Findings Of Fact Johnson Controls, Inc., Petitioner, is a foreign corporation licensed to do business in Florida. It maintains offices in Jacksonville, Tampa, and Miami, employs sixty to eighty employees in this state and conducts business throughout Florida. It holds licenses in twenty-three separate Florida counties and municipalities. Petitioner is a multi-million dollar corporation licensed to do business in forty-nine of the fifty states. It engages in the business of manufacturing electrical components and constructing, installing, and servicing electrical control systems and other phases of electrical contracting work. On November 16, 1978, Petitioner filed with the Florida Electrical Contractors' Licensing Board (Board or Respondent) its application for licensure naming Wilfred Allen Infinger as qualifying agent. Winfred Allen Infinger holds a B.E. degree in technology and construction and a journeyman's electrician license in Pinellas County. He has experience in all phases of electrical contracting work and is fully qualified to serve as qualifying agent of Johnson Controls. On December 5, 1978, the Board returned the application requesting additional information relating to Johnson Control's financial statement and credit standing. On June 29, 1979, Johnson Controls refiled its application including additional financial information. On March 14, 1979, the Board advised Petitioners that the application would be reviewed by the application committee, thereby acknowledging receipt of a complete application. By letter of 8 May 1978, the Board advised applicants that it found in the application insufficient evidence to qualify Johnson Controls to sit for the examination because: Your application failed to meet the qualifications as that of a Florida licensed electrical contractor (468.181(5)) whose services are unlimited in the Electrical Field. The review of your application reflects that Johnson Controls, Inc. is a specialty contractor and presently Florida Statutes, Chapter 468, Part VII does not provide for a licensure of specialty contractors. Thereafter this petition and the petition in Case 79-1145R were filed. Johnson Controls' primary interest in the electrical contracting field involves wiring for temperature and humidity controls, communications and protective systems, and maintenance and repair of these systems. During the period from December 1976 to September 1978, included in Petitioner's application showing type of work performed, twenty-six contracts were listed varying from $5,000 to $300,000 in which Johnson Controls was subcontractor. Although not apparent on the face of the application, most of these subcontracts involved the installation of temperature control equipment and various low-voltage control equipment for life safety systems such as fire alarms and smoke detectors, security, and energy consumption. In the construction and installation of control systems, Johnson Controls performs design work, wires control systems by connecting the various components, installs sensors, motors, conduit, raceways, panels, switches, circuit breakers and power wiring. Although Johnson Controls normally works on voltage no higher than the 440 volt range, it has performed work on high voltage systems in excess of 13,000 volts. In addition, it has wired entire buildings, both industrial and residential, including phase balancing of the circuits. Control wiring is generally considered more complicated, therefore requiring a higher degree of skill, than most residential wiring. Commencing in 1973, Johnson Controls has filed five applications for licensure, including the present application, and all have been denied by the Board. Although the Board denied Johnson Controls' latest application on the grounds that the work it performs was not "unlimited", at the same time the applications of Brown and Root, Inc. and Bechtel Power Corporation were approved. Both of the latter companies are large international contractors whose only work in Florida involves electrical power plant installations. Holding local licenses allows Petitioners to enter into any electrical contract for the area in which licensed. However, if Petitioner is called upon to bid on work in an area in which it is not licensed, it must rely upon a local electrical contractor to perform the work. If the applied for license was granted, Petitioner would be able to bid and work statewide and could also cease paying annual renewal fees for the twenty-three local licenses it now holds. Johnson Controls is financially capable of performing unlimited services in the electrical field. Winfred A. Infinger is qualified by training and experience to serve as qualifying agent for a Florida electrical contractor.
Findings Of Fact Petitioner Luther E. Council, Jr., who is now 32 years old, is no stranger to the business of contracting. His father, Luther E. Council, Sr., began instructing him in the trade when Petitioner was approximately 10 years old. Mr. Council, Sr. operates Council Brothers, Incorporated, a commercial plumbing, heating and air conditioning contracting firm. From July 1969 until July 1973 Petitioner was employed as a plumber by Prescott Plumbing Company in Tallahassee, Florida. His duties included assembling and repairing pipes and fixtures for heating, wastewater, and drainage systems according to specifications and plumbing codes. In September 1973 Petitioner entered the United States Navy where he served as an aviation electrician. He attended numerous training schools including electrical, electronics, and avionics schools at the Naval Air Station in Memphis, Tennessee, and at the Naval Air Station at Cecil Field, Jacksonville, Florida. This instruction included over 1,500 hours of classroom time. After two years of service he was honorably discharged. Upon his discharge from the Navy in 1975, Petitioner went to work for Litton Industries at their Ingalls Shipyard in Pascagoula, Mississippi. He began in the position of Maintenance Electrician B but was promoted to Journeyman in less than six months. After approximately one and a half years at Ingalls Petitioner was hired at Brown & Root Construction Company as a Journeyman Electrician on their electrical termination crew. In that position he was responsible for the termination of all electrical equipment in the steam power plant for Mississippi Power Company. He remained in that position until the plant was shut down. Petitioner then returned to Ingalls where he was a Maintenance Electrician on the automated equipment crew. He maintained and repaired equipment such as boilers, welding machines, x-ray machines, air compressors, bridge cranes, communications equipment, sheet metal shop equipment, and fire and security alarm systems. This period of employment was from July 8, 1976 until February 2, 1977. Thereafter Petitioner was again employed by Brown & Root Construction Company, this time in Axis, Alabama. In his position as Work Leaderman Electrician (assistant foreman) he was responsible for the construction, installation, and termination of all electrical equipment for a particular utilities area at the Shell Chemical Plant. He worked on equipment such as boilers, air compressors, water treatment facilities, pump motors, hot oil furnaces instruments, monitoring and control panels, and incinerators with a crew of up to 18 men. Petitioner did not have a foreman but was directly responsible to the project superintendent. From June 1978 until June 1979 Petitioner was employed as an electrician by Union Carbide in Theodore, Alabama. As the only electrician on duty at night, Mr. Council was responsible for the electrical maintenance of all machinery ranging from the power plant distribution system to overhead bridge cranes to small electronic devices. Included within his responsibilities were maintaining air conditioning systems, interior and exterior lighting systems, and repairing huge sandblasting equipment. Upon completion of his work for Union Carbide he returned home to Council Brothers, Inc. Since his return to Council Brothers in June of 1979 Petitioner has had a variety of responsible duties. His functions can be placed in two categories: roving foreman and estimator. Council Brothers is a mechanical contractor with a gross profit of over 1.1 million dollars for the year 1983. Some of the firm's recent projects include installing heating, ventilation and air conditioning (HVAC) equipment at several local high schools; pressurizing the stairwells and elevator shafts in the State Capitol building, modification of HVAC systems at several state office buildings in Tallahassee, Florida, and renovation work at the State Hospital in Chattahoochee, Florida. As an estimator Petitioner supervises the project design and is responsible for the firm's mechanical contracting projects. On most of its projects Council Brothers is the general contractor for the mechanical work. It then subcontracts out the specific electrical work required. In his capacity as a roving foreman Respondent serves as a trouble shooter available to assist those projects which may encounter particular problems. He is then responsible for solving the problems through a redesign of the project, the use of alternative equipment, or some other means. Since August of 1981 however, Mr. Council has spent most of his time in the office estimating and bidding jobs. On August 4, 1983 Petitioner became Vice-President of Council Brothers, Inc. The firm first registered as an electrical contractor in June 1983. Petitioner holds licenses as a certified building contractor, plumbing contractor, mechanical contractor and underground utilities contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Electrical Contractors Licensing Board enter a Final Order denying Petitioner permission to take the examination for licensure as a certified electrical contractor. DONE and RECOMMENDED this 14th February, 1984, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 14th day of February, 1984.
Findings Of Fact Petitioner has been employed for several years as Projects Manager for Fred McGilvray, Inc., a large general and mechanical contracting firm. He is licensed by the Construction Industry Licensing Board as a certified mechanical contractor and as a certified general contractor, but he has never been licensed as an electrical contractor in Florida or any other State, or in any county or municipality in Florida. Petitioner submitted to the Board with his application for statewide certification as an electrical contractor, a list of jobs which he supervised in his capacity as Projects Manager for Fred McGilvray, Inc. Petitioner did not obtain any electrical permits for these jobs. All of the electrical work was subcontracted to electrical contractors except for some occasions when the job involved maintenance work that did not require an electrical permit. Under the terms of the electrical subcontracts entered into by petitioner's employer and the electrical subcontractors, the responsibility for the performance of the electrical work vested with the electrical contractor and not petitioner. In addition, the legal responsibility to ensure that the electrical work complied with all applicable local safety codes vested with the electrical contractor. Accordingly, the job functions performed by petitioner are not equivalent to those performed by an electrical contractor.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of B. J. Geissinger be dismissed. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1980. COPIES FURNISHED: Jeffrey C. Coon and Steven M. Robey, Esquires Suite 40 8585 Sunset Drive Miami, Florida 33143 Patricia R. Gleason, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32301
The Issue Whether Respondent violated provisions of Petitioner’s Human Resources Manual and Employee Handbook (“the Manual”) on May 18, 23, 24, and 31, 2018, as charged in the agency action letter dated June 25, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. During the relevant time period, ECUA employed Mr. Baker as the utility service worker in the patch services division (“the patch crew”). Mr. Baker acknowledged on April 22, 2013, that a copy of the Manual was made available to him. The patch crew consists of eight people who normally work from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break. Mr. Baker usually performed asphalt repairs or assisted other patch crew members with their tasks. The patch crew’s supervisor assigns work to the patch crew each day. If the crew completes all of its assigned tasks prior to 3:30 p.m., there is no policy or Manual provision allowing them to leave work early and count that as work time. Mr. Baker would normally begin each workday by reporting to an ECUA building on Sturdevant Street where the patch crew’s trucks are maintained. Many ECUA vehicles carry global positioning devices (“GPS”) that transmit the vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. ECUA vehicle #1622 had such a device and was normally driven by Mr. Baker or Tadarel Page. An anonymous e-mail to Gerry Piscopo, ECUA’s Deputy Executive Director of Maintenance and Construction, alleged that the patch crew was incurring overtime by intentionally being lackadaisical in completing work assignments. As a result, ECUA initiated an investigation of the patch crew’s daily activities. In addition to monitoring the GPS reports from the vehicles, ECUA retained a private investigator, Terry Willette, to surveil the patch crew and videotape their work or lack thereof. From April of 2018 to some point in June of 2018, Mr. Willette routinely surveilled the patch crew for 4 to 12 hours a day. Findings Regarding the Allegations from May 18, 2018 The May 18, 2018, GPS report for vehicle #1622 records that the truck was parked at a local seafood restaurant on 610 South C Street from 11:43 a.m. until 1:17 p.m. Because the patch crew is only allotted a 30-minute lunch break, this extended stop at the local seafood restaurant would almost certainly amount to a violation of multiple Manual provisions unless weather conditions (such as heavy rain) made it infeasible to attempt asphalt repairs. Mr. Baker testified without contradiction that it was raining when the patch crew was at the seafood restaurant, and there was no evidence as to whether ECUA had a policy governing what the patch crew was to do when it was raining. With no evidence to contradict Mr. Baker’s testimony about the weather conditions or what the patch crew is capable of doing when it is raining, ECUA did not prove by a preponderance of the evidence that Mr. Baker falsely claimed that he worked eight hours and took a 30-minute lunch on May 18, 2018. Findings Regarding the Allegations from May 23, 2018 The May 23, 2018, GPS report for vehicle #1622 indicates that the truck was parked at Mr. Baker’s home from 9:33 a.m. to 9:46 a.m. Mr. Baker does not dispute that he stopped at his home at that time. However, he asserts that he took no actual lunch break on May 23, 2018. Therefore, he argues that the 13-minute stop at his home should be of no concern to ECUA. Nothing in the Manual specifies that ECUA employees must take their lunch break at a certain time. The May 23, 2018, GPS report indicates that vehicle #1622 stopped at 3116 Godwin Lane from 11:43 a.m. to 12:47 p.m. However, there is no record evidence indicating what is at that address. Therefore, it cannot be found that the stop at 3116 Godwin Lane amounted to a lunch break. The ECUA failed to prove by a preponderance of the evidence that Mr. Baker effectively abandoned his work when he drove vehicle #1622 to his home and stayed for 13 minutes on May 23, 2018. Findings Regarding the Allegations from May 24 and May 31, 2018 Mr. Baker’s timesheet for May 24, 2018, indicates he reported to work at 6:59 a.m. and worked until 3:30 p.m. On May 24, 2018, Mr. Willette observed Mr. Baker at 12:59 p.m. leaving the ECUA building where he begins and ends each workday. A GPS report records that vehicle #1622 was not driven after 12:56 p.m. on May 24, 2018. Mr. Baker’s timesheet for May 31, 2018, indicates he reported to work at 6:59 a.m. and worked until 3:30 p.m. On May 31, 2018, Mr. Willette observed Mr. Baker at 3:09 p.m. leaving the ECUA building where he begins and ends each workday. A GPS report records that vehicle #1622 was not driven after 3:10 p.m. on May 31, 2018. Mr. Baker does not dispute that he left work at 12:59 p.m. on May 24, 2018, and at 3:09 p.m. on May 31, 2018. Mr. Baker testified that he had permission from Greg Rigby, the patch crew’s supervisor, to leave early on those days. As for why his timesheets indicated that he left at 3:30 p.m. on both days, Mr. Baker explained that the individual patch crew members did not fill out their timesheets. Instead, Mr. Rigby or his assistant supervisor, Robert Boyd, Sr., entered each patch crew member’s time into the timekeeping system. ECUA proved by a preponderance of the evidence that Mr. Baker’s timesheets for May 24, 2018, and May 31, 2018, were inaccurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Dalton B. Baker violated Section B-3, attendance records; and Section B-13 A (33), violation of ECUA rules or guidelines or state or Federal law. DONE AND ENTERED this 18th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2018.
The Issue The issues for determination in this case are whether certain provisions of the 1993 Florida Utility Accommodation Manual which have been adopted by Respondent, the FLORIDA DEPARTMENT OF TRANSPORTATION, as rules by reference in Rule 14-46.001(3), Florida Administrative Code, constitute invalid exercises of delegated legislative authority. The specific provisions of the 1993 Florida Utility Accommodation Manual which are at issue include the definitions of "utility" and "utility facilities" (page 4), the "no monetary gain" provision (page 7), and the "joint use" provision (page 12). In addition, Petitioners raised an issue as to whether Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION violated Section 120.535, Florida Statutes, by failing to adopt by rule certain agency requests for information from Petitioner regarding costs associated with the installation and maintenance of utility poles.
Findings Of Fact Petitioner, WITHLACOOCHEE RIVER ELECTRIC COOPERATIVE (WITHLACOOCHEE), is a cooperatively-owned utility operating in the State of Florida. Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT), is the agency of the State of Florida vested with jurisdiction over the regulation of the use of state rights-of-way along, across, or on any public roads or publicly owned rail corridors. WITHLACOOCHEE owns utility poles which are located in state rights-of- way FDOT has promulgated rules for the regulation of the usage of the state rights-of-way by utilities, including cooperatively-owned utilities such as WITHLACOOCHEE. WITHLACOOCHEE holds valid permits issued by FDOT which authorize and regulate the placement of its utility poles on state rights-of way. FDOT does not receive from WITHLACOOCHEE any fees or other compensation for the placement of its utility poles on state rights-of-way. Intervenor, TIME WARNER ENTERTAINMENT COMPANY, L.P. (TIME WARNER), is in the business of providing cable television service throughout the State of Florida, and has placed and maintains cable television lines within the state rights-of way. Cable television lines are structures similar to telephone, telegraph and other lines transmitting communications. Intervenor, TIME WARNER, (including its predecessors), and WITHLACOOCHEE have been joint users of the state rights-of-way in Pasco, Hernando, and Citrus Counties since before 1982. Intervenor, TIME WARNER, including its predecessors, and WITHLACOOCHEE have entered into pole sharing agreements regarding the placement and maintenance of TIME WARNER's cable television lines on WITHLACOOCHEE's utility poles. On or about November of 1994, the pole sharing agreements between TIME WARNER and WITHLACOOCHEE terminated. Prior to the termination of the pole sharing agreements, on April 13, 1994, TIME WARNER filed a petition with FDOT requesting that FDOT address and resolve the dispute with WITHLACOOCHEE. The TIME WARNER petition was the first such petition ever filed with FDOT. By order dated June 14, 1995, FDOT denied WITHLACOOCHEE's Motion to Dismiss the TIME WARNER petition. In an effort to collect information regarding the petition, FDOT by letter dated July 6, 1994, and subsequently by Show Cause Order entered June 14, 1995, requested pole cost information from WITHLACOOCHEE. On June 30, 1995, WITHLACOOCHEE responded to the Show Cause Order, contesting the authority of FDOT to request such information. FDOT has not promulgated rules with respect to the request of costs associated with installation and maintenance of utility poles or other such information from a utility. STANDING OF INTERVENOR FLORIDA POWER CORPORATION On September 22, 1995, FLORIDA POWER CORPORATION (FLORIDA POWER), filed a Petition for Leave to Intervene in these proceedings alleging that it is a utility in the State of Florida, that it owns poles in the state rights-of- way, that it has entered into pole sharing agreements with cable television companies which set rates that the cable television companies will pay to FLORIDA POWER to attach their cables to FLORIDA POWER's poles. These allegations were not disputed. Respondent FDOT and Intervenor TIME WARNER contend that FLORIDA POWER lacks standing because under 47 U.S.C. s. 224, the Federal Communications Commission, and not FDOT, has authority to regulate the rates, terms, and conditions for attachments by cable television systems, and therefore the substantial interests of FLORIDA POWER are not affected in this proceeding. FLORIDA POWER's substantial interests are affected by a determination of FDOT's definition of "utility" and "utility facilities", and by a determination of the extent to which FDOT has jurisdiction over the regulation of the use of the state rights-of-way by utilities. FLORIDA POWER has a substantial interest in the determination of the application of federal and state statutes in this regard, and should not be foreclosed from presenting its position in these proceedings. CHALLENGE TO ADOPTED RULES WITHLACOOCHEE challenges three provisions contained in the 1993 Florida Utility Accommodation Manual (Manual). FDOT has adopted the Manual as a rule by reference in Rule 14-46.001(3), Florida Administrative Code. Specifically, WITHLACOOCHEE challenges the Manual's definition of "utility" and "utility facilities", (page 4), the "no monetary gain" provision, (page 7), and the "joint use" provision, (page 12). The Manual provides guidelines for the issuance of utility permits on public roads maintained by FDOT. A version of the Manual has been in existence since at least 1964. The 1993 edition of the Manual contains, on page 5, a statement of intent which provides in pertinent part: This Manual is established to regulate the location, manner, installation and adjustment of utility facilities along, across, under or on any right-of-way under the jurisdiction of the FDOT. This Manual also is used for issuing permits for such work which is in the interest of safety, protection, utilization and future development of the highways with due consideration given to public serves afforded by adequate and economical utility installations as authorized under Section 337.403, Florida Statutes and Florida Administrative Code Rule 14-46.001. Adherence shall be required under the circumstances set forth in this Manual. Where actual field conditions vary from those outlined in this Manual, disputes may arise as to what accommodation criteria is appropriate under the actual conditions. Such disputes which cannot be resolved at the local or District level by mutual agreement shall be referred to the State Utility Administrator or designee for final resolution. While this Manual governs matters concerning future location, manner and methods for the installa- tion or adjustments and maintenance of utilities on FDOT right-of-way, it does not alter current regulations pertaining to authority for their installation nor does it determine financial responsibilities for placement or adjustment thereof. The Manual is prepared with the consultation and cooperation of the Florida Utilities Coordinating Committee (Committee). The Committee is a voluntary private organization comprised of representatives from various utilities, including cooperatively owned utilities, that coordinates and communicates with FDOT on issues impacting both the utility industries and FDOT. The Committee meets with representatives of FDOT on a regular basis to develop policy recommendations on such issues. The Committee worked with representatives of FDOT in developing the 1993 edition of the Manual. Members of the Committee had knowledge of the provisions of the 1993 edition of the Manual prior to adoption of the Manual as a rule by FDOT. Definition of "Utility" and "Utility Facilities" In 1993 the Manual was amended to include "television transmission signals" within the definitions of "utility" and "utility facilities" on page 4 of the Manual. Specifically, the Manual provides: Utility - All privately, publicly or cooperatively owned lines, facilities and systems for producing, transmitting or distributing communications, power, electric- ity, light, heat, gas, oil, crude products, water, steam, waste and storm water not connected with highway drainage, and other similar commodities, including television transmission signals, publicly owned fire and police signal systems and street lighting systems, which directly or indirectly serve the public or any part thereof. The term "Utility" shall also mean the UAO, inclusive of wholly owned or controlled subsidiary. Utility Facilities - All privately, or publicly or cooperatively owned lines, facilities and systems for producing, trans- mitting or distributing communications, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with highway drainage and other similar commodities, including television transmission signals, fire and police signal system and street lighting systems, which directly or indirectly serve the Public or any part thereof. The 1993 amendment to the Manual to include television transmission signals within the definitions of "utility" and "utility facilities" was adopted at the request of the Committee. Television transmission signals are transmitted by structures similar to other utilities and utility facilities as defined in the Manual. Joint Use Provisions The accommodations standards set forth in the Manual, (page 12), provide for the basic requirements governing location of utility installations on state rights-of way. These requirements include a general requirement that for installation of overhead utilities, one side of the right-of-way is reserved for communication lines, and one side for power lines. The basis for this requirement is that the greater number of structures placed in the right-of-way increases the risk of accidents to the traveling public. It is in the interest of safety for the traveling public for FDOT to minimize the number of structures placed in the state rights-of way. In Florida, between 1990 and 1993, vehicle collisions with utility poles resulted in 297 deaths. Under conditions found in Florida, the density of poles or other structures in the right-of-way is the factor most closely identified with the number of such vehicle accidents. Since at least 1964, FDOT has required that in cases where more than one utility agency or owner (UAO) proposes an aerial installation on the same side of a highway, a joint use arrangement must be agreed to by the UAOs. This provision is also contained in the 1993 Manual, and specifically provides: For the installation of overhead utilities, one side of the right-of-way is usually reserved for communication lines and the other side is reserved for power lines. In situations where underground and overhead utilities occupy the same side of the roadway, the overhead facility should be placed on the outside of the underground facility to provide the maximum clear roadside recovery area possible. In cases where more than one UAO proposes an aerial installation on the same side of the highway, a joint-use arrangement must be agreed to by the UAOS. Only single pole lines shall be permitted on each side of FDOT's right-of-way. Any exception must be amply justified and approved by the State Utility Administrator or designee. In cases where the UAOS cannot agree, the dispute shall be referred to the State Utility Administrator or designee whose determination shall be final. This does not prohibit a single UAO from occupying both sides of the right-of-way when there are no objections from other UAOS if proper justification is provided to the FDOT, and there is only one pole line on each side of the right-of-way. As indicated above, in cases where the UAOs cannot agree, the Manual provides that the State Utility Administrator or his designee shall resolve the dispute. Until this dispute arose between WITHLACOOCHEE and TIME WARNER, FDOT had not been petitioned to resolve a joint use dispute between a power company and cable television company. No Monetary Gain Provision Contained in the provisions of the Manual setting forth the requirements for making application to use the state right-of-way, there is a prohibition against use of the state right-of-way for profit. Specifically, the Manual on page 5 provides: No individual, firm, company or governmental agency may be permitted to use the FDOT right-of-way for monetary gain except where provided for by the Public Service Commission, Federal Energy Regulatory Commission, or Federal Communications Commission. This provision was adopted in response to complaints received by FDOT that utilities were making a profit from use of the state rights-of-way. Specifically, FDOT had been informed that a company was constructing surplus conduits in the state rights-of-way for the purpose of leasing the use of the conduit to other utilities. Conduit, like poles, is used for communications distribution systems. The provision was drafted by Richard Larry Noles, an FDOT employee. The provision was provided to the Committee prior to adoption, and was accepted by the Committee with the addition of the provision to allow for monetary gain where provided for by the Public Service Commission, Federal Energy Regulatory Commission, or Federal Communications Commission. Cooperatively-owned utilities, including WITHLACOOCHEE, are not exempted from the no monetary gain provision. The intent of the no monetary gain provision is to provide equal access to all users of the state rights-of-way, and to prevent subsidization of one utility at the expense of the customers of another utility. It is not the purpose of the no monetary gain provision to determine the rates charged to customers of a utility.
