The Issue The issue is whether Respondent's proposed award of a portion of Bid No. 99-79 for retread tire services to Dave Howell Tires was arbitrary and capricious, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Escambia County Utilities Authority (Authority), is a local governmental body governed by Chapter 92- 248, Laws of Florida. The Authority manages and operates certain utility systems within Escambia County, Florida, and areas adjacent thereto. It is governed by a board consisting of five elected members. To assist it in carrying out its duties, the Authority has adopted the Escambia County Utilities Authority Code (Code), which contains various regulations, including Chapter 13, pertaining to Purchasing Procedures. Pertinent to this controversy are Sections 13-2(b)(1), 13-2(d), and 13-12, which authorize the Authority to accept or reject bids, to separate bids into more than one part, and to give preference to local vendors, respectively. By public advertisement made on September 16, 1999, the Authority solicited sealed proposals for Bid No. 99-79 for the supply of new truck tires and retread services for its sanitation truck fleet. The contracting period would run for two years. Such proposals were to be filed by interested vendors no later than 2:00 p.m., Thursday, September 30, 1999. The bid specification identified the new tires and retread services as separate items, meaning that each could be awarded to separate bidders, as authorized by Section 13-2(d) of the Code. The bid also provided that the Authority "reserved[d] the right to waive informalities in any bid; to reject any and all bids in whole or in part; and to accept the bid[s] that in its judgment is the lowest and most responsible." In response to that invitation, four vendors, including Petitioner, Eagle Tire & Service Center (Eagle), and Dave Howell Tires (Dave Howell), located in Milton and Pensacola, Florida, respectively, timely submitted sealed proposals. Eagle was found to have the lowest dollar bid for both items. On the retread portion of their responses, Eagle's bid was for $83,100.00, while Dave Howell's bid was for $83,934.36, or a difference of slightly more than $900.00. At issue in this case is the retread portion of the bid. In its proposal, Eagle offered to supply specially engineered Goodyear retreading from its facility in Atmore, Alabama, some 45 minutes north of Pensacola. On the other hand, Dave Howell, whose facility is located in Pensacola, offered to use Bandag rubber on its retreads, which is another widely- recognized retread brand. According to the Authority's director of sanitation, Jerry Moore (Moore), he saw no difference in the quality of the two products. Bid proposals are first reviewed by the department head who is directly affected by the solicitation; that individual makes a recommendation to the Finance Advisory Committee (Committee), which then presents its recommendation to the Authority. The Committee is made up of seven members, including two members of the Authority (Dale Perkins and George Watson) and five appointed citizens. In this case, the bids were opened and reviewed by Moore, the director of sanitation. On the afternoon of October 19, 1999, the Committee reviewed Moore's recommendation regarding the award of a contract. The Committee unanimously accepted Moore's recommendation that Petitioner, the lowest bidder, be awarded a two-year contract for both new and retread tire services. During the course of the Committee meeting, representatives of both Eagle and Dave Howell spoke to the Committee in support of their respective proposals. In addition, Dr. Larry N. Walker (Dr. Walker), a member of the Authority, appeared before the Committee to make comments favorable to Dave Howell. Among other things, Dr. Walker made the following statements: I come before you as something of a partisan today. I'm a friend of Dave Howell. I buy all my tires from his store. [B]ecause of conversations I've had with him and other input . . . this is one of those instances where we will actually come out ahead if we were to select the higher bid. I was not asked, t but it was] suggested by Mr. Howell that I call someone at the Escambia County School Board and ask them about their experience with Dave Howell Tires, his retreads, and I called Jerry Watson, one of the assistant superintendents, and Mr. Watson just was, was just very effusive in his compliments of the tires saying that their [tires were] far better than they had gotton before from the previous vendor. That they last much longer. They very seldom, that they don't start tearing up as quickly so that the, they say that when you have school bus tires starting to shred on the edges, the retread starts shredding and stuff, that, that you'll have parents calling, complaining, that, hey, the tires on my child's school bus look terrible. And said we don't, we just don't get those calls, and so in short he was very full of praise for the product produced by Dave Howell. It is a fact too that Dave Howell Tires is a local employer and contributes to our local economy and I think that's worth considering. I have had more than a few friends who submitted bids with ECUA contracts over the years and I've never stood up and made a speech like this before for any of them nor have I ever done it for Mr. Howell before. But in this particular instance when the dollar figures are this close, I think the points that, the points that I have raised have, have impressed me at any rate. [I]n short, this is a very close bid and I think there's some legitimate reasons for considering going with Mr. Howell's bid [which] is a better bid even though it's not the lowest. Despite the recommendation of Dr. Walker, the Committee rejected by a 5-2 vote a motion by Dale Perkins to award the retread portion of the contract to Dave Howell. When these comments were made, Dr. Walker was running for a term as County Commissioner. He had accepted a contribution of $300.00 from Dave Howell on August 1, 1999. In addition, Dave Howell made another $250.00 contribution on October 4, 1999. As required by law, all contributions were disclosed by Dr. Walker in his campaign treasurer's reports filed with the local Supervisor of Elections. The first contribution was disclosed by Dr. Walker in a quarterly report filed on October 13, 1999, or before the Committee meeting at which he spoke, while the second was disclosed in a later-filed quarterly report. During his appearance at the meeting, however, Dr. Walker did not disclose either contribution. On October 28, 1999, the Authority met to consider the award of a contract under Bid No. 99-79. At that meeting, Moore, speaking on behalf of the Committee, recommended that the contract for both items be awarded to Eagle. Dave Howell was also present at the meeting and was given an opportunity to make a brief presentation. He described his product (Bandag) as being "superior" to the other proposals, and pointed out that he did retreading for the Escambia County School Board (School Board). In addition, he mentioned the fact that he used a NDI (non-destruct imager) machine for scanning tire casings which would "save money" for the Authority. Finally, he pointed out that he was a local vendor who employed 39 persons, all of whom were residents of Escambia County. At the same meeting, Dr. Walker again spoke on behalf of Dave Howell saying that "Howell Tires has the . . . best bid"; that it would "better . . . to go with Dave Howell tires because I do believe that the tires, the retread tires are a better tire, that will give longer wear, have fewer failures and therefore that we will come out ahead . . . in the long run"; that "I do believe that this is the better contract and part of that comes from talking with Mr. Jerry Watson who . . . said the School Board is absolutely delighted with the retreads from Dave Howell Tires"; and that "Mr. Howell insists that [Eagle's machine] can't be as good as his [NDI machine]." At the Authority meeting, another member produced a letter dated October 26, 1999, drafted by School Board Deputy Superintendent Jerry Watson (Watson), which stated in part that Watson understood that Dave Howell's service to the School Board under an existing contract "has been excellent"; that the firm provided "dependable, quality service"; that Dave Howell "understands that safety is of utmost importance to [the School Board]"; and that he "would recommend the excellent service of Dave Howell Tires." As it turned out, the letter had been solicited from Watson by Dr. Walker at the suggestion of Dave Howell. The letter was read in full at the meeting at the urging of Dr. Walker. Thereafter, the Authority unanimously voted to split the contract and award the new tire business to Eagle and the retread portion of the contract to Dave Howell. A splitting of the contract was permissible under Section 13-2(d) of the Code. Eagle did not send a representative to the Authority meeting believing that after the unanimous vote by the Committee to award Eagle the contract, it had no reason to attend. Had a representative attended, however, he would have been given an opportunity to speak. Eagle later learned in a telephone call from Moore that the retread portion of the contract had been given to Dave Howell. This appeal ensued. In its timely-filed appeal, Eagle contends that the award of the retread part of the contract "was arbitrary, capricious, unlawful, contrary to the Authority's rules and regulations, contrary to the substantial weight of the evidence and applicable [Authority] bidding procedures, deprived [P]etitioner of his substantial rights, and was unconstitutional." More specifically, Petitioner contended that the contract was awarded to Dave Howell "based on improper, irrelevant, incompetent, and highly prejudicial procedures, statements, events, and the personal interest of one or more board members"; that the Authority "improperly applied a 'local preference' standard"; that a board member (Dr. Larry Walker) "improperly, unethically, and in direct violation of his oath of office and state law engaged in extensive ex parse communications, personal contacts, and financial transactions with and in behalf of Howell"; and that Dr. Walker did not disclose the fact that "Howell had paid a substantial sum of money to Walker for the latter's political campaign." More specific findings regarding these contentions are made below. Local vendor preference Section 13-12 of the Code prohibits favoritism for "local bidders" except in the narrowly defined circumstance where a "rapid response time" is needed in the case of a service contract. Bid No. 99-79 did not contain a local preference provision. While the Code does not define the term "local bidders," the evidence supports an inference that it applies to bidders who are located in Escambia County and the immediate area. During the discussions regarding Dave Howell at the Authority's meeting, Dr. Walker referred to Dave Howell as a local vendor, and another member, Dale Perkins, made reference to Dave Howell's local residency, the residency of his work force, and the taxes they presumably paid to Escambia County. A third member, Elvin McCorvey, also indicated that he was "inclined to agree . . . about doing business with the local vendor." In light of the foregoing comments, the Authority's General Counsel, Mr. Kievit, twice explained to the Authority members the local preference policy. Specifically, after two members expressed their desire to keep business "at home," Mr. Kievit cautioned the members against utilizing local vendor preference as a basis for awarding the contract in this instance. Testimony by Authority members at hearing confirms that this advice was accepted and that their decision was based on other criteria, including Dave Howell's "convincing" and uncontradicted presentation; his record of service with the School Board under an existing contract; the assertion that Bandag was a better product; the assertion that most private commercial waste haulers used Bandag tires; and an assertion that over time Dave Howell's NDI machine would save the Authority money. In short, it is fair to conclude that local preference played no role in the members' final votes on the matter. Finally, the member (Perkins) who had unsuccessfully moved that the Committee award the retread portion of the contract to Dave Howell, indicated at that time to the Committee members that his recommendation was not based on the local preference rule. While Petitioner asserts that Dave Howell received special preference as a "local vendor," the more persuasive evidence supports a finding that he did not. Conflict of Interest As noted in earlier findings, Dr. Walker made comments in support of Dave Howell at both the Committee and Authority meetings. This was after Dr. Walker had accepted two contributions totaling $550.00 from Dave Howell for his reelection bid. Except for filing his campaign treasurer's reports with the Supervisor of Elections, Dr. Walker had no other legal or ethical requirement regarding disclosure of contributions. In retrospect, however, Dr. Walker wishes he had done so to avoid any appearance of impropriety. Even so, merely because he had accepted a campaign contribution did not require that Dr. Walker abstain from voting on the contract or prevent him from advocating on behalf of a contributor/constituent. There is no evidence that Dr. Walker received any direct, personal, or financial gain as a result of his vote. Although members have rarely advocated the award of a contract to a particular vendor in prior years, there is no legal or ethical prohibition against a member doing so on behalf of a constituent. There is also no prohibition against a member investigating information about a bidder. In this case, before the contract was awarded, Dr. Walker made inquiry from both Dave Howell and the School Board regarding the quality of the Bandag product; he visited Dave Howell's facility; and he solicited a letter from a School Board representative regarding Dave Howell's service under an existing contract. While he made no similar inquiries regarding Eagle, and in fairness probably should have, Dr. Walker acknowledged that had Eagle contacted him, he would have been happy to meet with a representative of that firm to discuss its product. Finally, the evidence shows that Dr. Walker did not discuss the contract with, or personally solicit the vote of, any other member before the final vote was taken. Dr. Walker, who is the author of a treatise entitled The Florida Municipal Officials Manual, a publication widely used by elected and appointed municipal officials, municipal attorneys, and the Florida League of Cities, had no reason to disbelieve, or question the reliability of, the information he obtained from Dave Howell. Indeed, he simply relied on Dave Howell's representations in advocating on that vendor's behalf. Appearance by Dave Howell at the Authority Meeting As noted earlier, Dave Howell spoke at the Authority meeting on October 28, 1999. Eagle had no representative at that meeting. Eagle suggests that it was inappropriate for a vendor to appear at the meeting at which the contract was awarded; alternatively, Eagle suggests that the Authority should have given notice that vendors could appear and make presentations in support of their proposals. The evidence shows that while it is not a normal occurrence, several times a year a disappointed vendor will appear before the Authority and make a presentation. The Authority's policy is to allow any member of the public to speak, including disappointed bidders. Also, there is no requirement that the Authority inform all vendors that a disappointed bidder intends to make a presentation, or that the successful bidder should make an appearance on behalf of its proposal. Had an Eagle representative appeared at the meeting, he would have been allowed to give a presentation. The Authority violated no rule, Code provision, or statute by allowing Dave Howell to speak at the Authority meeting. Indeed, it is not unusual for a bidder to provide further information regarding its product to the Committee and Authority before a vote is taken, and such action by a bidder does not constitute a modification to its bid package. Was the Final Decision Arbitrary? In its proposed order, Eagle contends that there was no difference in quality between the retreads offered by either vendor. Thus, it argues that any assertion by the Authority members that their votes were based on Dave Howell providing a better quality product is simply a ruse for circumventing the local preference rule, and therefore its decision was not based on adequate facts. The record establishes that both products were of similar quality and reliability and met all specifications. Assertions by Dave Howell that his product was better, that his NDI machine was superior to his competitor's machine and would save the Authority money in the long run, and that virtually all private waste haulers used the Bandag product were not accurate. Indeed, the products were similar in quality, Eagle had a NOT scanning machine which was just as good as the NDI machine and would achieve the same savings, if any, and the amount of use of Bandag tires by other waste haulers was embellished. Moreover, School Board Deputy Superintendent Watson's assertion that Dave Howell provided a better product than did the predecessor contract holder is somewhat puzzling since the prior vendor also used the same Bandag retread. All of these representations were accepted by the Authority, primarily because they were unrebutted, and they formed the factual basis for awarding the contract to Dave Howell. Indeed, at hearing, each Authority member acknowledged that he had no independent knowledge of these matters and accepted without further question the representations made by Dave Howell and Walker. Because the Authority mistakenly relied on invalid assumptions, or representations which were either embellished or incorrect, as a basis for awarding the contract to someone other than the lowest bidder, its decision was not based on facts or logic and was therefore arbitrary.
Conclusions For Petitioner: John C. Barrett, Esquire 5 Calle Traviesa, Pensacola Beach Pensacola Beach, Florida 32561 For Respondent: Robert W. Kievit, Esquire Michael J. Stebbins, Esquire Kievit, Kelly & Odom 15 West Main Street Pensacola, Florida 32501
Findings Of Fact Petitioner operates a food and beverage concession on the beach at North Shore Open Space Park in Miami Beach, Florida. Pursuant to a Management Agreement between the City of Miami Beach and the State of Florida, the City pays to the Florida Department of Natural Resources 25 percent of all monies the City collects from private concessionaires operating on that beach. The City has issued a permit to Petitioner for the sale of beer and wine (in addition to food and other beverages) at this location contingent upon licensing by the State of Florida. Petitioner's concession is operated from trailers loaned to it by the Pepsi-Cola Bottling Company of Miami. Each trailer is approximately 14 feet by 6 feet in size and is mounted on four rubber tires. Each trailer is hauled to its location each morning by a 4 x 4 International truck and is disconnected from the truck at the location of a 4" x 4" post embedded in concrete in the sand. The post contains a socket which provides telephone service for the trailer upon insertion of a plug. The posts were installed for the sole purpose of allowing Petitioner's employees at the trailers to call Petitioner's commissary for additional supplies to be delivered. The City of Miami Beach requires each trailer to be located within 15 feet of its post when operating and further defines its hours of operation. The service area granted to Petitioner under its concession agreement with the City covers 888,300 square feet of beach. At the end of each day, the trailers are picked up by the tow vehicle and are hauled to Mr. Coney Island restaurant, approximately 1.5 miles from the beach site, where they are stored overnight and restocked each morning. On June 2, 1983, Beverage Officer Francisco R. Oliva inspected the proposed business premises. At the address shown on Petitioner's application, 7929 Atlantic Way, Officer Oliva found only beach-front property with no address numbers. He located two trailers bearing Pepsi-Cola Company markings between the 80th and 81st blocks of Atlantic Way. The poles from which the trailers obtain telephone service were not present on that date. The business address Petitioner provided on its application for licensure, 7929 Atlantic Way, Miami Beach, is the address the City uses for the building which houses the Beach Patrol and the Dade County sanitation equipment for sanitation of the beach.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for a Series 2-COP beverage license. DONE and RECOMMENDED this 25th day of April, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 25th day of April, 1984. COPIES FURNISHED: Richard W. Wasserman, Esquire 420 Lincoln Road Miami Beach, Florida 33139 Louisa E. Hargrett, Esquire. Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Hronough Street Tallahassee, Florida 32301
The Issue The issues are whether Florida Power and Light may backbill James Kiselak for electricity diverted from a residential electric meter, and for costs of investigation, and whether it may decline to transfer the account for the residence at which the electricity was diverted to the name of Pat Kintz until the backbill and the costs of investigation are paid.
Findings Of Fact Mr. James Kiselak has, for a number of years, been the customer of record for electric service provided by Florida Power and Light Company to a residence located at 3987 NW 163rd Street in Opa Locka, Florida. Mr. Kiselak had been accused in 1985 of current diversion by removing the meter and inverting it. After an investigation, Mr. Kiselak paid a back bill for current diversion. As part of the resolution of the first current diversion matter, the old meter, #5C75910, was removed and replaced with meter #5C98980 on January 27, 1986. The meter was brand new at the time it was installed. This is not a situation where a new resident has become the customer of record at a home and "inherited" a meter which had been tampered with by a prior resident. In August of 1989 Florida Power and Light Company received a tip that the customer at the Kiselak residence was removing the meter from the socket. A meterman was sent to investigate on September 17, 1989, who found only a hole in the acrylic canopy over the meter. The meter was reinspected by Mr. Chase Vessels on March 18, 1990. He found a wire placed through the hole in the acrylic canopy which stopped the meter disc from turning and registering the use of electricity. At that time he saw that electricity was being consumed because a wall unit air conditioner was operating, a freezer located outside the home was operating, and the outside lights were on. That meter was removed and taken under lock and key where it was tested by Emory Curry on April 4, 1990. Mr. Curry found that the wire through the hole in the canopy had stopped the disc from turning, and that there were drag marks on the top of the disc. When the obstructing wire was removed, tests showed that the meter registered current usage appropriately. The meter has been kept in a locked meter box, and FPL has maintained a log of all persons who have had access to the meter in that box since that time. From the time the meter was tested by Mr. Curry on April 4, 1990, no other person has had access to the meter, the meter was locked again at the close of the hearing on November 4, 1991, in the meter box. The wire was maintained in a separate envelope and locked in the meter box as well. An investigator for Florida Power and Light Company, Joe Brenner, observed the residence at 3987 NW 163rd Street on January 23, 24, and 25, 1991, February 4, 5, 6, 7, and 8, 1991, and February 11, 12, 13, and 14, 1991. In the yard in front of the home a Mazda truck was parked, as well as a Mazda RX7, 2- door automobile, which had no license tag. On January 23, Mr. Brenner saw a gentleman come out, go to the mailbox, remove mail, go through it in a manner consistent with receiving mail at his place of residence and re-enter the home. A credit report obtained by Florida Power and Light Company from Equifax Credit Information Services in North Miami Beach, Florida, shows that Mr. Kiselak has resided in the house from August 6, 1973, through the date of that report on October 30, 1991, and that he receives bills from his various creditors at that address. Mr. Brenner met this man at the informal hearing which was conducted by the Public Service Commission, who identified himself as James Kiselak. Mr. Kiselak drove to the informal hearing in the Mazda RX7, which then had a license plate. The records of the Dade County Auto Tag Agency which were admitted during the hearing show that the car was registered to James Kiselak at the address of 3987 NW 163rd Street in Opa Locka, Florida. After the testing of the meter in April of 1990, a current diversion investigator for Florida Power and Light Company, Diann Thomas, met with Patricia Kintz at the residence where the current diversion occurred; she was accompanied by Roger Sweeney, who also works for Florida Power and Light. At that time Ms. Kintz maintained that she was the owner of the house and its resident, that she was solely responsible for the payment of the electric bills and that she lived in the home alone. Based upon the records of Florida Power and Light which have shown Mr. Kiselak as the customer at the residence since before 1986, his presence at the home on January 23, 1991, his receipt of mail there, the credit report showing that the residence is his billing address for his creditors, and the presence of the Mazda automobile at the residence during the period from January 23 to February 14, 1991, I find that Mr. Kiselak has been residing at the home continuously, and has received the benefit of the current diversion based on meter tampering. For a substantial period of time, at least since October 11, 1988, Ms. Kintz has also occupied the house and received the benefit of the current diverted, although there is no proof that she is (a) responsible for causing the diversion or (b) subject to a cause of action by Florida Power and Light Company for the value of the current diverted. Ms. Diann Thomas has calculated a backbill for the current diverted at the Kiselak residence in a manner consonant with Rule 25-6.104, Florida Administrative Code, which permits a utility to bill the customer "on a reasonable estimate of the energy used" when there has been meter tampering. The type of tampering involved would be manipulable from day-to-day or month-to-month. The bill during the month of April 1989 was for 2,079 kwh of electricity. Usage registered that month was high compared to other months and it is reasonable for the utility to regard this as an unmanipulated month, and to use that consumption as the basis for projecting the proper amount to be billed. For the entire year of 1989, on average for residential customers of Florida Power and Light Company, April bills represented 6.81 percent of all billings for the calendar year. Therefore, the projected electric utilization for the entire year would be 30,529 kwh. Stated another way, the average percentage of use calculation would also show an average use of 69 kwh per day. After the diversion was detected and the new (i.e. third) meter was set on the residence, the use recorded for August and September of 1990 were 2,885 kwh and 3,333 kwh, which are consistent with the average percentage of use calculation based on the April 1989 actual usage. The projected usage for the bill delivered in March 1986 (the first full billing period after the meter had been placed on January 27, 1986), through April of 1990, after the diversion was discovered, is calculated in FPL exhibit 10. The actual bills paid for the Kiselak residence were deducted from the projected amounts in FPL exhibit 18. Based upon these calculations FPL is due $6,871.65 for the diverted electricity; a franchise charge, which would have been added to each monthly bill based upon kilowatt hours used of $284.69, is due, as is a city/county utility tax of $591.80, and a current diversion investigation charge of $375.53. The current diversion investigation charge is reasonable and is broken out on page 4 of FPL exhibit 10. The total due to FPL is therefore $8,087.67. The second issued raised is whether Florida Power and Light Company has properly declined to transfer service at the residence to the name of Ms. Kintz, without payment of the total amount due from Mr. Kiselak. The preponderance of the evidence shows that Mr. Kiselak has used the address as a mailing address for his credit cards, he has been observed frequenting the residence. Ms. Kintz has been also residing there since at least October 10, 1988, when her most current Florida drivers license was issued and she used the residence as her address on that license. Both Kiselak and Kintz continue to occupy the residence. While only Mr. Kiselak is indebted to Florida Power and Light, its tariffs, which have been approved by the Commission, do address this situation. According to tariff sheet 6.010, on service agreements, section 1.5: [Florida Power and Light] may refuse or discontinue service for failure to settle, in full, all prior indebtedness incurred by any customer for the same class of service at any one or more locations of such customer. [Florida Power and Light] may also refuse service for prior indebtedness by a previous customer provided that the current applicant or customer occupied the premises at the time the prior indebtedness occurred and the previous customer continues to occupy the premises. Both Ms. Kintz and Mr. Kiselak benefited from the service during the period current had been diverted, for while the account had been in Mr. Kiselak's name, Ms. Kintz resided there too. Florida Power and Light may refuse to provide service to Ms. Kintz at 3987 NW 163rd Street pursuant to the tariff sheet. The provisions of the tariff sheet are reasonable. It is specifically meant to cover situations such as this, though the more common situation would be one in which two college roommates occupy an apartment or residence, while the electric service is in the name of only one of them. After running up a substantial electric bill which they are unable to pay, the roommate not named on the FPL account may apply to have the service transferred to his (or her) name, and thereby attempt to avoid payment of the current bill, and avoid an interruption of service. Section 1.5 of tariff sheet 6.010 (FPL exhibit 13) is designed to prohibit such situations. It prohibits the transfer of the account into the name of Ms. Kintz here.
Recommendation It is RECOMMENDED that a final order be issued by the Florida Public Service Commission finding that Mr. Kiselak is indebted to Florida Power and Light in the amount of $8,087.67, and that if this amount is not paid to Florida Power and Light within 10 days from the date of the Commission's final order, Florida Power and Light be authorized to cease providing electric service to that address. It is also recommended that Florida Power and Light not be required to transfer the account from the name of Mr. Kiselak to Ms. Kintz unless Mr. Kiselak first pays the full amount due, because Ms. Kintz occupied the premises at the time the current diversion occurred and still continues to occupy those premises. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of November 1991. WILLIAM R. DORSEY, JR. 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 12th day of November 1991. COPIES FURNISHED: K. Crandal McDougall, Esquire Florida Power and Light Company Legal Department Post Office Box 029100 Miami, Florida 33102-9100 Mr. James Kiselak 3987 Northwest 163rd Street Miami, Florida 33054 Ms. Pat Kintz 3987 Northwest 163rd Street Miami, Florida 33054 Kay Flynn, Chief PSC/Bureau of Records 101 East Gaines Street Tallahassee, Florida 32399-0870 Susan Clark, Esquire Public Service Commission 101 East Gaines Street Room 212 Tallahassee, Florida 32399-0850 Steve Tribble, Director of Records and Recording Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 David Swafford, Executive Director Public Service Commission Room 116 101 East Gaines Street Tallahassee, Florida 32399-0850 Rob Vandiver, General Counsel Public Service Commission Room 212 101 East Gaines Street Tallahassee, Florida 32399-0850
The Issue The issue is whether General Motors is inadequately represented in the relevant community or territory and whether Collection Chevrolet, Inc., (Collection) should be permitted to relocate as requested in its application.
Findings Of Fact Abraham timely filed with the Department of Highway Safety and Motor Vehicles its July 6, 1987 letter of protest, which became the initial petition herein. On July 24, 1987, Collection and GM filed a Motion to Dismiss that initial petition. Abraham moved for leave to file an amended Petition. Collection and GM consented to the filing of an amended petition. By Order of August 25, 1987, the undersigned granted the filing of the proposed amendments, which had not been incorporated by Abraham into a fully new petition. Collection and GM addressed these amendments in a Motion to Dismiss Amended Petition, which addressed the new matters raised in the Abraham's amendatory paragraphs. This August 24, 1987 Motion to Dismiss Amended Petition also incorporated Collection's and GM's arguments from heir earlier Motion to Dismiss. Abraham filed a Motion for Reconsideration of the August 25, 1987 Order, together with Abraham's Amended Petition on September 2, 1987; upon which pleadings oral argument was heard by telephonic conference call. Thereafter, by September 18, 1987 Orders Abraham's Amended Petition filed September 2, 1987, was deemed to be Abraham's duly filed second Amended Petition; GM's and Collection's July 24, 1987 Motion to Dismiss and August 24, 1987 Motion to Dismiss Amended Petition were permitted to stand over against Abraham's September 2, 1987, second Amended Petition; GM and Collection were permitted to file amendments to their motions to dismiss directed specifically to the September 2, 1987 second Amended Petition, which amendments Collection and GM timely filed; and Abraham was permitted to file a response to Collection's and GM's final motions/amendments, which response was filed October 5, 1987. Although untimely by the terms of the September 18, 1987 Order, Abraham's response has also been considered. Collection has applied to the Department of Highway Safety and Motor Vehicles for a license to relocate Collection's GM dealership from its existing location at 9200 N.W. 27th Avenue between 91st and 95th Streets, to a new location on the south side of the Tamiami Trail between N.W. 139th and 143rd Avenues, in Miami, Dade County, Florida. The relocation would result in the distance between applicant Collection and protestant Abraham being more than doubled from 4.4 miles to 9.6 miles. Collection's application is not an initial applications and seeks only a change of physical address. Thus, it is not an application for a new license but an application for relocation. The map attached to the second Amended Petition as Exhibit A contains the legend, "Abraham AGGSA 11" and a line drawn on the map outlining an area of central Dade County, Florida. The western boundary is irregular but is between 87th Avenue and 67th Avenue, centering around the Palmetto Expressway, State Road 826, which is approximately at 78th Avenue. On the north, the boundary is irregular but centers around N.W. 30th Street. The southern and eastern boundaries are irrelevant. In its second Amended Petition, Abraham pleads the map's boundaries as its area of primary responsibility. In its October 5, 1987 Response to the motions to dismiss, Abraham admits there is no dispute of fact regarding the further distance relocation, the existing physical location of Collection, or the proposed physical location of Collection but perversely argues that, "In dispute as well is the area of primary responsibility contractually assigned to Abraham by GM. Abraham has serviced for a number of years, the proposed area into which Collection proposes to move, with the knowledge and consent of GM." GM does not admit that the area designated on the map attached as Exhibit A to Abraham's second Amended Petition has been contractually assigned by GM to Abraham as a primary area of responsibility or by any other designation as alleged by Abraham. However, assuming arguendo for purposes of these motions, that the area specifically pled by Abraham has been so designated, then Collection's proposed new location will be no closer to Abraham's alleged area of responsibility than is Collection's existing location. The existing Collection location north of 91st Street is approximately 61 blocks north of the northern boundary of Abraham's alleged area of responsibility, which is in the vicinity of 30th Street. The proposed relocation of Collection west of 139th Avenue is similarly approximately 61 blocks west of the western boundary of Abraham's alleged area of responsibility, which is in the vicinity of 78th Avenue.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that Abraham's second Amended Petition/protest be dismissed with prejudice. DONE and RECOMMENDED this 21st day of October, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 21st day of October, 1987.
Findings Of Fact The Petitioner was acquired by Mr. Farish in November 1985. The Petitioner is a Georgia corporation. In December 1985, the Petitioner bid on a federal contract to provide fuel to federal installations in the southeastern United States. The Petitioner was awarded a contract to provide fuel oil for off-road use at Patrick Air Force Base, which is located in Florida. The Petitioner requested an application from the Department of Revenue for a special fuel license. The Petitioner was sent a motor fuel license application instead of a special fuel license application. The Petitioner filed the motor fuel license application with the Department of Revenue. The Petitioner subsequently filed a special fuel license application. It was received and validated by the Department of Revenue on June 24, 1986. The Petitioner was informed on July 9, 1986, that in order to receive the license, the Petitioner needed to file a copy of a certification to do business in Florida, which could be obtained from the Secretary of State's office. On or about January 9, 1987, the Petitioner forwarded to the Department of Revenue the certification from the Secretary of State's office needed to complete the Petitioner's license application. The Petitioner's special fuel license was issued and became effective January 9, 1987. The Petitioner began purchasing and selling special fuel in Florida on or about April 1, 1986. Between April 1, 1986 and January 9, 1987, the Petitioner paid $7,995.86 in Florida fuel tax liability for purchases of special fuel in Florida. On or about February 25, 1987, the Petitioner filed an application for special fuel tax refund in the amount of $7,995.86. The Respondent denied the tax refund application filed by the Petitioner by Order dated March 18, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order denying the Petitioner's application for refund be issued by the Respondent. DONE and ENTERED this 18th day of August, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 18th day of August 1989. APPENDIX TO RECOMMENDED ORDER CASE No. 87-1641 Only the Respondent filed a proposed Recommended Order containing proposed findings of fact. The Respondent failed to number its proposed findings of fact. The Respondent has, however, only proposed essentially 3 proposed findings of fact: that the Respondent denied the Petitioner's claim for refund and the justification therefore, the Petitioner made four admissions and the Petitioner is a Georgia corporation. The Respondent's first proposed finding of fact has been accepted in paragraph 12, the second proposed finding of fact has been accepted in paragraphs 6-8 and the third proposed finding of fact has been accepted in paragraph 1. COPIES FURNISHED: Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0305 James E. Farish, Jr. President Lincoln Oil Co., Inc. Post Office Box 2904 Gainesville, Georgia 30503-0294 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Tax Section The Capitol Tallahassee, Florida 32399-1050
