d), Florida Statutes. However, the law does not contemplate that an employer is the absolute insurer of all the acts of his or her employees. Absent a showing of direct involvement on the part of the Respondents in the acts which constituted fraud and dishonest dealing, the Petitioner must show negligence or a lack of due diligence by the Respondents, In the Respondents' supervision of the employees who have committed the acts of fraud and dishonest dealing. (See Taylor v. State Beverage Department, 194 So.2d 321 (2nd DCA, 1967).) An isolated incident such as the one in the case under consideration does not satisfy the requirement that the Petitioner show negligence or a lack of due diligence on the part of the Respondents. Therefore, the Petitioner has failed to establish a violation on the parts of the Respondents as it pertains to the electronic service dealer registration Nos. 5069, 5079, 2895, 4854, 6108 and 2914, which are held by Henry Adkins and Sharon Adkins and Henry Adkins, solely. Full consideration has been given to the proposed findings of facts and conclusions of law submitted and when appropriate are incorporated in this Recommended Order.
Recommendation It is recommended that the Notice to Show Cause against Henry and Sharon Adkins, which is recorded as complaint No. 108000-51, pertaining to electronic service deal registration Nos. 5069, 5079, 2895, 4854, 6103 and 2914 be DISMISSED. DONE AND ENTERED this 30th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard E. Gentry, Esquire Staff Attorney State of Florida, Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Robert D. Hurth, Esquire 2425 East Commercial Boulevard Marwayne Office Plaza, Suite 101 Fort Lauderdale, Florida 33308
The Issue Whether the demotion of the Petitioner by the Respondent from an Airplane Pilot I to an Engineering Technician II position was supported by competent substantial evidence and complied with the Florida Statutes and rules and regulations.
Findings Of Fact Petitioner John Clarkson was demoted by Respondent Department of Agriculture, Division of Forestry, after Petitioner failed to receive a satisfactory rating after having received ratings of "conditional" for a period of six months. The ratings were discussed and signed by the Petitioner. By certified letter, return receipt requested, dated April 15, 1976, the Petitioner was formally advised that the Commissioner of the Florida Department of Agriculture had approved his Division Director's recommendation that Respondent be demoted. Petitioner filed his appeal of the Respondent's action on May 6, 1976. On May 18, 1976, the Petitioner was notified by the Career Service Commission that his appeal had been accepted. Petitioner twice requested a continuation of the requested administrative hearing and subsequently filed a Motion for Default and Directed Verdict or Judgment on the pleadings. A response was filed and thereafter, the Motion was withdrawn by Petitioner. Petitioner is a 30-year State employee and has served more than twenty (20) years with the Department of Agriculture. He currently is employed by Respondent as an Engineering Technician II. The Petitioner admits that the demotion of Aircraft Pilot I to Engineering Technician II was procedurally correct and the essence of his argument against the demotion is that the Respondent concentrated on finding "little picky things" about the employee and used these to fortress his demotion. Petitioner contends: That matters in the Petitioner's personal record before 1975 should not be considered. That the major allegations of Respondent were related to his non- flying duties and that the demotion concerned his duties as an Airplane Pilot I. That the charges of tardiness, wasting time, inability to perform non-flying duties were, even if supported by competent and substantial evidence, immaterial to the issue. That Petitioner's actions in relation to a ferrying plane trip to California in 1975 did not endanger the life of colleagues or aircraft; that Petitioner was justified in his takeoff from an airport on a hot day and on his leaving the group on its return to Tallahassee on the said trip. That inaccuracies in reporting; fires, which was a major part of his duties, were not confined to Petitioner and that he considered it better to be "safe than sorry" than save a little money when reporting fires, and that further, he "called them as he saw them." That the supervisors and superiors failed to meet with Petitioner as required and were more intent on building up Petitioner's deficiencies than in trying to help him. Respondent contends: That Petitioner failed to follow instructions of his supervisors. Petitioner failed to adequately perform duties as fire control spotter pilot, which resulted in crews being dispatched unnecessarily. That Petitioner's ratings, letters of reprimand, memorandums, throughout his career showed he failed to follow instructions in performing his job adequately. The Hearing Officer further finds: Petitioner presented evidence and testimony relative to his employment prior to 1975. Contrary to the contentions of the Petitioner, the position of Airplane Pilot I includes not only flying duties and responsibilities of the fire patrol, it includes much paper work such as drawing and tracing and revising plans, revising maps, making maps, handling orders, disseminating fire weather forecasts to field offices, and the coordination of related incoming reports. Work with others is an integral part of the employment. An examination of the voluminous records submitted and entered into evidence at the hearing show that the Petitioner has had an employment history of conflict with his employer for a number of years and the same type of criticism continued from year to year up to the date of Petitioner's demotion. The Respondent presented evidence to show that Petitioner had been sent memorandums calling his attention to numerous complaints about the quality of his work and relationship with other people including many other employees of Respondent. Evidence was submitted to show Petitioner's repeated failure to follow instructions of his superiors. Evidence was submitted showing that during the years of Petitioner's employment there were some "conditional" ratings; some ratings below satisfactory; one previous demotion; memorandums citing Petitioner for failure to perform duties adequately; complaints from passengers, which ultimately resulted in the revision of Petitioner's duties so that he did not carry passengers. Taken as a whole, the various memorandums concerning Petitioner show that contrary to the contention of Petitioner, the supervisors and superiors endeavored to work with Petitioner and were consistently trying to fit him into the work organization so that he could work within his capacities. Other employees were moved within the Division to fill in where the Petitioner was deficient. The charges of tardiness, wasting time, poor work product, go directly to the employment of the Petitioner and no competent evidence was submitted to show that these charges were inaccurate. It was not conclusively shown that Petitioner actually endangered the lives of colleagues or aircraft on a September, 1975 flight to California from Florida during his ferrying duties, however Petitioner failed to follow prior instructions and caused confusion among the other members of the group on that trip. On one occasion he left the group without permission of the designated leader and the group was forced to change its plans and land at a different location. Petitioner failed to follow instructions, left the group and teak off and had to be called back. On the return trip to Tallahassee he left the group and returned to Tallahassee before the others contrary to flight plans that the group remain together. A hot day and eagerness to return home from a trip is insufficient reason to disobey instructions of supervisors. The fire logs show that Petitioner made relatively more errors in reporting fires than the other reporters and evidence was shown that errors wasted money and caused loss of needed services elsewhere. The report of fires was a central part of Petitioner's employment duties. Petitioner is an experienced and evidentally, good pilot, but the evidence shows he fails to follow closely the instructions of his supervisors in relation to his duties and is deficient in his non-flying work. He fails to work well with other employees.
Recommendation Affirm the action of the Agency in demoting Petitioner. DONE and ENTERED this 13th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Walter Kelly, Esquire Mrs. Dorothy Roberts Department of Legal Affairs Appeals Coordinator The Capitol Building Department of Administration Tallahassee, Florida 32304 Room 530 Carlton Building Tallahassee, Florida 32304 Clinton H. Coulter, Jr., Esquire DUVALL & COULTER Mr. Jerry Gullo 118 S. Gadsden Street Department of Agriculture Tallahassee, Florida 32301 Mayo Building Tallahassee, Florida 32304
The Issue Whether TestCorp's bid was contingent on DHSMV's entering into a maintenance and service contract with TestCorp? Whether TestCorp's offer of a 12-month cost-free warranty was contingent on DHSMV's entering into a maintenance and service contract with TestCorp? Whether TestCorp failed to offer a 12-month warranty at no charge? Whether DHSMV impermissibly proposes to consider the cost of maintenance in awarding the bid? Whether TestCorp's failure to register to do business in Florida until June 20, 1986 precludes an award to TestCorp? Whether TestCorp's failure to offer all right, title and interest in and to its system renders its bid unresponsive? Whether TestCorp failed to provide sufficient technical information to show that its system would meet specifications? Whether TestCorp failed to furnish the names of three customers with like or similar equipment? Whether TestCorp failed clearly and concisely to describe variances between its bid and the specifications set out in the ITB? Whether Juno's proposal has bilingual capability consistent with clearly visible images even on handicap display units?
Findings Of Fact ITB No. 2887-85 (Rebid) is in evidence as Joint Exhibit No. 1. The parties stipulated that pages 26 through 34 of Joint Exhibit No. 3, which replace two of the original ITB pages and consist otherwise of bidders' questions about the ITB and DHSMV's answers, also constitute part of the invitation to bid, whose purpose "is to secure Automated Driver Testing Equipment for the Florida Division of Driver Licenses." Joint Exhibit No. 1, p. 2. ITB No. 2887-85 (Rebid) calls for ten testing machines to be tied to an examiner's console in each of five systems, and specifies that the testing systems have both "English and foreign language capability," Joint Exhibit No. 1, p. 13, 3.3.02, that they "function in such a manner that controls and operations for both examiner and examinee are minimal," Joint Exhibit No. 1, p. 14, 3.4, and that they be "capable of presenting a visual question test" to all examinees, including handicapped (seated) examinees. With each system, ITB No. 2887-85 (Rebid) as modified in response to questions from TTSS, Inc., calls for 80 questions, consisting of "30 operator questions, 30 chauffeur questions, and 20 road signs." Joint Exhibit No. 3, p. DHSMV would administer 40-question tests to applicants for operator's licenses and to applicants for chauffeur's licenses, each consisting of "20 written questions and 20 road signs." Joint Exhibit No. 3, p. 34. The specifications also call for "the highest quality professional duplicating film" and specify that "[n]o visible deterioration . . . be noticeable in the quality of the projected image during the warranty period." Joint Exhibit No. 1, p. 23, 4.6.2(c). ITB No. 2887-85 (Rebid) calls for "[c]omplete product information, including technical and descriptive literature sufficiently detailed to substantiate [that] the system offered meet[s] or exceed[s] the specifications." Joint Exhibit No 1, p. 3. ITB No. 2887-85 (Rebid) requires that each bidder use the "bid forms furnished by this Department," Joint Exhibit No. 1, p. 5, 2.21A, see Joint Exhibit No. 1, p. 1, which both TestCorp and Juno did. While warning that "[b]ids containing terms and conditions conflicting with those contained in this Invitation to Bid shall be rejected," Joint Exhibit No. 1, p. 6, 2.24, the ITB also reserves to DHSMV the right to waive "minor deviations or exceptions . . . defined as those that have no adverse effect upon the State's interest and would not affect the amount of the bid by giving a bidder an advantage or benefit not enjoyed by other bidders." Joint Exhibit No. 1, p. 5, 2.18. In a related provision, the ITB requires that any nonconformity "be clearly and concisely described with a request for variance . . . accompanied by a full explanation as to the advantages and/or disadvantages." Joint Exhibit No. 1, p. 5, 2.19. Bids Submitted DHSMV received four bids in response to ITB No. 2887-85 (Rebid). Low at $94,470.00 was Computer Specialties, Inc., but DHSMV deemed this bid unresponsive and Computer Specialties, Inc., filed no notice of protest. Second low was Juno's alternate bid of $237,795.00, which tracked the bid DHSMV now proposes to accept, except that the alternate bid did not provide for a performance bond. DHSMV rejected Juno's alternate bid as unresponsive, and Juno has not questioned this determination. Third low was TestCorp's bid at $242,000, and Juno's bid was high at $246,795.00. Juno's Bid The parties stipulated that the lack of bilingual capability would be material, but did not agree that Juno's system was deficient in that respect (T.73). Juno's bid states that each display unit "shall utilize an unnotified Kodak Ektagraphic Slide Projector Model E-2 . . . [and] shall be capable of displaying up to eighty (80) separate question slides." Joint Exhibit No. 3, p. The sample slide representations Juno furnished with its bid depicted traffic scenes and accompanying questions in English only. Joint Exhibit No. 3, pp. 111, 111a. Foreign language capability would require either separate slides with foreign language questions or the same slides with questions in English as well as in foreign language(s). In the event of separate slides, one machine of the ten called for (in each of the five systems specified) could be dedicated to each foreign language in which the tests were to be administered, or foreign language slide trays could be substituted as needed. TestCorp's Bid Set out as a general condition in ITB No. 2887-85 (Rebid) was the following: SERVICE AND WARRANTY: Unless otherwise specified, the bidder shall define any warranty service and replacements that will be provided during and subsequent to this contract. Bidders must explain on an attached sheet to what extent warranty and service facilities are provided. Joint Exhibit No. 1. In the event of a conflict between a general condition and a specification, the ITB states that the specification is to take precedence. Among the specifications included in ITB No. 2887-85 (Rebid) were these: 2.1 Bidder must submit copy of maintenance and service contract and costs with bid. (Informa- tion on maintenance during warranty and after warranty expires). Joint Exhibit No. 1, p. 4 2.27.2 If maintenance of the equipment is to be the responsibility of the State, training necessary to properly maintain the equipment must also be provided. Joint Exhibit No. 3, p.27 2.30 Warranty - Service - Mai[n]tenance Parts Replacement: Parts determined to be defective must be repaired or replaced at no charge to this Department for a period of twelve (12) months. Labor must be furnished (normal working hours) at no charge to this Department for a period of twelve (12) months. EXCEPTION: It is understood that warranty does not include consumable parts/ supplies. Joint Exhibit No. 3, p.27. 2.31. If a defect in the equipment occurs because of obvious misuse or after expiration of the warranty, vendor or his authorized service representative will make repairs promptly for a period of five years from date of acceptance at a reasonable cost to the purchaser. Joint Exhibit No. 3, p. 28. Maintenance Bidder shall submit a maintenance plan with his bid response. Maintenance should be outlined in a schedule or table showing how and when it is to be performed. If the State must perform its own maintenance, this must be specified. Any replacement parts required to be installed under normal main- tenance procedures must be listed, along with cost, method of delivery, and how installation is to be performed. Bid Award - Special Conditions Cost of maintenance, if applicable, will not considered in award of bid . . . Joint Exhibit No. 3, p. 28. Finally, the specifications provided that the "complete system cost" included a year's spare parts and required each bidder to attach "a list of all equipment, service and spare parts included in his bid for each location." Joint Exhibit No. 1, p. 25. Maintenance and Warranty Tied 11. With reference to specification 2.27.2, TestCorp's bid states, "Maintenance will be the responsibility of TestCorp." Joint Exhibit No. 2, p. Otherwise TestCorp's bid responds to maintenance and service specifications by reference to and inclusion of a form "TestCorp Warranty and PerTest Maintenance Agreement." Joint Exhibit No. 2, pp. 34 through 38. On TestCorp's bid sheet is written, "PLEASE SEE REQUIRED MAINTENANCE AGREEMENT ATTACHED." Joint Exhibit No. 2, p. 25. With reference to specification 2.12, TestCorp's bid states, "Warranty and PerTest Maintenance contract is enclosed." Joint Exhibit No. 2, p. 31. Among the provisions of the form contract are the following: This agreement shall be in effect for 5 years from the date of purchase of the system. Service as described below will be provided at no charge during the "Warranty Period," which is the first year following installation. Joint Exhibit No. 2, p. 34. There is no charge for service under this agreement during the 12 month Warranty Period. During the 48-month pre-test maintenance period . . . you will be charged at the rate of $0.48 per test. Joint Exhibit No. 2, p. 35. Variance from the terms and conditions of this agreement in any order or other written notification from you will be of no effect. Joint Exhibit No. 2, p. 38. DHSMV originally determined TestCorp's bid to be responsive to ITB No. 2887-85 (Rebid) and proposed to award to TestCorp on June 23, 1986. Another Look During the pendency of Juno's ensuing protest, DHSMV staff changed their minds. In their prehearing stipulation, the parties set out the following sequence: On July 14, 1986, Merelyn Grubbs, Chief of the Bureau of General Services of the Department, placed a phone call to Ken Muir, Vice President of Sales and Marketing for TestCorp, in order to clarify questions that had arisen with regard to TestCorp's bid. As a result of the July 14 telephone conversation and reexamination of TestCrop's bid, the Department concluded that in order to get TestCorp's 12-month cost-free warranty, the Department would be required to sign the maintenance and service agreement with TestCorp. As a result of tube July 14 telephone conversation and reexamination of TestCrop's bid, the Department concluded that in order to get the TestCorp equipment at the bid price, the Department would be required to sign the maintenance and service agreement with TestCorp. On July 15, 1986, Ken Muir called Merelyn Grubbs to discuss TestCorp's position with regard to the maintenance and service contract. On July 15, 1986, Merelyn Grubbs sent a letter informing TestCorp that its bid had been rejected as nonresponsive because the "bid for equipment was predicated upon the Department agreeing to enter into the four- year maintenance contract." On July 15, 1986, C. W. Keith, Director of the Division of Driver Licenses, sent a memorandum to Fred O. Dickinson, III, Deputy Executive Director of the Department, which said, in relevant part: In view of the recent discovery of the main- tenance contract on TestCorp's bid which would in effect cost our Department approximately $300,000 for a four year period, which we obviously cannot afford and was not listed in the bid, we recommend that TestCorp be notified that they are nonresponsive to the bid and that they be disqualified. Ms. Grubbs verified on July 14 with TestCorp [sic] that their bid was invalid unless we also accepted their maintenance contract at a price of 49 cents per examination administered. ([sic] and 49 in original) In short, DHSMV reconsidered, decided that TestCorp's bid was unresponsive, and proposed to award to Juno, on that account. This is DHSMV's current position. The form contract TestCorp attached to its bid, entitled "TestCorp Warranty and Per-Test Maintenance Agreement," covers five years. After the initial year in which there were to be no maintenance charges, the contract specifies maintenance charges "at a rate of $0.48 per test . . . based on the estimated number of tests given in Addenda #1 to this bid, ITB-DHSMV-2887-85 (Rebid)." Joint Exhibit No. 2, p. 35. The estimated number of tests to which the form contract refers amounted to 950 daily in January of 1986. Joint Exhibit No. 3, p. 33. For years two through five, TestCorp's annual revenues from DHSMV under the maintenance contract can be calculated at $114,000, by multiplying 950 times $0.48 times 250 working days (approximate). If January is an unusually busy month or if the testing centers are not open fully 250 days a year, the figure would be less. Registration At the time TestCorp submitted its bid in response to ITB No. 2887-85 (Rebid), on May 16, 1986, it had not registered with Florida's Department of State as a foreign corporation doing business in Florida. Among the special conditions set out in ITB No. 2887-85 (Rebid) was the following. 2.1 All corporations seeking to do business with the State shall, at the time of submitting a bid in response hereto, be on file with the Department of State in accordance with the Provisions of Chapter 607, Florida Statutes; Chapter 607, Florida Statutes; TestCorp registered with the Department of State in accordance with the provisions of Chapter 607, Florida Statutes (1985) on June 20, 1986, three days before the original tabulation on the rebid was posted. When TestCorp originally applied for registration is not clear from the record. Purchase Contemplated The ITB No 2887-85 (Rebid) announces DHSMV's intention to purchase five complete systems, and defined purchase as "acquisition of all rights, titles and interest in the systems in exchange for payment . . . ." Joint Exhibit No. 1, p. 2, 1.3. With reference to the bidder's use of any patented or copyrighted "design, device or materials" the specifications provide that "bid prices shall include all royalties . . . . " Joint Exhibit No. 1, p. 12. TestCorp conditioned its bid by stating The Department will acquire all rights, titles and interest in the systems purchased save and except the department shall not sell, lease, transfer, duplicate or copy the TestCorp hardware configuration, software, or video disc for any purpose whatsoever. In using this language, the drafter of TestCorp's bid referred by section number, 1.3, to that part of the ITB calling far sale outright. Product Information TestCorp's bid represents that all components of the systems it offers "are of standard manufacture." Joint Exhibit No. 2, p. 31. It proposes touch screens in lieu of keyboards. Included in its bid are technical specifications for the touch screens, as well as for the Hitachi video disc player, the multi- user host adapter and the monitor components. Technical specifications for the cable, the Roland printer, the TestCorp housing and the IBM-compatible microcomputer components are not included in the bid, which describes the software and video disc components only as "proprietary." A narrative description of how the system works is also included with TestCorp's bid, however, and the bid recites that the software for the examiner's station "controls all Testing/Information stations and saves all the answers given during each test." Joint Exhibit No. 2, p 29. TestCorp's substitution of touch screens for keyboards, while not framed as a request for variance, was clearly and concisely described. An explanation of the perceived advantages of touch screens accompanied the description. Right and Wrong ITB No. 2887-85 (Rebid) calls for "correct answer feedback," Joint Exhibit No. 1, p. 13, 3.3.05, which the specifications describe in some detail, after first making clear that "wording and procedures . . . serve only as a guideline [and that d]ifferent procedures, wording or indications will be acceptable." Joint Exhibit No. 1, p. 16. "WHEN SURE PUSH SCORE" should be an indicator and shall come on after an answer choice has been made to advise the applicant to depress the "SCORE" selection device. "RIGHT" [or] "WRONG" will appear after the "SCORE" selection device has been depressed and will indicate the correctness of the applicant's answer choice. Joint Exhibit No. 1, pp. 16 and 17, 3.9.5 3. 9.5 3.9.7 The final answer selection device, when activated by the applicant, shall cause the selected answer to be recorded and the correct or incorrect indicator to be activated. It shall not be possible to activate the final answer selection device until an answer selection has been made. Joint Exhibit No. 1. p. TestCorp's bid, which states, "The test can be presented as specified in this proposal," Joint Exhibit No. 2, p. 29, indicates that the "TestCorp method uses an answer until correct procedure for administering tests." Joint Exhibit No. 2, p. 30. "The computer does the scoring . . . . Examinees know the correct answer to each question at the end of the test." Joint Exhibit No. 2, p. 30. TestCorp's bid also includes the following description: When the test begins, the software chooses a question at random and presents it to the examinee. The examinee touches a key to register the answer of his choice. If it is wrong, the computer tells him to try again until he gets the right answer . . . Joint Exhibit No. 2, p. 71. Apparently TestCorp's system would cause a "Try Again" panel rather than a "Wrong" panel to light up, but this difference is not material, as Section 3.9.5 explicitly states. Cabinetry ITB No. 2887-85 (Rebid) requires that the cabinet for the "handicapped display unit . . . be so constructed as to permit an applicant for a driver's license test to remain seated while taking the test," Joint Exhibit No. 1, p. 15, 3.8.1; and requires that the examiner's console cabinet "be a small desk top unit with a sloping panel for ease of operation and readout viewing." Joint Exhibit No. 1, p. 19, 8.14. TestCorp's bid does not explicitly address the cabinetry either for the handicapped display unit or for the examiner's station. TestCorp's bid does say, "Any testing station can be used as an alternate Examiner's Station." Joint Exhibit No. 2, p. 27. TestCorp's bid also states, however that the "Examiner's Station consist[s] of the same components [as make up an examinee's station, viz., housing, cables, a microcomputer, a monitor, a touchscreen and a video disc player] with the exception of the video player, which is replaced by a printer," Joint Exhibit No. 2, p. 29, and that the "Examiner's Console also includes the local area network hardware that controls the Testing/Information Stations." Joint Exhibit No. 2, p. 29. The latter statements raise some question about the asserted interchangeability. In context, the claims that the different types of stations are similar or interchangeable must relate to their technical construction, and not to the cabinets in which the working components would be housed. References ITB No. 2887-85 (Rebid) calls for a "list of three (3) customers having equipment like or similar to that being bid." Joint Exhibit No. 1, p 4, 2.17. TestCorp supplied the names of four customers, for only two of whom, however, TestCorp had installed automated driver testing systems. TestCorp furnished the other two customers hardware identical to that called for by ITB No. 2887-85 (Rebid), albeit "not all tied together to a command console or master console as" (T.63) called for by ITB No. 2887-85 (Rebid). As for the software TestCorp furnished these other two customers, "[t]here are some differences in terms of commands, but the program, software program, is not a dissimilar program" (T. 64) even though these customers use the systems for purposes other than testing drivers, purposes requiring the input of different data.
The Issue At issue is whether petitioner's application to take the examination required for licensure as an optician should be approved.
Findings Of Fact Mr. Silverstone seeks licensure through the apprenticeship program. His organized sponsor indicated he only supplied initial sponsorship forms. The vast majority of the hours Mr. Silverstone claims were not certified by his sponsor whose signature was forged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered approving petitioner's application to take the examination required for licensure as an optician, and imposing an administrative fine of $1,000. DONE AND ENTERED this 13th day of June, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997.
The Issue Whether Petitioner should receive a passing grade for the Unlimited Electrical Contractors' Examination given on January 29, 1999.
Findings Of Fact On January 29, 1999, Petitioner Ulises A. Garcia (Garcia), sat for the Unlimited Electrical Contractors' Examination given by Respondent, Department of Business and Professional Regulation, Electrical Contractors' Licensing Board (Department). The examination consisted of 150 multiple-choice questions, 100 of which were on the morning portion of the examination and the remaining 50 of which were on the afternoon portion of the examination. The questions are based on general trade knowledge and certain reference materials, which are identified to the candidates prior to the examination in the "Candidate Information Booklet for the Electrical Contractors' Examination." The candidates are allowed to bring the reference materials to the examination and to refer to them during the examination. An applicant must receive a score of at least 75 in order to pass the examination. Each question is worth two-thirds of a point. The Department rounds the scores. For example, if a candidate scored 74 and 2/3 points, the Department awards a grade of 75. By examination grade report mailed March 15, 1999, the Department notified Garcia that he had failed the examination with a grade of 74. Garcia requested an administrative hearing challenging questions 20, 53, and 100 on the morning portion of the examination and question 2 on the afternoon portion of the examination. At the final hearing, Garica withdrew his challenge to questions 100 and 2, leaving questions 20 and 53 at issue. Question 20 dealt with service entrance conductors. The parties stipulated that Garcia gave "A" as the answer. The answer which the Department considered to be correct was "C." Garcia stated that he was giving the answer which applied to the general rule concerning service entrance conductors and that he did not consider exceptions to the general rule in his answer. The Department took the position that the question did not specify that only the general rule should be considered; thus, the exceptions should be included. If the general rule is used pertaining to question 20, the correct answer is "A." If some but not all the exceptions are used, the correct answer would be "C." The question, as posed, requires that if exceptions are to be considered all the exceptions should be considered. The multiple-choice question had four possible answers, none of which was the correct answer based upon the testimony of both Garcia's expert witness and the Department's expert witness. Because the correct answer is not included in the choices, Garcia should be given credit for his answer as has been the past practice of the Department when a question is vague or ambiguous. Question 53 dealt with passive infrared detectors, commonly known as motion detectors. The parties stipulated that Garcia answered the question as "B." The Department's position is that the correct answer is "D." The correct answer is "D" as found in Section 10.2 of Understanding and Servicing Alarms Systems, which is listed as reference material in the "Candidate Information Booklet for the Electrical Contractor's Examination." Question 53 is not vague or ambiguous. Eighty-two percent of the 102 persons who took the January 29, 1999, examination answered question 53 correctly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entering finding that Ulises A. Garcia received a passing score of 75 on the Unlimited Electrical Contractors' Examination given on January 29, 1999. DONE AND ENTERED this 22nd day of October, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1999. COPIES FURNISHED: Renato Perez, Esquire Law Offices of Perez and Perez 1105 Southwest 87th Avenue Miami, Florida 33174 Theodore R. Gay, Esquire Department of Business and Professional Regulation, Electrical Contractors' Licensing Board 401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128 Ila Jones, Executive Director Electrical Contractors' Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this proceeding are whether DOAH has jurisdiction over the subject matter of this proceeding and whether Petitioner has standing under Chapter 120.
Findings Of Fact Respondent, Office of Financial Regulation (OFR), which has been through several name changes, is the agency responsible for enforcement of Chapter 494, Florida Statutes, governing the regulation and licensure of mortgage brokers and mortgage lenders. In order to perform its regulatory and licensure duties OFR collects, processes and maintains information related to mortgage brokers and mortgage lenders seeking licensure in Florida and/or complying with Florida law. Much of the information regarding a particular broker or lender is maintained by OFR in its licensure files. At least some, if not all, of the information forming OFR's licensure files are kept in electronic form in OFR's computerized licensure database. The record is not clear, if such information is also maintained in paper form. OFR's database is maintained on computers controlled and managed by Intervenor, Office of Financial Services (OFS). OFS supplies administrative and information systems support services, including computer security, to maintain OFR's licensure database, as well as other information maintained on OFS's computer systems. Petitioner, Dave Taylor, is president of Petitioner, Florida Compliance Specialists, Inc. Both are residents of Leon County. Petitioners' business consists of providing regulatory compliance and licensing services to in-state and out-of-state mortgage brokers or mortgage lending companies doing business or seeking to do business in Florida. Petitioners' licensure service includes, in part, aiding their clients in obtaining licensure with OFR. As part of their service, Petitioners' monitor the status of OFR's licensure files regarding a client's application for licensure, as well as gathering information related to their clients on other licensure, deficiency or compliance matters. At least some of the information contained in these files is kept in electronic form, and is accessible online through a wide-area network connection to OFR's licensure database. Since 1999 and with the help of OFR's predecessor agency, Petitioners had computer online access, as well as non-online access, to certain of OFR’s licensure databases. The online access was provided by OFR through a networking services provider. Agency personnel provided Petitioners with a user identification and password for read-only access to OFR's licensure database. Read-only access permits a user to look at and print information contained in a database or document, but does not permit a user to change or add data to a database or document. The networking services provider also supplied Petitioners with a separate user identification and password so that Petitioners could access the networking services provider's computer system. In order to access the networking services provider's computer system Petitioners had to enter into a written limited user agreement with the networking services provider. Petitioners paid a fee based on that agreement to the networking services provider. There was no evidence that any part of the fee paid to the networking services provider for its service was paid to OFR or any of its predecessor agencies for access to its database. There was no access fee paid directly to OFR. At some point prior to this action, OFR discontinued Petitioners' online access to its licensure database. Petitioner used and continues to desire online access to OFR's database in order to provide faster service to its clients which in-turn might speculatively allow Petitioners to take on more clients. Lack of online access does not prevent Petitioners from obtaining any information they utilize in their business. Such information remains available through traditional, non-online access methods such as written or telephonic requests, resulting in oral responses or paper copies of the information requested. Such traditional requests for information from OFR may be less speedy and more costly to obtain. However, Petitioners offered no evidence to support their claim of additional costs created by non-online access vis on-line access. More importantly, irrespective of speed or costs, online access to OFR's database or computer system is neither a legal right nor a substantial interest cognizable in an administrative hearing for purposes of Petitioners standing in this case. Additionally, Petitioners have alleged a contract with OFR for continued online access. Other than stating there is a contract, the pleadings afford no factual basis for concluding such a contract exists. There is no contract attached to the pleadings and Petitioners have no idea of the terms or conditions of such a contract. Petitioners do not know whether the contract is written or oral or who the parties are to the contract. Clearly these allegations are purely speculative. As such, the pleadings do not form the bases for facts sufficient to demonstrate Petitioners' standing in this action.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent Charley O. Young & Sons Trucking, Inc. (Company) is engaged in the business of hauling United States Mail between various United States Postal Service's post offices in the State of Florida, and is an employer as that term is defined in Section 760.10(7), Florida Statutes. Charley O. Young (Young), president of the Company, has been involved in the business of hauling United States mail for over 35 years. The mail which the Company hauls from post office to post office comes from places throughout the United States and the world. Such mail is considered to be in a continuous flow in interstate commerce from the moment it is mailed until it reaches its ultimate destination. Petitioner Dennis Bonville has been employed by the Company from time to time as an employee and as a subcontractor. Petitioner's last employment with the Company was as an employee driving a truck hauling mail from Tampa, Florida to Ruskin, Florida. The Company hired Petitioner with the full knowledge and understanding that Petitioner had a handicap known as monocular vision (vision capacity in one eye). Notwithstanding his handicap, Petitioner had been granted medical certification and was qualified to operate a commercial motor vehicle in the State of Florida in intrastate commerce in accordance with Section 316.302(2)(j), Florida Statutes. The position held by Petitioner was created as a result of the Company being awarded an emergency mail hauling contract between Tampa, Florida and Ruskin, Florida by the U. S. Postal Service beginning February 10, 1990, for an indefinite period. At the time Petitioner was hired, he understood that his employment with the Company was indefinite since the contract for the Tampa to Ruskin run with the U. S. Postal Service was for an indefinite period. On or about April 27, 1991, the Company was audited by the United States Department of Transportation, Office of Motor Carrier Safety, Florida Division (USDOT). The USDOT agent reviewed, among other things, the personnel and medical files of all the Company's drivers. During the audit, the agent discovered that Petitioner had monocular vision. The contract for the Tampa to Ruskin mail run required the Company to comply with all state and federal regulations, including those promulgated by the USDOT. Under USDOT rules, monocular vision disqualified Petitioner from driving a commercial motor vehicle in interstate commerce. The agent demanded that Young immediately remove Petitioner from the Tampa to Ruskin run since it involved operating a commercial motor vehicle in interstate commerce. However, since Young had no qualified driver to relieve Petitioner, the agent agreed to allow Petitioner to complete the run for the day with the understanding that the Petitioner would be relieved upon his return. The agent then advised Young that he would return the next day to complete the audit, and if the Petitioner had not been relieved, he had the authority to, and would, put a padlock on the door and shut down the Company's business. It was the agent's position that the Company was engaged in interstate commerce due to its hauling mail that was in interstate commerce, notwithstanding that the Company's vehicles never left the State of Florida. Therefore, the Petitioner's monocular vision rendered him unqualified to drive a commercial motor vehicle operating in interstate commerce under the USDOT rules which governed drivers under mail contracts. When the Petitioner returned that night to the Company's office, Young informed the Petitioner that due to the agent's position and his threat to shut down the Company's business if Petitioner continued to make the Tampa to Ruskin run, he had no alternative but to relieve the Petitioner of the Tampa to Ruskin run. When the agent returned to complete the audit the next day, the Petitioner had a heated discussion with the agent concerning the agent's position and its effect on the Petitioner's employment. The agent maintained his position that Petitioner was not qualified to drive the vehicle being used in the Tampa to Ruskin mail run which was considered to be in interstate commerce. At the conclusion of the audit, the Company was issued, among others, citations for violating 49 C.F.R. 391.11(b)(6), using a physically unqualified driver, and was fined $6,000. At this time, the Company had no other positions which it could offer the Petitioner that would accommodate his handicap. Therefore, as a result of the audit and the agent's threat to "shut down the business", the Petitioner was terminated by the Company effective April 27, 1991. At the time Petitioner was terminated he was earning $11.19 per hour and working 40 hours per week. Petitioner's job performance was not an issue in the Petitioner's termination. The Company's bid for the renewal of the Tampa, Florida to Ruskin, Florida contract was unsuccessful, and on April 30, 1991, the Company's contract for the Tampa to Ruskin mail run expired. Petitioner was replaced by a Company employee who was qualified under the USDOT rules to operate the vehicle used on the Tampa to Ruskin run for the three days remaining on the contract. After Petitioner's termination, sometime around October, 1991, the Petitioner was offered employment with the Company driving a van, which Petitioner was qualified to drive, delivering special delivery mail. However, this employment offered less money than Petitioner's previous employment with the Company and was turned down by the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition For Relief filed by the Petitioner. RECOMMENDED this day 29th of August, 1994, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1994.
The Issue The issues are whether Petitioner's Petition for Relief is untimely, and if not, whether Respondent committed an unlawful employment act against Petitioner contrary to Section 760.10, Florida Statutes.
Findings Of Fact S.M.A.R.T. is a company that provides mechanics, electricians, avionics inspectors, sheet metal laborers, and other technical employees to aircraft maintenance and repair companies on a temporary basis. In 1996, S.M.A.R.T. supplied Respondent with temporary contract laborers at Respondent's aircraft maintenance facility in Lake City, Florida. For example, S.M.A.R.T. supplied Respondent with approximately 25 percent of its 450 mechanics. Respondent did not maintain personnel files or conduct performance evaluations on S.M.A.R.T.'s contract laborers. Respondent provided S.M.A.R.T. with the number of man-hours that contract laborers worked so that S.M.A.R.T. could pay its employees. In 1996, Petitioner worked for S.M.A.R.T. as a contract laborer at Respondent's Lake City facility. Petitioner's work as a parts researcher required him to make sure that Respondent's customers, owners and operators of aircraft, had the right parts for their aircraft. On March 28, 1996, S.M.A.R.T. terminated Petitioner's employment due to a lack of work at Respondent's Lake City facility. Being laid off from a contract job as a parts researcher at a specific site was not unusual when an aircraft owner or operator stopped sending planes to the facility and the temporary labor company had no other work available for its employee. After being laid off by S.M.A.R.T., Petitioner was unemployed for a time. In November 1996, Kitty Hawk Air Cargo (Kitty Hawk) was Respondent's customer at the Lake City facility. Pursuant to a contract between Respondent and Kitty Hawk, some of Kitty Hawk's aircraft were being changed into freighters. Kitty Hawk had a separate contract with Allen Aircraft Radio Corporation (AAR) for customer-supplied parts. Under the contract, AAR acted as a parts vendor and supplied Kitty Hawk with parts researchers. Respondent did not have a role in Kitty Hawk's choice of AAR as a supplier of parts. Sometime after he was laid-off by S.M.A.R.T., Petitioner applied for employment with AAR as a parts researcher. Petitioner had an interview with AAR for a job at Respondent's Lake City facility. After the interview, Petitioner was under the impression that AAR had hired him for that job. Petitioner subsequently learned that he did not have a job with AAR. AAR never told Petitioner why he was not hired. Petitioner did not know the name, age, or qualifications of the person that AAR hired for the position at issue here. Petitioner did not know whether AAR had hired anyone for the position he was seeking. AAR's contract with Kitty Hawk terminated in 1996 except for aircraft then in Respondent's facility. The last of Kitty Hawk's aircraft departed Respondent's facility in March 1997. At that time, any employees of AAR at the Lake City facility would have either been laid off or transferred to another AAR job site. Respondent hired Dick Perkins on July 20, 1995, as a Manager of A & P Mechanics. Since that time, AAR has promoted Mr. Perkins to Director of Maintenance. Mr. Perkins had no involvement with AAR when it was working on Kitty Hawk's aircraft at the Lake City facility. Mr. Perkins had no responsibility over the Kitty Hawk contract in 1996. Petitioner did not personally overhear Mr. Perkins make a statement about him. Rather, Petitioner relies on statements allegedly made by Mr. Perkins, overheard by Doug Yormick, repeated to Tom Welcome, then relayed to Petitioner. At times relevant to this case, Mr. Yormick and Mr. Welcome were employees of S.M.A.R.T. Competent evidence indicates as follows: (a) Mr. Perkins does not know Petitioner; (b) Mr. Perkins never made a statement to anyone that he did not want that "old son-of-a-bitch" working on Respondent's property; (c) Mr. Perkins never made any statement relating to Petitioner's age; (d) Mr. Perkins never talked with anyone at AAR regarding the person AAR would hire as a parts researcher; (e) Mr. Perkins never talked with Keith Wild/Wilder, Bob Sorrentino, or Bob Sonne/Sonner at AAR. After November 19, 1999, Petitioner worked for several other companies, including but not limited to, Piping Design Systems in Orlando, Florida, and a company in Mexico.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
