Findings Of Fact The Petitioner, John Michael Hatcher, is an electrician by training and was employed at times pertinent hereto by the City of Gainesville. His job as an electrician spanned the years 1979 to 1992. He first worked at the Deer Haven Power Plant operated by the City of Gainesville. In 1987, he was transferred to a position as a substation electrician with the City utility entity. His primary duties as a substation electrician involved performing maintenance and repair to high-voltage circuit breakers and other equipment involved in the transmission and distribution of electrical power. Substation electricians perform their work by employing two crews of three members each. On each crew, there were two electricians and one crew leader. The work of substation crews is performed on 90-day schedules. In September of 1992, the Petitioner was suspended from his position for "inability to perform the essential functions of his job" and was ultimately terminated on October 7, 1992. That termination was upheld by the City of Gainesville through its grievance process on November 10, 1992, after exhaustion of the three-step grievance process provided for in the City's collective bargaining agreement. Sometime in 1987, the Petitioner experienced breathing difficulties or respiratory irritation, when in the presence of electric power circuit breaker vapors, related to petroleum products used to cool the circuit breakers. The Respondent installed high-volume ventilation fans at the substation and encouraged the Petitioner to use the fans to remove the noxious vapors from the power circuit breaker area prior to the fume exposure which he states caused his injury. The Respondent also advised the Petitioner to use breathing masks. The ventilation fans proved to be effective in removing the vapors which the Petitioner found irritating in the electric substation environment. The masks were also effective in allowing him to work in that environment without being bothered by the fumes, as he admitted. These steps solved the Petitioner's problem in his main working environment but still left a problem for him when he drove the vehicle he used to get from job site to job site. The Petitioner maintained that he was bothered by exhaust fumes when traveling through downtown traffic in the open van-type vehicle. The Respondent recommended that he wear the breathing mask during this time, as well, and he acknowledged that it was effective in preventing the respiratory irritation that had bothered him when driving or riding in the van. The Petitioner, however, advised that he could not wear the protective mask for very long periods. This was purportedly because the heat and humidity gave him problems wearing the mask for an extended period, although traveling across a town the size of Gainesville did not take a very extended period of time. The protective mask was shown to be effective at his regular work station and in the van. The irritation problem was caused by the Petitioner not timely donning the mask before he became symptomatic. It is not clear exactly when, after mid-1987, the Respondent learned that the Petitioner was purportedly having breathing difficulties in association with his work environment. In any event, during mid-1989, the Respondent, after hearing that the Petitioner had experienced breathing difficulties when in the presence of power circuit breaker vapors, began an independent study of the causes of his complaint. This was in addition to its recommendation that he use the high-volume ventilation fans and the protective masks the Respondent provided. The Respondent's risk management division hired Lipsey & Associates to conduct a toxicology evaluation of the areas in which the Petitioner worked. The air quality in the Petitioner's work environment, tested by this independent firm, was found to be within appropriate air-quality standards or "OSHA" standards. None of the Petitioner's co-workers suffered the symptoms the Petitioner complains of. The Petitioner did not always wear the breathing mask in the work areas where fumes occur nor does he always wear it when driving the van through downtown Gainesville. Because of the Petitioner's health complaints, he was referred to the Family Practice Medical Group and examined by Dr. Marvin Dewar on June 8, 1992. Previously, the Petitioner was examined by Dr. Pravda on April 23, 1991 and diagnosed with sinusitis and asthma. He was examined by Dr. Stringer, an ear, nose and throat specialist, on August 27, 1991, with no physical abnormalities being found. He was also examined by Dr. Gonzalez-Rothi on October 10, 1991, with no significant pulmonary disease being found. He was then diagnosed with a "sinobronchial syndrome". During this period of time, beginning in 1989, the Petitioner's attendance for his various evaluation periods was rated "conditional" and "below average" (in 1990-1991). In 1992, he received a score of "2" (out of 10) for below-average attendance. His absences in the 1992 evaluation period increased both in number of hours used and number of incidents. The Petitioner attributed his absences during his 1992 evaluation period to a recurring illness caused by his exposure to irritants in the work place. He acknowledged in his testimony, however, that the breathing mask and ventilation fans had helped prevent the problem but that he did not always avail himself of the protective devices on a timely basis to prevent symptoms. Rather, he only wore the masks intermittently after he felt symptomatic with respiratory irritation. Because of his continuing absences, the Respondent finally notified the Petitioner that he was being terminated, due to an inability to perform the essential functions of his job, rather than because of an unwillingness to do so. At the time the Petitioner was notified that his employment would be terminated, he had not ever informed the Respondent, or filed any claim, for an alleged disability. The Respondent was aware that he had a sensitivity to petroleum and automotive fumes, but with the ventilation fans and masks that it had provided, and with the air quality report stemming from the study, the Respondent was of the belief that the Petitioner was able to perform all of the duties of his job as an electrician. It only became convinced that he was unable to perform the essential functions of his job because of the frequency of absences, which failed to improve. An informal conference related to the termination was scheduled for September 17, 1992 and held on September 21, 1992. At this time, the Petitioner had not yet informed the Respondent of any alleged disability, as shown by Mr. Holder's testimony. Although the Petitioner claimed in his testimony that he informed the Respondent of his diagnosis of "chronic fatigue immune system dysfunction" and "idiosyncratic reaction to petroleum vapors" by purportedly giving Mr. Holder, his supervisor, a copy of Dr. Itzkowitz's diagnosis on one of the prescription forms, the credible testimony and evidence is that those diagnoses were not known to the Respondent nor discussed at the September 21, 1992 informal conference. The credible evidence and testimony shows that the Petitioner informed the Respondent that he had found a doctor who had diagnosed his problem and could cure him, but did not mention any handicap or the need for any accommodation at the time of that informal conference. In fact, the Petitioner's testimony in this regard is contradicted in a document he himself wrote, in evidence as Respondent's Exhibit 3. In this self-authored "termination summary," the Petitioner himself states that prior to that September 21, 1992 meeting with management, management personnel did not know he had found a doctor who had diagnosed his condition. The Petitioner attempts to correct this contradiction by testifying that his statement to that effect referred to "upper management" not knowing. This attempted correction is itself contradicted by the Petitioner's statement on direct examination that he believed Mr. Holder would give the prescription form document, supposedly containing his diagnosis, to Mr. Holder's superior, Mr. Williams. Therefore, if, indeed, he had given the diagnosis on the prescription form to Mr. Holder, and if his statement that he believed Mr. Holder would convey it to Mr. Williams and "upper management" is his true belief, how could he then testify that management did not know (unless he really knew he had never informed the Respondent at or before the September 21, 1992 meeting at all)? Indeed, that is found to be the case. The Respondent did not learn of Dr. Itzkowitz's diagnosis until after that conference. In testifying at hearing, the Petitioner presented a "diagnosis" of "chronic fatigue syndrome" and "hypertriglecemia" by presenting a prescription form of Dr. Itzkowitz as Petitioner's Exhibit 2. That form is dated August 24th. The Petitioner stated that he presented it to his supervisor, Mr. Holder, in August or early September of 1992, before his September 14, 1992 suspension. He stated that he believed Mr. Holder would give the document to his superior, Mr. Randy Williams. In contrast, the Respondent presented its Exhibit R-1, which is a copy of the same document on Dr. Itzkowitz's prescription form. This copy is undated. It had been included in a packet of medical information from the Petitioner to the Commission, which contained copies of all the medical information previously submitted to the Respondent by the Petitioner. When asked how the same document could be dated in one version and undated in another, the Petitioner stated that he had received an undated version from Dr. Itzkowitz and had returned it to her for signature, whereupon the date was put on it. Dr. Itzkowitz, in her testimony, however, contradicts this and stated that she "absolutely" dated the document when she originally wrote it. The Petitioner and Dr. Itzkowitz cannot both be right. One of the two is either giving untrue testimony or has a very faulty memory in this regard. In any event, the authenticity of the document containing the purported diagnosis and by which the Petitioner maintains he informed the Respondent of his diagnosis and handicap before his suspension, the September 21, 1992 meeting, and his termination, is called into serious question, as are the motives of the document originators, particularly the Petitioner. It is thus found that the Respondent was not informed of the Petitioner's diagnosis and handicap before the termination and that Mr. Holder's testimony in this regard to the effect that he did not know of any handicap, or the diagnosis upon which the Petitioner relies, before the termination, is accepted as more credible and worthy of belief under these circumstances. The Petitioner's Exhibit 2 is not deemed a credible document. Subsequent to the Petitioner's September 21, 1992 informal conference with the Respondent, Petitioner's physician, Dr. Itzkowitz, sent the Respondent a letter dated September 29, 1992, stating her diagnosis of fibromyalgia and idiosyncratic reaction to petroleum vapors. Dr. Itzkowitz's letter to the Respondent does not state that the Petitioner was able to perform the duties as a substation electrician. The doctor states that he would do well at his previous assignment (power plant electrician). The doctor's September 29, 1992 letter finds "significant, reversible respiratory illness" even though prior medical examinations found no physical abnormalities. The doctor also supplied a "certificate of examining physician", for purposes of the Petitioner's unemployment compensation claim, stating that the Petitioner was unable to work from August 14, 1992 through September 14, 1992. In fact, that was an inaccurate statement because the Petitioner worked all but about four of the days between those two dates. The Petitioner submitted this document to the Department of Labor, Division of Unemployment Compensation, without advising that entity that the information was incorrect and that, indeed, he had been working during most of that period of time. When Dr. Itzkowitz was questioned by the Respondent about the Petitioner's ability to work during that period, following exchange occurred: Do you have any recollection as to whether or not Mr. Hatcher was actually not working during all that period? When Mr. Hatcher came to me, he told me he was not allowed to work. Whether that meant that he was given time off, he was suspended, or what, I have no clue. 2. So, when you say unable to work, you are going from what Mr. Hatcher told you? a. Or what other information was given to me, and again this is only a partial record. I mean I don't have the full record here, and what I do have I can't read. (See Petitioner's Exhibit 1 in evidence) However, according to the information on Respondent's Exhibit 4, the Petitioner became Dr. Itzkowitz's patient on August 14, 1992; and on that same day, the doctor wrote the Petitioner a doctor's excuse to be off work indefinitely. The Petitioner, however, only stayed off work for four days. The Petitioner was asked in this regard: Q. Whose idea was it for you to go back to work, yours or hers? Dr. Itzkowitz being the her. A. Mine, I believe. Q. Did you check with her to see if that was approved? A. Yes. Consequently, when Dr. Itzkowitz filled out the form represented in Respondent's Exhibit 4 in evidence, she must have known that it was not really accurate that the Petitioner was unable to work from August 14, 1992 through September 14, 1992. She authorized the Petitioner to be off work and approved the Petitioner returning to work, if the Petitioner's testimony quoted last above is true, that is. In any event, it has not been credibly demonstrated that the Petitioner had to be off work due to any disability or illness from August 14, 1992 through September 14, 1992. Up to the date of his termination on October 7, 1992, the Petitioner had not actually alleged a disability nor had he requested accommodations for such. He was terminated based upon his inability to perform the essential functions of his job and not because of his handicap. He could not perform the essential functions of his job because he was not there often enough, due to his pattern of frequent absences. He is able to perform the duties of his electrician job without accommodation, aside from the presence of irritating fumes. The problem of the irritating fumes was already alleviated by the voluntary provision of ventilation fans and face masks provided to him by his employer. After his termination on October 7, 1992, the Petitioner appealed to the third level or step of the Respondent's internal grievance procedure and alleged there for the first time that he was handicapped by "chronic fatigue syndrome". He requested accommodations for that alleged disability. The accommodations he requested involved a proposed return to his previous position as a power plant electrician at the Deer Haven Power Plant or the setting up of a rotating assignment, as a full-time position, as well as the allowance of an air-conditioned truck to perform this new position. None of the accommodations requested involved the Petitioner performing the same job and position from which he was terminated. During the period of time the Petitioner was experiencing high absenteeism from 1989 through 1992, purportedly because of his aversion to the fumes, he was encouraged to apply for other positions with the City that would take him away from fumes. The Petitioner stated to the Respondent during his "step 3" grievance conference, after his initial termination, that he considered job openings in the Human Resources Department but had not talked to anyone with that entity or filed an application. Subsequent to his termination, he applied two or three times for a position as a power plant electrician, the position he held before becoming a substation electrician. He falsified his application, where he stated that he had never been discharged or terminated but he was still allowed to take the test for the open position. Instead of testing for the position, however, he called the Respondent before the day of the test and advised the Respondent that he could not take the test due to illness. This is somewhat curious. Since the test was scheduled for the afternoon, it would seem if he wanted to avoid the test due to illness on the day of the test, he would have called on the morning of the test, rather than the day before it was administered to state that he could not take the test due to illness. The Petitioner could have consulted a physician to find out if something could be done to allow him to take the test at a different time and he could have called and requested some accommodation in taking the test, if he believed he was an applicant with a handicap. However, The Petitioner did neither of these things. He simply said he could not take the test due to illness and apparently never sought any alternative time or means of taking the test to become qualified for the position. This calls into question whether the Petitioner genuinely has any interest in returning to work at the power plant. Moreover, in his Petition for Relief, the Petitioner requested that he be reinstated to his former position. Subsequent to his termination, however, he filed a claim for social security benefits. In order to be considered disabled for purposes of social security benefits, a person must be "unable to do any substantial, gainful work due to a medical condition which has lasted or is expected to last for at least 12 months in a row. The condition must be severe enough to keep a person from working not only in his or her usual job but in any other substantial, gainful work." See Respondent's Exhibit 8, in evidence. The Petitioner's testimony at hearing conflicts with his representation of his condition in Respohndent's Exhibit 8. It reveals, in effect, that he did not meet this definition for disability when he unsuccessfully applied for those benefits. He was, and is, not in accord with that definition of disability, is able to work as stated above and seeks reinstatement to his former position with the power plant. The Petitioner stated in his Petition for Relief that his handicap is not hypersensitivity to petroleum vapors but, rather, is a chronic fatigue illness of his immune system, causing immune dysfunction and resulting sensitivity to drugs, allergies, odors, and chemicals. The Petitioner also alleges that the chronic fatigue causes the sensitivity to vapors. At the hearing, he could not point out any single incident of chronic fatigue suffered by him, but which preceded his sensitivity to petroleum vapors, which occurred back in 1987. The medical evidence indicates that prior to his sensitivity to vapors, his health had been good. Fibromyalgia is a chronic condition causing people who suffer from it to have chronic aches most of the time. It is a syndrome, and sufferers often also have associated chronic fatigue. The two terms are synonomous for the same condition. The Petitioner's medical history does not reflect any history of severe or chronic aches. Nothing in his medical records reflects any history of the fatigue syndrome preceding his vapor sensitivity. His allegation that his vapor sensitivity is a symptom of two separate conditions, chronic fatigue and fibromyalgia, is not credible.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered dismissing the Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 31st day of August, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 1st day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-264 Petitioner's Proposed Findings of Fact 1-4. Accepted. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the findings of fact of the Hearing Officer. Rejected, as irrelevant. Rejected, as immaterial. Accepted, but not materially dispositive. 9-11. Accepted, but not itself materially dispositive. 12. Accepted, in terms of describing Dr. Itzkowitz's testimony but not as to its purported material import. 13-15. Accepted, but not itself materially dispositive. 16. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. 17-19. Accepted, but not materially dispositive. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact are accepted to the extent that they are not inconsistent with the findings of fact made by the Hearing Officer. To the extent that they differ from the Hearing Officer's findings of fact, they are rejected. Certain of the Respondent's proposed findings of fact are omitted as being irrelevant or unnecessary. COPIES FURNISHED: John M. Crotty, Esq. Post Office Drawer 2759 Gainesville, FL 32602 Ronald D. Combs, Esq. Assistant City Attorney II City of Gainesville-Law Department Post Office Box 1110 Gainesville, FL 32602 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
Findings Of Fact Based on the testimony of the witnesses adduced at the hearing and the entire record compiled herein, I make the following: The Beker-Manatee transmission line was planned and given budget approval by Petitioner in 1974. This action was taken by Petitioner as a result of a documented request by Beker Phosphate Corporation to provide high-voltage service to the proposed Beker Phosphate Corporation mine in Manatee County, Florida. Right-of-way acquisition was begun in June, 1975, and more than one- half of the right-of-way has now been acquired by Petitioner. The original projected in-service date for the transmission line was July 1, 1976, however, completion was delayed due to, inter alia, alleged environmental problems encountered by Beker Phosphate Corporation in bringing its phosphate mine into production. Presently, Petitioner plans to complete construction and have the Beker-Manatee transmission line energized by the Spring of 1980. Additionally, Petitioner plans to construct an electrical transmission line between the proposed Keentown substation in Manatee County, and a proposed substation in DeSoto County near Arcadia, Florida, which is called the Whidden Substation. (Herein, sometimes called the Keentown-Whidden transmission line). The Keentown-Whidden transmission line was planned and budgeted by Petitioner during late 1975 as the most appropriate means of satisfying Petitioner's needs including providing reliable and adequate service to the Arcadia area; to provide service for specific customers (future) near the Keentown-Whidden transmission line and utilization of its existing facilities including existing transmission lines; to provide bulk power transfer capacity from Manatee into other parts of Petitioner's service area and to improve all transfer capacity between Tampa Bay and the lower west coast of Florida for mutual load supporting generation for emergency and economic reasons. According to its present plans, Petitioner plans to complete construction and have the Keentown-Whidden transmission energized by the summer of 1981, that is more than one year after the Beker-Manatee line is built and energized. On October 14, 1977, Respondent issued a binding letter of interpretation concluding that the Beker-Manatee transmission line is a development of regional impact within the guides of Chapter 380, Florida Statutes, and pertinent regulations since it formed a part of the Keentown-Whidden transmission line. However, in support of this position, Respondent introduced testimony and statements during the hearing indicating that its decision that the subject line is a development of regional inpact is based on five factors as follows: The Beker-Manatee transmission line is a 240 KV line, That the Beker-Manatee Line connects to the Keentown-Whidden transmission line, One of the functions of the Keentown-Whidden transmission line is to transfer bulk power, That the subject line is "the" source of power to energize the Keentown-Whidden transmission line and The Beker-Manatee and Keentown-Whidden lines are inseparable because without the Beker-Manatee transmission line the Keentown-Whidden transmission come not be energized. An examination of these factors revealed that the first three factors are applicable to all 240 KV lines of Petitioner as well as all other power companies. Specifically, testimony was introduced without rebuttal that all other 240 KV transmission lines connect with the subject line as well as the Keentown-Whidden line and form a statewide transmission system in what is commonly referred to as the "Grid". And of course, a primary function of all 240 KV transmission lines is to transmit bulk power. The remaining two factors, when examined, indicate that the Respondent relied on erroneous factors and/or conclusions in reaching its determination that the subject line is a development of regional impact. In this regard, testimony was introduced to the effect that the Beker-Manatee transmission line could be energized through any transmission line within the electrical grid provided the right switching devices were activated. It was also noted that the Keentown-Whidden transmission line could be energized without the Beker-Manatee transmission line provided again that the appropriate switching devices were activated. Throughout the engineering profession, transmission lines are customarily defined by the electric utility industry and by federal and state governmental agencies involved in the regulation of transmission lines, as a line extending from an electric generating power plant to the nearest substation or from a substation to the nearest substation. For example, the Federal Power Commission and the Institute of Electrical and Electronic Engineers' Standard Dictionary of Electrical Terms (1971) define transmission lines in this manner. With this in mind, it was noted that the Beker-Manatee transmission line is a line which extends from a substation to the nearest substation and it does not cross a county line. Respondent failed to demonstrate why the subject transmission line should not be reviewed as similar lines have been throughout the electric utility industry. Consideration was given to Respondent's argument that the subject line must be viewed as an integral electrical transmission line which when completed will connect and cross portions of DeSoto, Hardee and Manatee counties. However, evidence was introduced that when the subject line is completed, it like all other 240 KV lines form a contiguous segment of the entire electrical grid throughout the United States, and in that respect, such a consideration is not a distinguishing factor for this or any other 240 KV transmission line.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Division of State Planning issue a binding letter of interpretation to Florida Power and Light Company holding that the proposed Beker-Manatee line does not meet the criteria of Chapter 380, Florida Statutes, and Section 22F-2.03, Florida Administrative Code and therefore is not a development of regional impact. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 14th day of February, 1978. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue presented is whether Respondent has correctly billed Petitioner in the amount of $5,070.51 for additional electricity consumed between January of 1983 and September 30, 1986.
Findings Of Fact Respondent's meter #5C50349 was installed at 11145 N.W. 3rd Street, Miami, Florida, in February of 1969. Petitioner connected electrical service at that address on March 18, 1977, when he, his wife, and his daughter moved into a mobile home located at that address. They continued to reside there until approximately January 31, 1987. Petitioner was the customer of record during that time period and benefitted from the use of electricity at that address. On September 30, 1986, Kevin Burke, a meter man employed by Respondent, inspected meter #5C50349 at Petitioner's residence. His physical inspection revealed that there were drag marks on the meter disc and that the disc had been lowered. Drag marks and a lowered disc indicate that energy consumption is not being accurately registered on the meter. In addition, the customer's air conditioner was on, but the disc was not rotating. It was clear to Burke that the customer's meter had been physically altered. He replaced the tampered meter with a new meter on that same date. He carefully positioned the tampered meter in a foam-bottom meter can container and transported it to Respondent's storage room for safekeeping. The physical alterations to the meter were not, and could not have been, caused by improper handling by Burke. On November 18, 1986, Petitioner's tampered meter was tested by Respondent's employee Emory Curry. He performed a physical inspection of the meter which revealed that the inner canopy seal had possibly been glued back together, the bearings had been tampered with, the disc had been lowered, and drag marks appeared on the bottom of the disc. Curry then performed a watt-hour test. The full load portion of the test registered only 41.4%, and the light load registered 0. Each test should have resulted in a reading of 100%, plus or minus 2%. The mathematical weighted average for Petitioner's meter was 33.1%. This means that only 33.1% of the electricity actually used in the Taboada household was being recorded on the meter. In effect, Petitioner was not being charged for 66.9% of the energy being consumed at the household. Respondent verifies the accuracy of its watt-hour test weekly in accordance with industry standards. The watt-hour test has been sanctioned by the Florida Public Service Commission. A veri-board test was also performed on the meter. The results of that test were 20 over 8. This means that Petitioner's meter was only registering 8 kw when 20 kw was placed on the meter. The meter should have registered 20 kw. Using the weighted average registration of 33.1% from the meter test card, Respondent backbilled Petitioner's account for the 66.9% of the energy consumed that the meter was not registering. The as-billed amount was subtracted from the computer-generated rebilled amount to determine the amount to backbill. The rebilled amount was determined by a computer program which takes into account the varying franchise fees, fuel adjustment rates, taxes, and other rates in effect for each month of the rebilled period. Based upon that computer program, Respondent backbilled Petitioner for an additional 61,379 kilowatt hours consumed. Respondent's methodology for calculating rebillings is a reasonable estimate for determining the amount of energy consumed where there has been meter tampering. Petitioner's account was backbilled $5,070.51 from January, 1983, to September 30, 1986, the date on which the new meter was set. The January, 1983, date was selected because Respondent had not retained Petitioner's billing records prior to January, 1983. Since Respondent's investigation did not determine whether Petitioner physically altered the meter or whether it was altered by someone else, Respondent treated Petitioner's account as an inherited diversion. Accordingly, Respondent seeks no relief from Petitioner other than payment for the estimated electrical usage. A comparison of Petitioner's bills after the new meter was set on September 30, 1986, with past bills shows that Petitioner's electric consumption almost doubled. Since electrical usage varies throughout the year, a comparison is done by comparing the same month for consecutive years. For example, January bills are compared to January bills, and February bills are compared to other February bills. A valid comparison cannot be done by comparing November to December and December to January. In response to Petitioner's complaint that his tampered meter had been accurate but the new replacement meter was running fast, Respondent removed the replacement meter, replacing it with yet another. The replacement meter was then tested by Respondent and was determined to be 100% accurate. Although Petitioner had some gas appliances, the electrical appliances which existed in his mobile home were capable of consuming the kilowatt hours per month which were rebilled by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Respondent has correctly backbilled Petitioner in the amount of $5,070.51 for additional electricity consumed between January of 1983 and September 30, 1986. DONE and ENTERED this 22nd day of July, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposals labeled introduction and evidence #3 have been rejected as not being supported by the weight of the evidence in this cause. Petitioner's proposal labeled evidence #1 has been rejected as not being supported by any evidence in this cause. Petitioner's proposal labeled evidence #2 has been rejected as not constituting a finding of fact but rather as constituting argument. Petitioner's proposal labeled evidence #4 has been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 1-19 and 22 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 20 and 21 have been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 23 and 24 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. COPIES FURNISHED: Mr. Arturo Taboada 981 S.W. 137th Court Miami, Florida 33184 Steve Feldman, Esquire Florida Power & Light Company Post Office Box 029100 Miami, Florida 33102-9100 Robert V. Elias, Esquire Florida Public Service Commission 101 East Gaines Street Fletcher Building - Room 226 Tallahassee, Florida 32399-0863
The Issue Whether Respondent violated provision of Chapter 75-489, Laws of Florida, as amended, as more specifically alleged in Counts One through Four of the Administrative Complaint dated August 10, 1992 and the First Amendment of the Administrative Complaint, dated November 9, 1992.
The Issue Whether Petitioner is responsible for the payment of electric use at a customer’s rental property.
Findings Of Fact Petitioner, Eddy Grosse, filed a complaint against Respondent, Florida Power and Light Company, alleging that he was not responsible for electric use of tenants of his rental property who failed to pay for their electric use. On August 5, 1996, the Intervenor, Florida Public Service Commission entered a Notice of Proposed Agency Action Order Affirming Liability for Unpaid Balance, holding that Mr. Grosse was liable to the Respondent for the unpaid balance of $871.12. Mr. Grosse requested an administrative hearing on August 26, 1996. The case was forwarded to the Division of Administrative Hearings on December 9, 1996. On January 9, 1997, the undersigned Administrative Law Judge issued a Notice of Hearing by Video, scheduling the final hearing for February 28, 1997. The Notice was sent to Mr. Grosse. The hearing was scheduled to commence at 9:00 a.m. Because of technical difficulties with the video equipment the hearing actually commenced at 10:00 a.m. Mr. Grosse did not appear at the final hearing and did not notify the Division of Administrative Hearings that he would not be appearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order should be entered dismissing Petitioner’s Petition for an Administrative Hearing and finding Petitioner liable for the unpaid balance of $871.12. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of February, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1997. COPIES FURNISHED: William Cochran Keating IV, Esquire Lorna R. Wagner, Esquire Florida Public Service Commission Gerald L. Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 Bob Stone Florida Power and Light Company Law Department 9250 West Flagler Street Miami, Florida 33174 Mr. Eddy Grosse 3501 Southwest 130 Avenue Hollywood, Florida 33027 Blanca Bayo, Director of Recording Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 William D. Talbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Rob Vandiver, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
The Issue Whether Respondent unlawfully tampered with the utility meter at his residence in order to avoid payment of utility charges. Whether Respondent damaged his utility meter as a result of the alleged tampering with his utility meter. Whether the actions of Respondent violated the provisions of Sections 943.1395(5),(6), Florida Statutes and Rule 11B- 27.0011(4)(b), Florida Administrative Code by perpetration of an act which would constitute failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes.
Findings Of Fact Respondent was certified by the Petitioner as a law enforcement officer on August 31, 1971 and was issued certificate number GF-8215. In 1988, Respondent was charged in the County Court of Orange County, Florida with two misdemeanor offenses of willfully altering or tampering with a meter or other apparatus belonging to a utility and theft of utilities, in violation of subsections 812.01(2), Florida Statutes. On April 20, 1988, Respondent entered a plea of nolo contendere to the offence of Theft of Utilities. The court withheld adjudication and placed Respondent on unsupervised probation for a term of one year with the condition that he remain at liberty without violating the law and he complete 50 hours of voluntary service. In addition, Respondent paid approximately $6,000 in restitution to OUC. The state announced a nolle prosequi of Count 1 of the Information. Respondent successfully completed his probationary period. On February 25, 1986, Robert Carney, OUC employee, was dispatched to Respondent's residence in response to Respondent's complaint of "flickering lights". He observed the lugs on the meter base of the electric utility meter, located on the outside screened porch, to be burned out. There was no plastic seal on the meter base at the time of his inspection, and the prongs on the meter looked worn but the meter was operating properly. He advised someone at the residence to call an electrician and left new lugs to be installed. No other services were performed at Respondent's home by OUC. On the same date, Respondent hired an electrical contractor who observed that the right hand jaw assembly was burned out. He replaced the entire jaw assembly and reinstalled the meter. On June 11, 1987, after receiving a complaint, Frank J. Scalletta, Investigator, Revenue Protection Unit, OUC, went to 326 Ventura Avenue, Orlando, the residence of Respondent. He observed the meter, OUC #5C14567, in an inverted position, with the padlock open and the seal intact but lying inside. An electrical meter installed upside down will run backwards and reduce the number of kilowatt hours of electricity that is recorded as being fed into a building, resulting in an incorrect reading. On June 11, 1987 electric meter #5C14567 was removed from the meter box at Respondent's residence. It was replaced with a new electrical meter reading zero, which had been tested on May 26, 1987 and shown to be 99.92% accurate. A seal was installed to the base to avoid tampering. Meter #5C14567 had "shiny blades" down to bare copper on all four blades, which is evidence of possible tampering. Test results on meter #5C14567 indicate that it was operating normally when removed from Respondent's home and that the worn prongs resulted from being pulled and inserted into the meter box from between 50 and 100 times. One of the prongs showed signs of heat damage. Respondent's consumption of electricity was monitored from the date of the installation of the replacement meter until the end of 1989. Comparisons of Respondent's consumption level from 1979 to July, 1987 showed a significant increase in Respondent's consumption of electricity after July 13, 1987. This increase in consumption has been maintained through December, 1989. The comparison indicates that for the month of October 1985 there was a negative (or minus) reading on the meter. Respondent lived alone at 326 Ventura Avenue, Orlando, Florida since 1979, except for a teenage son who resided with him for approximately two months during the year. During the period in question (February, 1986-July, 1987), he had done a substantial amount of overtime and worked a second job when no one was at home. During the summer of 1987, Respondent had surgery on a cyst and he used his hot tub extensively to facilitate the healing of his cyst, resulting in increased electrical consumption. Respondent denied tampering with the meter or knowingly receiving electricity without it being reported for payment. Respondent testified that he entered a plea of nolo contendere to the charge of theft of utilities because the court proceedings had taken six months up to that time and high media attention gave him great anxiety. In addition, legal fees had mounted to over $12,000 and had nearly depleted his savings. Respondent has been a law enforcement officer for over 25 years and has had no prior disciplinary problems. Respondent served for many years with the Winter Park Police Department, was promoted to the rank of Captain with the Orange County Sheriff's Department, and presently serves as Chief of Police for the City of Eatonville, Florida. Several witnesses testified as to Respondent's good character and reputation for truth and honesty in the law enforcement community and the community at large.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the following offense: Failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989). It is further RECOMMENDED that Respondent's certification be suspended for a period of six months, followed by a probationary period of one year, subject to the successful completion of such career development training and counseling as the Commission may impose. DONE AND ENTERED this 4th day of April, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 4th day of April, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Petitioner waived the filing of proposed findings of fact. Proposed Findings of Fact Submitted by Respondent: Accepted: unnumbered paragraphs 1,2,3,4 (on page 1) The remainder of Respondent's proposed findings found on page two through four are accepted in part and rejected in part as: fact and argument intermixed; recitation of testimony of the witness; against the greater weight of the evidence; irrelevant evidence. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Joseph Morrell, Esquire Woolfork, Morrell, and Williams, P.A. Post Office Box 540085 Orlando, FL 32854-0085 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue Whether Petitioner is entitled to additional credit on the challenged examination for licensure.
Findings Of Fact Petitioner, John R. Maroney, is a candidate for licensure as an electrical contractor low voltage applicant. He sat for examination in January 1999. His candidate number is 240024. Respondent, Department of Business and Professional Regulation, Board of Electrical Contractors, is the state agency charged with the responsibility of licensing applicants such as Petitioner. On the examination challenged, Petitioner received a score of 73.00, which was designated a failed status. In order to achieve a pass status Petitioner was required to obtain a score of 75.00. Petitioner timely challenged the results of two questions on the January 1999 examination. First, as to question 49, Petitioner maintained that his answer was reasonable as none of the answers given were correct. Question 49 required applicants to perform a mathematical computation and to select the best answer from those offered. The answer selected by Petitioner was $6.59 from the correct answer. The answer, the one that was given credit, was $4.77 or $1.47 from the correct answer, depending on whether the individual was paid for over-time at a higher rate. In either case the Department’s "correct" answer while not being mathematically accurate was the closer answer to a properly computed answer. The instructions on the examination directed applicants to choose the best answer to each question posed. Thus, while not mathematically accurate, Respondent’s answer to question 49 was the best from those offered. Choosing the best answer was also the issue in question 84 as none of the answers given on the examination accurately describes the cause of the problem. In making his selection, Petitioner admitted he had guessed, as he could not determine how any of the provided answers could decipher the problem he was to solve. Petitioner’s argument in this regard is well made since none of the answers given are attributable to the conditions described. Nevertheless, by process of elimination, an applicant could rule out the options offered by recognizing that two choices related to relay 1 could not contribute to the problem described. As Petitioner selected one of these clearly erroneous options, he cannot be given credit for the choice. As to the two remaining options, while inaccurate, the option that received credit was more likely related to the problem as the stop switch (stop 3) being faulty could cause the described problem if the circuit were to continue to be closed. Petitioner’s answer that described the problem on a relay unrelated to stop 3 would not be the best answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Electrical Contractors’ Licensing Board, enter a final order dismissing Petitioner’s challenge to the examination for licensure. DONE AND ENTERED this 15th day of December, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 15th day of December, 1999. COPIES FURNISHED: Lynne A. Quimby-Pennock Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 John R. Maroney 9641 Northwest 39th Court Cooper City, Florida 33024 Ila Jones, Executive Director Board of Electrical Contractors Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
