Findings Of Fact In 1985, the Florida Legislature created a state satellite telecommunications network, and directed the Department to develop an implementing plan and coordinate this network, including purchasing the equipment and installing the system. This system would be for educational purposes and business teleconferencing, and would consist primarily of satellite receiving stations at 28 existing educational institutions throughout the state. The Department drafted the technical specifications for the equipment to be utilized in the system in consultation with a generally recognized expert in the field of telecommunications. When these specifications were finalized, the Department issued an Invitation to Bid on February 14, 1986. Subsequently, the Department modified the original bid specifications by relaxing some of the requirements, in order to increase the number of vendors capable of providing the equipment. An addendum was issued on March 5, 1986, and another was issued on March 17, 1986. Satellite was on the bidder list and it received a copy of the initial Invitation to Bid, but it did not submit a bid in response to either the initial invitation or to the March 5 addendum. Satellite did, however, compile its bid and submitted it in response to the March 17, 1986, addendum. In all, six companies submitted bids to the Department, including Microdyne whose bid was accepted. Satellite's bid and three others were rejected, and one bid was disqualified because it was not signed. The amount of the Microdyne bid was $569,509. Although the amount of the Satellite bid was $372,550, the Department rejected it because it was not in compliance with the Invitation to Bid and the specifications as amended by the addenda. Section 2.8 of the bid specifications requires that the award be given to the lowest bidder meeting specifications. The Satellite bid was rejected for the following reasons: The survival wind speed of the 5.0 meter dish offered by Satellite was 105 miles per hour. Section 4.4.2 of the bid specifications requires survival at 125 miles per hour. No operational wind speeds were specified by the Satellite bid, as required by Section 4.4.2 of the bid specifications. The ku band feed cross-polarization rejection that was offered by the Satellite bid was 25 decibels. Section 4.4.4 of the bid specifications requires 30 decibels. The receiver specified by the Satellite bid did not include a one- half transponder mode. Sections 4.5.2 and 4.6.1 of the bid specifications require one-half transponder reception on the ku band. The bid submitted by Satellite did not comply with the requirements of the bid specifications for the reasons described in the previous paragraph. The Microdyne bid was in substantial compliance with these specifications. The requirements as specified by the Department which Satellite's bid did not comply with are substantial and material requirements for the system proposed by the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the protest of Satellite Television Engineering, Inc., to Bid No. 85-54 be DISMISSED. This Recommended Order entered this 11th day of August, 1986 in Tallahassee, Florida. WILLIAM B. THOMAS 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 11th day of August, 1986. COPIES FURNISHED: Mr. Richard A. Lotspeich Post Office Box 271 Tallahassee, Florida 32302 Joseph L. Shields, Esquire Knott Building Tallahassee, Florida 32301 Paul Watson Lambert, Esquire J. Riley Davis, Esquire Post Office Box 11189 Tallahassee, Florida 32302 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301
The Issue Whether Respondent violated Section 463.014, Florida Statutes, by violating Rule 64B13-3.008(15)(a), Florida Administrative Code; violated Section 463.014, Florida Statutes, by violating Rule 64B13-3.008(15)(f), Florida Administrative Code; violated Section 463.016(1)(h), Florida Statutes, by violating Rule 64B13-3.009(2)(b), Florida Administrative Code; and violated Section 463.016(1)(f), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact At all times material, Respondent was licensed to practice optometry by the State of Florida, Board of Optometry. On or about April 19, 1998, Respondent entered into a lease agreement captioned "Equipment License," with U.S. Visions, Corp., to lease space and equipment as an optometric office in the J. C. Penney retail store on Mary Esther Avenue, Mary Esther, Florida. This location also constitutes the Santa Rosa Mall. Respondent paid $100.00 monthly rent for this office space. At all times material, Respondent also maintained a separate office for the practice of optometry under the name "Coastal Vision Center" in rental space in Destin, Florida. Respondent paid $2,900.00 monthly rent for the Destin office space. Respondent practiced in both locations during 1998. Respondent practiced under a professional corporation, named Shannon Fowler, O.D., P.A. Respondent's office space at the J.C. Penney location was inside the J.C. Penney retail store. Adjacent to Respondent's office space was the "J.C. Penney Optical Center," in which an optometrist practiced, and in which eyeglasses, contact lenses, and other optical merchandise could be purchased. Respondent personally placed a sign at the entrance to his office space at the J.C. Penney location identifying himself by name, stating that an independent practice of optometry was located there, and stating that he was not affiliated with the J.C. Penney retail store. During the time he practiced at the leased office space located in the J.C. Penney store, Respondent maintained telephones listed in his name at both his office locations. The telephone number for his office in J.C. Penney was different than the telephone number for his Destin office. Only Respondent, himself, answered Respondent's telephone at the J.C. Penney location. This telephone and telephone number were separate and had a different telephone number from the telephones for the J.C. Penney Optical Center. The receptionist at the J.C. Penney Optical Center occasionally made appointments with Respondent for persons who walked into the J. C. Penney Optical Center or who telephoned the J. C. Penney Optical Center telephone, but all such appointments were subject to confirmation by Respondent. There was no formal arrangement or agreement for the J. C. Penney Optical Center receptionist to make appointments over the Optical Center telephone for Respondent, and Respondent did not pay the receptionist. However, Petitioner benefited if the appointments she made were confirmed by him and actually kept by the patient. All of Respondent's patients at either location were advised that Respondent maintained an office in Destin, and all of his patients were advised to call a third telephone number, Respondent's cell phone number, for after-hours or emergency matters. All after-hours matters were handled at the Destin office by Respondent. However, patient files for patients that Respondent saw solely at the J.C. Penney location were stored by Respondent at that location. Respondent had no after-hours access to the J.C. Penney store. If there were an emergency, Respondent would have to obtain the patient's file the following day. At both office locations, Respondent, alone, determined which patients to see, what examinations and procedures to conduct, what optometry services to render, and what fees to charge any patients for his services. The lease agreement for Respondent's office space at J.C. Penney contained provisions precluding U.S. Visions Corp. from interfering with, or regulating, Respondent's independent practice of optometry in the office space he had leased. The lease agreement also contained a provision by which U.S. Vision Corp. covenanted not to violate Florida law. Respondent's lease with U.S. Visions Corp. prohibited his selling "frames, contacts, and related items" at the J.C. Penney location. Respondent did maintain inventory, employ an optometrist, and sell eyeglasses, lenses and frames at the Destin location. Respondent worked out of the J.C. Penney location three half-days per week on Mondays, Tuesdays, and Wednesdays. When requested by the patient, Respondent accepted the J.C. Penney credit card as payment for optometric services rendered at that location. When such card was used by a patient to pay for Respondent's services, J.C. Penney processed the payment and billed the patient directly. J.C. Penney rendered accounting and payment in full to Respondent for services charged on the credit cards on a bi-monthly basis. There is no evidence as to whether payment to Respondent was, or was not, affected by a delinquent payment by a patient to J.C. Penney. Respondent also accepted payment for his services rendered to patients at either location by check, cash, and Visa, Mastercard, and American Express credit cards. The patient elected which manner of payment to tender. Respondent's business records indicate that all of these forms of payment were utilized by patients at both locations. J.C. Penney charged a two-percent (2%) processing fee for the collection and accounting of services charged by patients on their J.C. Penney credit card. This fee, and the manner in which J.C. Penney processed the payments charged to the J. C. Penney credit card, are comparable to, and do not materially differ from, the typical arrangements between small business merchants and issuers of the other major credit cards which Respondent accepted. Unrefuted testimony of a certified public accountant employed by Respondent was to the effect that the financial records of Respondent's two optometry offices for 1998 show no indication that J.C. Penney exercised any influence or control over Respondent's independent practice of optometry or billing practices, and in fact, indicate that J.C. Penney did not. There is no evidence that the Respondent ever used prescription forms or any other forms referring to J.C. Penney at either of his office locations. On July 12, 1998, an advertisement appeared in the Sunday supplement to the "Northwest Florida Daily News" under the heading "J.C. Penney Optical Center," advertising a "FREE eye exam & 50% off frames." In very small print, the advertisement said, "we'll pay for your eye exam for eyeglasses by deducting up to $40 from your prescription eyeglass purchase." The advertisement specified "Santa Rosa Mall." The J.C. Penney Optical Center is not a licensed optometrist. A corporation can never hold an optometrist license. Only an individual can be licensed as an optometrist in Florida. The record is silent as to who or what entity placed the advertisement. Respondent was not named in the advertisement. Respondent did not place the advertisement. There is no evidence that Respondent had any involvement in the text or publication of the advertisement. Respondent did not have any prior knowledge that the advertisement was going to be published. U.S. Visions Corp. had never published any advertisement prior to July 1998, and Respondent did not foresee that the subject advertisement would be published. Respondent had no opportunity or means to prevent the publication of the advertisement. Respondent did not approve of, or consent to, the publication or content of the advertisement. Respondent had no opportunity to review the advertisement prior to publication. The lease for the J.C. Penney office location did not provide for U.S. Vision Corp. to do any advertising for Respondent. Respondent had no arrangements for advertising with either U.S. Vision Corp. or J.C. Penney. Respondent did not contemporaneously see the advertisement. He learned about it only through service of notice of the Department of Health's investigation into the advertisement, which ultimately resulted in this case. No patient or potential patient ever brought the advertisement or the coupon in the advertisement to Respondent or ever requested that the Respondent provide optometry services in accordance with the advertisement or the coupon. Respondent did not provide any optometry services in accordance with the advertisement or coupon, and would not have done so if requested. Respondent received no benefit from the advertisement. Respondent provided no "FREE" eye exams. The Respondent charged $49 per eye exam. The agency's expert witness, a licensed optometrist and former member of the Board of Optometry, testified that he believed that, on its face, the advertisement implied an association or affiliation between Respondent and J.C. Penney; that an optometrist practicing at J.C. Penney could be expected to benefit from the advertisement because of the content of the advertisement; that the advertisement was misleading because a person reading it would expect an eye exam to be "FREE"; and that when there is a lessor-lessee relationship of the type presented in this case, the Respondent optometrist has a responsibility to ensure that advertisements conform to the optometry statute and rules. The same expert witness testified that Chapter 463, Florida Statutes, does not prohibit optometrists from commercial establishments.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Optometry enter a final order dismissing Counts II, III, and IV, finding Respondent guilty of Count I of the Second Amended Administrative Complaint, and issuing a reprimand. DONE AND ENTERED this 2nd day of March, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 2nd day of March, 2001.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Cecile M. Haake, has filed a claim against the bond in the amount of $398.00 alleging that Passport failed to perform on certain contracted services. On December 24, 1990, petitioner responded to a newspaper advertisement promoting a five-day, four-night cruise to the Bahamas for $199.00 per person. The advertisement was run by Travel Partners International (TPI), a telemarketeer selling travel certificates on behalf of Passport. Petitioner purchased a certificate authorizing two persons to take the cruise. For this, she paid $398.00. Shortly thereafter, petitioner received a package with a reservation request form. The form carried the name, address and telephone number of Passport. It should have contained an issue date and the name of the sponsor, but TPI erroneously left that information blank. Ordinarily, a certificate would expire one year after the issue date. Petitioner was not told this when she agreed to purchase the package. Around February 20, 1992, petitioner returned the reservation request form to Passport with a requested travel date of May 1, 1992. On February 26, 1992, Passport returned the form and advised petitioner that "your reservation form was not completed by your sponsor." She was told to have TPI complete the form, and resubmit it with her requested travel dates. By now, however, TPI had gone out of business. Petitioner accordingly filled in TPI's name in the space for the sponsor, and she inserted an issue date of March 15, 1991. This meant her certificate would expire on March 15, 1992, or less than a month later. She again returned the form to Passport. Since her requested travel dates were more than a year after the issue date, Passport declined to accept the reservation. Although in some cases Passport offered to extend certificates for an additional year for a $50.00 fee, there is no evidence that Passport did so in this case. When petitioner requested a refund of her money, Passport's successor corporation, Incentive International Travel, Inc. (Incentive), declined to issue a refund on the ground the package was purchased from TPI and not Passport, and Passport had never received any money from the telemarketeer. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $398.00. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of January, 1995. COPIES FURNISHED: Cecile M. Haake 7254 Quail Meadow Road Charlotte, North Carolina 28210 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue for determination is whether Respondent should grant Petitioner's application for a commercial telephone seller license pursuant to provisions of Chapter 501, Part IV, Florida Statutes.
Findings Of Fact Petitioner is Gerovicap Pharmaceutical Corporation, Inc., a Nevada Corporation. Petitioner was incorporated in 1988. Petitioner has no offices in any state other than Nevada. Petitioner has been operating telemarketing services for a period of approximately 10 years. Respondent is the state agency charged with the enforcement of state regulation of telemarketing businesses in accordance with provisions of Chapter 501, Part IV, Florida Statutes. The application submitted by Petitioner to Respondent for licensure as a commercial telephone seller listed three legal actions taken against Petitioner in the states of Florida, Oregon and Wisconsin. Petitioner entered into an Agreed Permanent Injunction and Final Judgment in the Circuit Court of the 11th Judicial Circuit for Dade County, Florida, on October 5, 1992. At that time, Petitioner accepted responsibility for running a mail advertisement promotion in Florida, advising potential customers to call a toll free number to place orders although Petitioner had not met the State of Florida's registration requirements. As a part of the settlement, Petitioner agreed to refrain from advertising and promoting sweepstakes in Florida in violation of state requirements and paid a total of $2,500 to cover a civil penalty, as well as attorney fees and costs. Petitioner entered into an Assurance of Voluntary Compliance in Circuit Court in Marion County, Oregon, on August 7, 1992. Petitioner agreed at that time to refrain from engaging in telephone solicitations in the state of Oregon and to pay $7,500 in investigative costs and attorney fees to the Oregon Department of Justice. On September 11, 1992, a Consent Judgment was entered in the Circuit Court for Waukesha County, Wisconsin. Based upon the stipulation of the parties, the judgment enjoined Petitioner from engaging in certain sweepstakes activities and ordered Petitioner to pay a civil forfeiture to the state of Wisconsin in the amount of $10,000 for various violations of that state's telemarketing regulations. In accordance with provisions of Section 501.612(1)(c), Florida Statutes, Respondent denied Petitioner's application for licensure in the State of Florida as a commercial telephone seller as a result of the Florida, Oregon and Wisconsin legal actions.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application. DONE AND ENTERED this 20th day of July, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 20th day of July, 1993. APPENDIX The following constitutes my rulings, pursuant to requirements of Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-2. Accepted in substance. 3.-5. Rejected, relevance. 6.-8. Subordinate to HO findings on this point. Rejected, unnecessary. Accepted, but not verbatim. 11.-12. Rejected, argument, relevancy. Accepted. Rejected, weight of the evidence. Rejected, relevancy. Respondent's Proposed Findings 1.-7. Accepted in substance. Rejected, recitation of statute. Accepted. COPIES FURNISHED: Terry Fleischer, President Gerovicap Pharmaceutical Corporation 1785 East Sahara Ave., Suite 160 Las Vegas, Nevada 89104 Jerome A. DePalma, Esquire 3201 South Maryland Parkway Suite 326 Las Vegas, Nevada 89109 John S. Koda, Esquire Office of General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Hon. Bob Crawford Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-1550 Richard Tritschler General Counsel 513 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture Mayo Building, Rm 508 Tallahassee, Florida 32399-0800
The Issue Whether Petitioner violated Rules 25-24.512 and 25-24.515, Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Wilberth Gaviria, owns Gaviria, which is a pay telephone service provider in Miami, Florida, and which holds Certificate No. 3320 from the Florida Public Service Commission (Commission) issued on April 12, 1993. Wilberth and Heiner Gaviria jointly owned a company named South Telecommunications, Inc. (STI). Rule 25-24.511(4), Florida Administrative Code, restricts a pay telephone provider to a single certificate. In March 1996, the Commission denied STI's application for a certificate to provide public pay telephone service because Wilberth Gaviria held major ownership interests in both Gaviria and STI and a certificate had been issued to Gaviria. The Commission also denied STI's application because the Commission determined that STI had willfully misrepresented that it was not providing pay telephone service without a certificate. In May, 1995, the Florida Pay Telephone Association forwarded to the Commission a complaint from Liberty Tel. Inc. (Liberty), a pay telephone service provider in Miami. Liberty alleged that STI, although not issued a certificate by the Commission, was soliciting location owners under contract with Liberty. Liberty alleged that it had received seven letters from an agent of STI, advising that STI had entered into contracts with seven location owners alleged to be under contract with Liberty and requesting that Liberty remove its pay telephones from those locations. In response to the letters, Liberty advised the seven location owners of their contractual obligations to Liberty. Liberty also alleged in its complaint that it had checked three Gaviria pay telephones and found the following violations: local calls were limited to ten minutes for twenty-five cents; charges in excess of tariff for the Miami-Fort Lauderdale extended calling plan; 0+ calls were not routed to the local exchange company; incoming calls were blocked; the 211 repair message was incomplete; and STI nameplates were on the telephones. On October 23, 1995, the Commission received a complaint from Alberto Menendez of Alberto and Sons Meat Market in Miami, alleging that STI failed to return telephone calls concerning two pay telephones which were damaged and out of operation, failed to respond to messages requesting repair, failed to remove the telephones from Mr. Menedez's property until five weeks after a request to do so, and failed to restore the premises to a reasonable condition after removing the telephones. As a result of the complaints from Libery and Mr. Menendez, the Commission staff conducted four field evaluations, beginning in June, 1995. The Commission staff conducts field service evaluations of pay telephones in Florida using a checklist consisting of the following 29 criteria/violations: Telephone was not in service. Telephone was not accessible to the physically handicapped. Telephone number plate was not displayed. Address of responsible party for refunds/repairs was not displayed. Coin-free number for repairs/refunds did not work properly. Current directory was not available. Extended Area Service and Local calls were not $.25 or less. Wiring not properly terminated or in poor condition. Address of pay telephone location was not displayed. Instrument was not reasonably clean. Enclosure was not adequate or free of trash. Glass was chipped or broken. Insufficient light to read instructions at night. Name of provider (as it appears on the certificate) was not displayed. Local Telephone Company responsibility disclaimer was not displayed. Clear and accurate dialing instructions were not displayed. Statement of services not available was not displayed. Automatic coin return function did not operate properly. Incoming calls could not be received/or bell did not ring loud enough. Direct coin free service to the local operator did not work. Direct coin free service to local Directory Assistance did not work. Access to all available interexchange carriers was not available. Coin free service to 911 did not work. 911 could not verify the street address of the pay phone. Transmission was not adequate or contained noise. Did not comply with 0+ interLATA Toll rate cap - AT and T + opr. chg + $.25. Combinations of nickels and dimes did not operate correctly. Dial pad did not function after call was answered. 0 + area code + local number did not go to LEC operator as required. Hereinafter, these violations will be referenced by the number preceding each violation. For example, telephone not in service will be referenced as "1." On June 7, 1995, Ralph King, an evaluator for the Commission evaluated Gaviria pay telephone number 305 751 8327 and found the following violations: 1, 3, 4, 6, 9, 13, and 14. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 8523 and found the following violations: 3, 4, 6, 8, 9, 14, 15, and 16. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 633 9237 and found the following violations: 3, 4, 5, 6, 7, 9, 10, 15, 16, 19, 22, and 29. On June 9, 1995, Mr. King evaluated Gaviria pay telephone number 305 920 9902 and found the following violations: 2, 3, 4, 5, 6, 7, 9, 15, 16, 19, 21, and 22. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 854 9684 and found the following violations: 3, 4, 5, 6, 7, 9, 14, 15, 16, 22, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 854 9087 and found the following violations: 4, 5, 6, 7, 9, 14, 15, 16, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 324 9023 and found the following violations: 6, 9, 14, 15, 16, 22, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 350 9020 and found the following violations: 1, 4, 5, 6, 9, 13, 14, 20, 22, 23, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 350 9096 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 15, 16, 19, 22, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 573 8079 and found the following violations: 3, 4, 5, 6, 7, 9, 19, 22, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 8248 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 19, 22, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 8378 and found the following violations: 1, 3, 4, 5, 6, 7, 9, 13, 14, 16, 19, and 29. On June 6, 1995, Mr. King evaluated Gaviria pay telephone number 305 883 8281 and found the following violations: 4, 5, 6, 9, 13, 14, and 15. On June 6, 1995, Mr. King evaluated Gaviria pay telephone number 305 261 9899 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 15, 16, and 19. On June 8, 1995, Mr. King evaluated Gaviria pay telephone number 305 673 9337 and found the following violations: 4, 5, 6, 7, 9, 13, 22, and 29. On June 8, 1995, Mr. King evaluated Gaviria pay telephone number 305 673 9125 and found the following violations: 4, 5, 6, 7, 9, and 29. On June 8, 1995, Mr. King evaluated Gaviria pay telephone number 305 221 9671 and found the following violations: 4, 5, 6, 11, and 17. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9731 and found the following violations: 4, 6, 14, 15, 16, 22, and 29. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9467 and found the following violations: 4, 5, 6, 7, 14, 19, 21, 22, and 29. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9433 and found the following violations: 4, 5, 6, 14, 22, and 29. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9087 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 15, 16, 17, 19, 22, and 29. On June 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 861 9041 and found the following violations: 4, 5, 6, 7, 14, 15, 16, 19, 22, 27, and 29. On June 14, 1995, Mr. King evaluated Gaviria pay telephone number 305 685 9345 and found the following violations: 4, 5, 6, 7, 14, 15, 16, 19, 22, 27, and 29. On June 14, 1995, Mr. King evaluated Gaviria pay telephone number 305 685 9342 and found the following violations: 4, 5, 6, 7, 9, 14, 15, and 16. The Commission staff advised Gaviria of the June, 1995 service evaluation results on June 14, 1995 by regular mail (File Nos. TE793.9501, TE793.9502), on July 11, 1995, by certified mail (File Nos. TE793.501, TE793.9502), on July 12, 1995 by regular mail (File No. TE793.9503), on August 4, 1995, by certified mail (File No. TE793.9503), each time requiring a response within 15 days and corrective measures. Gaviria did not respond to the June 14, 1995 and July 12, 1995, letters or to the July 11, 1995 and August 4, 1995 follow-up letters. On August 9, 1995, Commission staff transmitted the June 14, 1995, July 11, 1995, July 12, 1995, and August 4, 1995 letters to Gaviria by facsimile and advised Gaviria that it appeared to be in violation of the Commission's rule to report changes in circumstances. On August 10, 1995, Commission staff advised counsel for Gaviria that the letters had been transmitted to Gaviria by facsimile and that Gaviria had stated that it would respond by August 21, 1995. Additionally, Commission staff advised counsel for Gaviria that they would consider recommending that the Commission initiate a show cause proceeding if Gaviria's response was not satisfactory and timely. On August 14, 1995, Gaviria responded to File No. TE793.9501. The response consisted of 56 admissions, 45 claims of vandalism without substantiation, 14 denials without substantiation, and 4 claims that the line was going to be transferred. Commission staff considered the response unsatisfactory. On August 21, 1995, Gaviria responded to File No. TE793.9503. The response consisted of 3 admissions, 42 denials without substantiation, and 1 claim that the line was going to be transferred. Commission staff considered the response unsatisfactory. On September 6, 1995, Commission staff advised counsel for Gaviria that, according to Southern Bell, the four lines Gaviria claimed were going to be transferred in response to File No. TE793.9501 were still assigned to Gaviria's certificate. Commission staff also advised counsel for Gaviria that Gaviria had misinterpreted the Commission's directory availability rule, that it had erroneously responded to the Commission's directory access rule, and that telephone number 305 751 9087 did not have required signage. Counsel was also advised of the procedure required to obtain certification for STI. In September 1995, Commission evaluator King returned to Miami and evaluated 39 Gaviria pay telephones, 19 of which had been evaluated in June, 1995. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 8523 and found the following violations: 4, 6, and 13. On September 11, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 920 9902 and found the following violations: 2, 6, 7, 9, 11, and 19. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 350 9020 and found the following violations: 4, 6, 8, 9, and 24. On September 14, Mr. King re-evaluated Gaviria pay telephones numbered 305 751 8327, 305 350 9096 and 305 751 8378 and found violations 4 and 6 at each of the telephones. On September 13, Mr. King re-evaluated Gaviria pay telephones numbered 305 751 8248, 305 673 9125, and 305 673 9337 and found violations 4 and 6 at each of the telephones. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 883 8281 and found the following violations: 4, 6, 7, 9, and 13. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 261 9899 and found the following violations: 6, 7, 9, 13, and 19. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 221 9671 and found violations 6 and 7. On September 13, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 9732 and found the following violations: 4, 6, and 9. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 9467 and found the following violations: 4, 6, 9, and 20. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 9433 and found the following violations: 4, 6, and 9. On September 13, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 9087 and found the following violations: 4, 6, and 13. On September 12, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 861 9041 and found the following violations: 4, 6, and 27. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 685 9341 and found the following violations: 6, 7, and 9. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9848 and found the following violations: 4, 6, and 19. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 8994 and found violations 4 and 6. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9763 and found the following violations: 2, 4, 6, and 14. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9860 and found the following violations: 4, 6, 19, and 24. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9992 and found the following violations: 4, 6, and 19. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 573 9320 and found the following violations: 2, 6, 13, 14, 15, 16, 17, and 19. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 867 9725 and found the following violations: 3, 4, 6, 9, 13, 14 and 19. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 868 9167 and found the following violations: 3, 4, 6, 9, 13, 14, 15, and 19. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 868 9727 and found the following violations: 4, 6, 9, 13, 19, and 24. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 868 9823 and found the following violations: 4, 6, 13, 19, and 24. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 868 9357 and found the following violations: 4, 6, 9, 19, and 24. On September 14, 1995, Mr. King evaluated Gaviria pay telephones numbered 305 751 9906 and 305 751 9778 and found the following violations for each telephone: 2, 4, and 6. On September 14, 1995, Mr. King evaluated Gaviria pay telephones numbered 305 751 8906 and 305 573 9876 and found violations 4 and 6 at each telephone. On September 15, 1995, Mr. King evaluated Gaviria pay telephones numbered 305 691 9068 and 305 694 9415 and found violations 4 and 6 at each telephone. On September 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 693 9451 and found violation 4. On September 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 694 9415 and found the following violations: 4, 6, 9, 13, and 24. On September 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 883 9851 and found the following violations: 2, 6, 7, and 9. Commission staff advised Gaviria of the September 1995 service results on September 20, 1995 by regular mail (File Nos. TE793.9504, TE793.9505, TE793.9506, TE793.9507), requiring a response within 15 days and corrective measures. On October 2, 1995, counsel for Gaviria wrote to Commission staff stating that Gaviria had been unable to discover the majority of violations upon inspection and that Gaviria believed that the evaluator was intentionally misstating the condition of the telephones. In his letter to Commission staff, counsel for Gaviria suggested a meeting with the evaluator and his supervisor. It was left for counsel to arrange for the meeting, but he did not do so. In November, 1995 two other Commission evaluators conducted an evaluation of two Gaviria pay telephones, one of which had been evaluated previously. For each of the telephones, the evaluators found violations 4 and 6. Commission staff advised Gaviria of the November, 1995 evaluation results on November 14, 1995, by regular mail (File No. TE793.95080), requiring a response within 15 days and corrective measures. On November 26, 1995, Gaviria timely responded to the November 14, 1995 letter; however his response consisted of denials without substantiation. Commission staff considered the response unsatisfactory. On February 8, 1996, Commission staff filed a recommendation that the Commission order Gaviria to show cause why it should not have its certificate revoked or be fined for violations of Commission rules. On March 20, 1996, the Commission issued Order No. PSC-96-0388-FOF-TC, in which it ordered Gaviria to show cause why it should not be fined or why the Commission should not revoke its certificate for violations of Rules 25-24.512 and 25-24.515, Florida Administrative Code. On April 9, 1996, Gaviria timely filed an answer and petition to initiate formal proceedings before the Commission. In March, 1996, Mr. King returned to Miami to re-evaluate Gaviria pay telephone number 305 861 9041 and found the following violations on March 15, 1996: 4, 6, 14, 15, 26, and 29. Commission staff advised Gaviria of the March, 1996 service evaluation results on March 20, 1996, by regular mail (File No. TE793.9601), requiring a response within 15 days and corrective measures. On March 31, 1996, Gaviria timely responded to the March 20, 1996 letter by making denials without substantiation. Commission staff considered the response unsatisfactory. In October 1996, Commission evaluator Chester Wade went to Miami to re-evaluate 23 of Gaviria's pay telephones. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 633 9237 and found the following violations: 1, 3, 6, 9, 14, and 19. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 751 9433 and found the following violations: 6, 9, 11, and 14. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 691 8180 and found the following violations: 2, 6, and 14. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 868 9357 and found the following violations: 6, 9, 14, and 24. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 751 9467 and found the following violations: 6, 14, and 20. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 854 9087 and found violations 6 and 14. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephones numbered 305 751 9732; 305 751 8327; 305 751 8900; 305 751 9906; 305 751 9778; 305 751 8378; 305 573 9876; 305 673 9125; 305 673 9337; 305 861 9041; 305 868 9823; and 305 868 9727 and found violations 6 and 14 for each of the telephones. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephones numbered 305 854 9684; 305 693 9451; 305 694 9415; and 305 691 9068 and found violations 6 and 14 at each telephone. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 751 9087 and found the following violations: 6, 14, and 20. Commission staff advised Gaviria of the October 1996 service evaluation results on November 6, 1996, by regular mail (File Nos. TE793.9603 and TE793.9604), requiring a response within 15 days and corrective measures. On November 20, 1996, Gaviria timely responded to the letter. The response consisted of 31 denials without substantiation; 23 claims of vandalism without substantiation, 2 admissions, and 1 inaccurate claim of ownership. Commission staff considered the response to be unsatisfactory. Commission Staff performed five separate field service evaluations on 38 Gaviria pay telephones, finding a total of 439 violations. Of that total, twenty percent were repeated violations. Contrary to its assertions, Gaviria placed no orders for telephone directories to Bell South Telecommunications in the period June 6, 1995 to September 15, 1996. Gaviria transferred telephones 305 920 9902; 305 883 8281; 305 262 9899; 305 221 9671; and 305 685 9342 only on September 18, 1995, following the Commission's September 1995 evaluation and even then without correcting the violations as it had claimed. The Commission revokes approximately 90 certificates for public convenience and necessity each year for violations as comparatively minor as a failure to pay regulatory assessment fees or to notify the Commission of a change of location. Therefore, to revoke Gaviria's certificate for its more than 425 violations on 38 telephones over a period of 16 months would be proportionate to the offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Wiberth Gaviria has willfully violated Rule 25-24.515, Florida Administrative Code and that his certificate of public convenience and necessity Certificate No. 3320 be revoked. DONE AND ENTERED this 17th day of January, 1997 in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1997. COPIES FURNISHED: Charles J. Pellegrini, Esquire Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Wlberth Gaviria 6156 Southwest 133rd Place Miami, Florida 33183-5131 Blanca Bayo Director of Records and Recording Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 William D. Tallbott, 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
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Cassandra Cook, has filed a claim against the bond for $349.50 alleging that Passport failed to perform on certain contracted services. On April 20, 1989, petitioner received a solicitation telephone call from Global Travel inviting her to purchase a travel certificate entitling her and a companion to a five-day, four-night cruise to the Bahamas. Global Travel was a Tennessee telemarketeer selling travel certificates on behalf of Passport. Petitioner agreed to purchase the certificate and authorized a $349.50 charge on her credit card payable to Global Travel. Thereafter, petitioner received her travel certificate, brochure and video, all carrying the name, address and logo of Passport. In order to use the travel certificate, it was necessary for petitioner to fill out the reservation form with requested dates and return the form, certificate, and a deposit to Passport. Before doing so, petitioner repeatedly attempted to telephone Passport's offices in Daytona Beach to obtain additional information and to inquire about the availability of certain travel dates but was never able to speak to anyone because of busy lines. She then requested a refund of her money and simultaneously filed a complaint with the Department in January 1990. In responding to the complaint in February 1990, Passport denied liability on the ground petitioner was obligated to "deal directly with the company that has charged her credit card as that is who has her money." By then, however, Global Travel was out of business. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $349.50 from the bond. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 December, 1994. COPIES FURNISHED: Cassandra Cook 3818 Firdrona Drive, N. W. Gig Harbor, Washington 98332 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue On September 22, 1994, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Bureau of Timeshare issued a notice to show cause to Erni Hirsch alleging that Ms. Hirsch violated various provisions of Chapter 721, Florida Statutes, regarding vacation and timeshare plans. Specifically, the agency charged that Ms. Hirsch sold multiple timeshare periods as a "successor developer" or "concurrent developer" without providing required notices and filings. The issue is whether the violations occurred and, if so, what penalties and remedial action are appropriate.
Findings Of Fact Erni Hirsch resides in Hollywood, Florida. She has a bachelor's degree in elementary education and a master's degree in public administration, and she has completed a doctorate program in public administration. Prior to 1973, Ms. Hirsch was an elementary school teacher and worked on curriculum for Dade County public schools. From 1973 through 1993, she worked for the Seminole Tribe of Florida setting up adult schools on the reservations, doing grant development and then acting as business manager for the tribe. She was employed full-time by the tribe and worked sometimes sixty to seventy hours a week. She now considers herself retired. Ms. Hirsch is married and has three grown children. The family used to go camping, but in the mid-1980's Ms. Hirsch began purchasing timeshare periods for the family's vacations. She initially purchased a timeshare period in the Hollywood Beach Tower, where she lives, and used it for a beach club and to trade for timeshare periods elsewhere. Ms. Hirsch continued purchasing timeshare periods, upgrading them into better exchange groups. She purchased timeshare periods in other plans, in other cities in Florida and sold them or she traded them in exchange clubs for her personal use and that of her family and friends. While she initially sold timeshares to family and friends, she eventually started advertising timeshare periods in the newspaper, giving her name and home telephone number to contact. In response to inquiries, she sent lists of the various timeshare periods she owned; she also sent letters or information sheets explaining the concept of timesharing and the exchange programs. When she had purchasers, she suggested they get representation by an attorney or title company. She did not receive escrow deposits and did not maintain an escrow account. Any escrow money was held by the attorney or title company. In some cases when purchasers changed their minds before closing, Ms. Hirsch let them have their money back. She never received complaints from purchasers and does not know whether the Department of Business and Professional Regulation (agency) received complaints. As stipulated by Ms. Hirsch, she owned and transferred title from herself to others in thirty-eight timeshare periods in twenty-one timeshare plans, as follows: HOLLYWOOD BEACH HOTEL AND TOWER Project No. PRXI000584: M. Racoma and Helen T. Racoma, No. 305, Wk 25, Deed Recorded 10/11/91 Rolando V. and Concepcion Barcenilla, No. 305, Wk 26, Deed Recorded 10/11/91 HOLLYWOOD BEACH HOTEL Project No. PRXI000186 Jack Sweetser and Virginia Sweetser, No. 604, Wk 22, Deed Recorded 10/4/91 Michael Mikola, No. 603, Wk 27, Deed Recorded 10/23/91 WESTGATE VACATION VILLAS, PHASE I Project No. PRTI000603 Gregory M. Makozy and Maria Makozy, No. B-04, Wk 45, Deed Recorded 9/21/93 Danielle Hirsch, No. A-08, Wk 24, Deed Recorded 2/23/94 WESTGATE VACATION VILLAS, PHASE III Project No. PRTI000608 Paul A. Pritchard and Faith M. Pritchard, No. L9, Wk 13, Deed Recorded 7/23/93 WESTGATE VACATION VILLAS, PHASE IV Project No. PRTI000609 Leonard A. and Louise E. Bussiere, No. K-09, Wk 6, Deed Recorded 4/7/92 WESTGATE VACATION VILLAS, PHASE V Project No. PRTI000610 Sanford Hirsch, No. J-09, Wk 36, Deed Recorded 4/13/94 Ronald T. and Helen D. Reichenbaum, No. G-06, Wk 51, Deed Recorded 11/19/92 WESTGATE VACATION VILLAS, PHASE VII Project No. PRTI000612 Roger L. Deskins, No. P-05, Wk 7, Deed Recorded 4/22/93 Anthony B. and Valerie A. Leatheart, No. X-10, Wk 52, Deed Recorded 2/13/92 WESTGATE VACATION VILLAS, PHASE IX Project No. PRTI000565 Richard D. Penner and Lorna R. Penner, No. U-10, Wk 21, Deed Recorded 3/25/93 Danielle Hirsch, No. V-05, Wk 31, Deed Recorded 2/23/94 Leo and Moreen T. Blanchette, No. T-08, Wk 39, Deed Recorded 9/24/92 WESTGATE VACATION VILLAS, PHASE XI Project No. PRTI000651 Richard and Eileen Wells, No. Q-11, Wk 22, Deed Recorded 1/22/92 RESORT WORLD OF ORLANDO, PHASE I Project No. PRXMI00376 Mitchel Vogel and Bonnie Vogel, No. B-105, Wk 45, Deed Recorded 1/8/93 Delores Miller, No. 212, Wk 46, Deed Recorded 12/23/92 R. P. and M. O. Gardiner, No. B-107, Wk 44, Deed Recorded 7/27/92 R. P. and M. O. Gardiner, No. A-115, Wk 43, Deed Recorded 7/27/92 Annette Carmona, No. C-211, Wk 33, Deed Recorded 9/23/92 Philip J. and Shelagh M. Price, No. 214, Wk 14, Deed Recorded 9/23/92 RESORT WORLD OF ORLANDO, PHASE II Project No. PRXMI00620 Phase II (A) Peter J. and Madeline A. Nolan, No. A-217, Wk 29, Deed Recorded 9/22/92 Phase II (B) George P. and Karen L. Wong, Trustees, No. E-222, Wk 52, Deed Recorded 7/92 Phase II (C) Gregory P. and Carol Gordon, No. C-234, Wk 23, Deed Recorded 8/7/91 Phase II (G) Lillie R. Long, No. 274, Wk 41, Deed Recorded 11/5/92 THE OAKS AT RESORT WORLD, PHASE IV Anthony M. and Debra A. Kozar, No. 425, Wk 15, Deed Recorded 12/2/92 THE SPAS AT RESORT WORLD, PHASE V Mark J. Wilma, Anna E. Wilma, William K. Zelenc and Nicolett J. Zelenc, No. 527, Wk 11, Deed Recorded 6/24/93 CLUB SEVILLA Horace Curry and Sandra E. Curry, No. 321, Wk 44, Deed Recorded 9/20/91 HIGH POINT WORLD RESORT, PHASE I Marc Van Hove, No. 105, Wk 41, Deed Recorded 3/12/92 VISTANA FALLS CONDOMINIUM Robert L. and Hein T. Hopkins, No. 220, Wk 24, Deed Recorded 11/11/93 John T. and Deborah L. Ryan, No. 208, Wk 36, Deed Recorded 7/13/93 VISTANA CONDOMINIUM Project No. PRXPI00605 Prabhas and Madulika Kejriwal, No A-12, Wk 27, Deed Recorded 5/21/93 ORANGE LAKE COUNTRY CLUB VILLAS Project No. PRXPI00325 James O. and Hildegard J.L. Buss, No. 225, Wk 51, Deed Recorded 9/7/93 CLUB ORLANDO VACATION RESORT I Project No. PRTI000652 Mitchel and Bonnie Vogel, No. 144, Wk 18 (even years), Deed Recorded 1/8/93 SAND AND SURF, A CONDOMINIUM Project No. PRXMI00398 Clearwater Properties, Inc., No. 255, Wks 51/52, Deed Recorded 8/3/90 SEVEN SEAS, A CONDOMINIUM Project No. PRXI000431 Bing S. Laj, No. 310, Wk 51, Deed Recorded 10/6/89 Barbara Uzmack, No. 108, Wk 32, Deed Recorded 8/29/88 Each of the timeshare plans is located in the State of Florida. Except for the two grantees named Hirsch, there is no evidence of kinship between Ms. Hirsch and the purchasers. At all times material to the allegations of the order to show cause, each of the timeshare plans was comprised of more than seven timeshare periods over a period of at least three years. The initial purchase price was $1,000 or more in thirty-four of the timeshare periods sold by Ms. Hirsch; in four periods the purchase price was less than $1,000. For each timeshare period the purchaser from Ms. Hirsch was contractually and statutorily obligated to pay a recurring maintenance fee. Ms. Hirsch's income from her sales of timeshare periods was: YEAR TIMESHARE GROSS INCOME TIMESHARE NET INCOME 1995 $ 7,000 ($2,000) 1994 $ 70,000 ($3,000) 1993 $ 75,000 $3,893.02 1992 $109,000 $5,981.12 1991 $ 25,000 $ 500.00 Ms. Hirsch stipulates that, as charged in the notice to show cause with respect to the timeshare periods she offered and sold, she: did not file any public offering statements with the Petitioner for review and approval with respect to the timeshare periods and timeshare plans prior to offering them to the public; did not provide her timeshare purchasers with a public offering statement that had been approved by the Petitioner with respect to the timeshare periods and timeshare plans prior to closing on sales; did not establish an escrow account with an approved escrow agent as to each timeshare plan; did not at any time place all funds or other property received from or on behalf of purchasers into an escrow account with respect to the timeshare plans; closed on sales of the timeshare periods prior to providing her timeshare purchasers with an approved public offering statement; and did not provide Petitioner with the names and addresses of the persons to whom she had sold timeshare periods. During the relevant period Ms. Hirsch did not incorporate as a business, maintain an office outside of her home, maintain a business telephone, or otherwise operate in other than her own individual capacity. Where she lives she is not permitted to operate an office out of her home. The agency began investigating Ms. Hirsch's timeshare sales activities upon complaint from Michael Lucas of American Timeshare Resales, in the Orlando/Kissimmee area. Sometime in 1993, Ms. Hirsch received a notice of the agency's investigation. After being informed of the agency's concern, Ms. Hirsch contacted someone in Orlando with the Department of Business and Professional Regulation's Division of Real Estate. From that contact she understood that she was not subject to regulation as long as she was selling timeshare periods that she owned herself. She also contacted an attorney whom she understood specialized in condominium and timeshare law. She received an opinion letter from another attorney in the same firm, Becker and Poliakoff, P.A. The letter stated that arguably she was not a successor or concurrent developer because she purchased her timeshare periods from individuals who were not themselves developers. The letter concluded there were no cases directly on point and the agency might claim that her sales in the ordinary course of business qualified her as a developer. (Respondent's exhibit no. 2) When the agency did, indeed, pursue its administrative enforcement action, Ms. Hirsch ceased buying and selling timeshare periods. At the time of hearing she had two left, which she used, and she disavowed any further interest in acquiring more. Considering the totality of the facts and circumstances, it is evident that what started as a family vacation program developed into a business pursuit. It is impossible to ignore the volume of the timeshare periods being sold, the active advertising campaign and the gross income being generated (over $100,000 in one year, 1992). The fact that there were net losses or very small net gains only establishes that large sums were being spent in the enterprise. The evidence belies any claim that all of the timeshare periods were acquired by Ms. Hirsch for her own occupancy, even if the trades for other periods in other plans are considered. Ms. Hirsch did not intend to commit any violations and she did not intend to deprive her purchasers of their statutory rights. As a layperson, albeit well-educated and experienced in financial matters, she obviously never considered herself a "developer" of any sort; she relied on advice of counsel in that regard as well. It is evident that Ms. Hirsch unwittingly slipped within the regulatory reach of timeshare law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Business and Professional Regulation enter a final order finding that Ms. Hirsch violated Sections 721.07, 721.08 and 721.10, Florida Statutes, and ordering that she cease and desist. DONE and ENTERED this 21st day of February, 1996, in Tallahassee, Florida. MARY CLARK, 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 21st day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0951 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Adopted in substance in paragraph 5. 4.-5. Adopted in paragraph 6. 6. Adopted in paragraph 7. 7.-10. Adopted in paragraph 8. Accepted as a conclusion of law. Adopted in paragraph 9. Accepted, but unnecessary. The figures speak for themselves. 14.-16. Adopted in substance in paragraphs 5 and 15. 17.-18. Rejected as argument, but incorporated in part in conclusions of law. Rejected. Respondent's testimony is credited, but only to show that she made some attempts to determine her legal obligations. It is accepted that the Division of Real Estate does not regulate timeshares; it does, however, regulate persons who sell or offer to sell real property. Adopted in paragraph 13. 21.-23. Adopted in part in paragraph 13; otherwise rejected as argument or unnecessary. 24. Adopted in substance in paragraph 15. 25.-26. Rejected as unnecessary. Adopted in paragraph 10. Adopted in paragraph 5. Respondent's Proposed Findings of Fact. 1. Adopted in substance in paragraph 2. 2.-3. Adopted in paragraph 3. Rejected as unsubstantiated by the evidence (as to whether she contacted any agency prior to reselling any timeshare period). Accepted that she understood that to be the agency's response. See paragraph 13. 6.-10. Adopted in substance in paragraph 5. 11. Adopted in substance in paragraph 11. 12.-14. Rejected as unnecessary. Adopted in paragraph 12. Rejected as unnecessary. Adopted in paragraph 12, except that she received notice sometime in 1993. 18.-19. Adopted in part in paragraph 13. The opinion letter was more equivocal than characterized in this proposed finding. Rejected as contrary to the weight of evidence. Respondent did not contact counsel until after she was contacted by the agency. Rejected as contrary to the evidence. The purchase price, only, was less than $1,000. 22.-23. Rejected as contrary to the evidence. 24.-25. Addressed in conclusion of law no. 26. COPIES FURNISHED: Laura L. Glenn, Senior Attorney Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Tracy Hirsch, Esquire John Militana, Esquire Militana, Militana and Militana, P.A. 8801 Biscayne Boulevard, Suite 101 Miami Shores, Florida 33138 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 W. James Norred, Acting Director Department of Business and Professional Regulation Division of Florida Land Sales, Condominiums and Mobile Homes Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Department of General Services should disqualify as unresponsive Kodak's bid for Classes 11 and 12, Types I, III, IV of Bid No. 402- 600-38-B, Walk-Up Convenience Copiers, Plain Bond Paper.
Findings Of Fact The Department is the state agency empowered to contract for the purchase, lease, or acquisition of all commodities required by any state agency under competition bidding or by contractual negotiation. On April 26, 1984, the Department issued Invitation to Bid No. 402-600- 38-8 entitled Walk-up Convenience Copiers, Plain Bond Paper. The bid invitation categorized walk-up convenience copiers by type, class, and acquisition plan. The specifications provided for four types and twelve classes of copiers with four acquisition plans--one-year lease, two-year lease, three-year lease, and outright purchase. Kodak responded to the bid invitation on June 26, 1984, by submitting bids on all acquisition plans for the following categories: Type I, Classes 8- 12; Type II, Class 12, Type III, Classes 8-12; and Type IV, Classes 8-12. The Department posted its decision on the Copier Bid on August 9, 1984, at which time the Department indicated its intent to reject all bids submittsd by Kodak on the ground that Kodak's bid contained additional terms and conditions. Addendum A to Kodak's bids contains the language which the Department found to be additional terms and conditions and consists of an explanation of a quantity discount offered by Kodak to all state agencies. Kodak's bids were the lowest bids received by the Department of the two-and three-year lease plans for the following categories: Type I, Classes 11 and 12 Type III, Classes 11 and 12 Type IV, Classes 11 and 12 In addition, Kodak's bids were the lowest bids for the one-year lease plans on Class 12 of Type I, III, and IV. The quantity discount reflected in Addendum A does not affect the bid prices (price per copy made) submitted by Kodak for any of the machine categories or acquisition plans on which Kodak bid and was not considered by the Department in finding Kodak to be the low bidder in those categories specified above. The invitation to bid (ITB) contains general and special conditions. The "general conditions" are conditions that apply to all contracts bid by the state; the "special conditions" are the terms and conditions that apply specifically to the invitation to bid under consideration. The general conditions provide that "[a]ny and all special conditions and specifications attached hereto which vary from these general conditions shall have precedence." Section 4(b) of the general conditions provides: "Under Florida law use of State contracts shall be available to political subdivisions (county, county board of public instruction, municipal, or other local public agency or authority) and State Universities, which may desire to purchase under the terms and conditions of the contract. Such purchases shall be exempt from the competitive bid requirements otherwise applying to their purchases." The special conditions set forth the purpose of the bid as the establishment of "....a 12 month contract for the purchase of Walk-up Convenience Copiers: Plain Bond Paper by all State of Florida agencies and institutions." The purpose provision does not mention political subdivisions. However, several special conditions of the ITB refer to political subdivisions. Under "Estimated Quantities" it states: "It is anticipated that the State of Florida agencies and other eligible users will expend approximately $1,000,000 under any term contract resulting from this bid." Other eligible users include political subdivisions. The condition entitled "Distribution of Literature" provides: "Successful bidder will be required to furnish State agencies and political subdivisions...with descriptive literature..." The condition entitled "Summary of Total Sales" provides that "Total Dollar sales to political subdivisions may be submitted in lieu of the detailed information required for State and university placements." Although political subdivisions may purchase under the terms and conditions of the state copier contract, certain of the special conditions distinquish between state agencies and political subdivisions. As mentioned above, the ITB provides that total dollar sales to political subdivisions may be submitted in lieu of the information required for state and university placement. Further, the ITB requires each bidder to identify its equity accrual plan and sets forth minimum requirements that the plan must meet. One of the minimum requirements refers to State agencies only, directing that "[t]he State shall have the right to transfer the equipment from one State agency to another State agency without the loss of equity accrued." The special condition at issue in this proceeding is entitled" Quantity Discounts". It provides: "Bidder is urged to offer additional discounts for one time delivery of large single orders of any assortment of items." In response to this provision, Kodak included as part of its bid "Addendum A", which reflects the quantity discount offered by Kodak to major customers. The discounts offered by Kodak are based upon the total number of machines installed in state agencies at the time invoices are sent out. If the state has fewer than seventy-five machines installed, it enjoys no discount and pays the full amount indicated on the price sheets submitted in Kodak's bid. If a seventy-fifth machine is installed, the state receives a two percent discount off the bottom line of each monthly invoice on all Kodak machines installed. When the number of Kodak machines exceeds 149 the state receives a three percent discount, and when the number of machines exceeds 199, a four percent discount is applied. When the discount level changes either up or down due to a change in the machine base, Kodak provides 60 days advance written notice prior to applying the new discount level. Kodak's billing system utilizes a computer which tracks the number of machines and applies the quantity discounts. Each individual account or customer has a "custom master" in the computer, which is a computer record consisting of the name of the company, the address, the customer number, and information concerning invoices. The "custom master" is used in billing the customer. When quantity discounts are involved, a master agreement number and/or a common owner number is assigned and that number is placed on each individual custom master in the system that comes under the master agreement. Thus, each individual account has both an individual customer number and a master agreement number. When the computer prepares the bill, it automatically counts the number of machines installed with all customers who share the same master agreement number. Because of the billing system, any machine that is included in the billing is also included in determining the quantity discount. If the machine is not counted in the machine base, the customer is not being charged for the machine. Paragraph II of Addendum A provides: 11. Eligible Users Eligibility under the Quantity Discount Schedule listed below will be exclusively for installations of KODAK EKTAPRINT Copier-Duplicator and Duplicator models within the State of Florida's Government departments, agencies, and State universities. The Quantity Discount Schedule does not apply to installations of KODAK EKTAPRINT Copier-Duplicator and Duplicator models within political subdivisions in the State of Florida (county, county board of public instruction, municipal, or other local public agency or authority). This provision prevents the state from receiving discounts based upon machines purchased by political subdivisions, and also prevents political subdivisions from receiving quantity discount credit for machines placed with state agencies and universities. In other words, the machine base for state agencies and universities would be determined solely by the number of machines installed with state agencies and universities; machines installed within political subdivisions would not be counted in that machine base because political subdivisions would not have the master agreement number assigned to state agencies and universities. Although Kodak contends that each political subdivision would be eligible for quantity discounts based upon the number of machines installed within that particular political subdivision, that provision was not included in Addendum A. Kodak did not address political subdivisions in the quantity discount provision because the purpose of the ITB, as stated in the special conditions, was to establish a contract for state agencies and because the quantity discount provision did not specify that any quantity discounts offered must include political subdivisions. After the copier contract is awarded, each eligible user places its orders for copiers from the contract. The orders do not go through the Department, and the Department does not have a system that indicates how many machines are installed in state agencies and universities. Although the Department does not have a system for independently monitoring the number of machines installed, under Kodak's billing system the state may elect to receive a monthly or quarterly printout which lists each machine installed by its purchaser and provides information relating to the machine's location, type, and acquisition plan. In addition, the state may designate a central location to receive copies of all invoices sent out on each machine installed within the state system. The Department determined that Kodak's bids should be disqualified as containing additional terms and conditions. Specifically, the provision of Addendum A excluding political subdivisions from participation in the quantity discount offered and the Department's inability to independently monitor the quantity discount were identified as the additional terms and conditions. If not for Addendum A, Kodak would have been awarded the contract on the categories for which it was the low bidder. Had Kodak failed to provide any quantity discounts it would have been awarded the contract. Had Kodak omitted Addendum A from its bids, but automatically accorded to the state its quantity discount through its billing system, the state would have paid the discounted prices. The inclusion of Addendum A in its bids does not give Kodak an advantage or benefit not enjoyed by other bidders. All bidders were "urged to offer additional discounts...; however, the quantity discounts offered were not considered in determining the low bidder. Therefore, the inclusion of the quantity discount offered by Kodak could not have given it a competitive advantage not enjoyed by other bidders. The inclusion of Addendum A does not adversely impact the interests of eligible users of state contracts. Had Addendum A not been included in Kodak's bids, Kodak would have been awarded the contract in the categories previously specified, and all eligible users would pay the full contract price. Political subdivisions are not adversely affected by the inclusion of Addendum A because they will pay no more than they would have paid had Kodak failed to provide any quantity discounts. State agencies and universities are not adversely affected by the quantity discount offered because they will pay the same or less than they would have paid had Kodak not included Addendum A.
Recommendation Based on the foregoing, it is RECOMMENDED that the State of Florida, Department of General Services, award to Eastman Kodak Company the following portions of Bid Number 402-600-38- B: Class 11, Types I, III, IV - two and three year lease. Class 12, Types I, III, IV - one, two and three year lease. DONE and ENTERED this 26th day of February, 1985, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1985.
The Issue At issue in this proceeding is whether Respondent, Sergio A. Balsinde ("Respondent") is entitled to elect to be exempt from the workers' compensation insurance coverage requirements of chapter 440, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: The Department is the state agency responsible for enforcing the requirement of the workers' compensation law that employers secure the payment of workers' compensation insurance coverage for their employees and corporate officers. § 440.107(3). A corporate officer may elect to become exempt from the workers' compensation insurance coverage requirements of chapter 440 by complying with the election of exemption methodology set forth in section 440.05. If the election of exemption meets the criteria of section 440.05, then the Department is required to issue a certification of the election to be exempt to the officer. § 440.05(3). A corporate officer is ineligible for an exemption if he is affiliated with "a person who is delinquent in paying a stop-work order and penalty assessment order issued pursuant to section 440.107, or owed pursuant to a court order." § 440.05(15). Balco was originally incorporated in 1985. Mr. Balsinde has been a corporate officer of Balco since at least April 28, 2003, the date of the earliest Balco annual report entered into evidence. Mr. Balsinde is also a corporate officer and 10 percent owner of LC Cable Corp. The Department issued and served a Stop-Work Order and Order of Penalty Assessment on Balco on February 8, 2007. At the final hearing in the instant case, Mr. Balsinde testified that the Stop-Work Order and Order of Penalty Assessment had been erroneously entered against his company. He testified that the uninsured workers in question did not even work for Balco. Mr. Balsinde testified that he had attempted to rectify the error with the Department, but was unable to make the Department acknowledge its mistake. Whatever the merits of Mr. Balsinde's factual claim, neither he nor any other representative of Balco formally challenged the Stop-Work Order and Order of Penalty Assessment. Having long ago become final, the Stop-Work Order and Order of Penalty Assessment cannot be contested in this proceeding. On September 23, 2008, Balco entered into an Amended Payment Agreement Schedule with the Department that called for Balco to make 60 monthly payments, each due on the first day of the month, and a suspension of the Stop-Work Order. After Balco ceased making payments according to the schedule, the Department issued an Order Reinstating Stop-Work Order on October 26, 2009. The reinstatement order was served on Mr. Balsinde on October 30, 2009. As of October 26, 2009, the unpaid balance of the penalty assessment against Balco was $22,236.38, which was ordered due immediately by the reinstatement order. As of the date of the hearing in this case, the balance remained unpaid. Neither Mr. Balsinde nor any other representative of Balco filed a timely request for a review proceeding to challenge the reinstatement order. Balco did not appeal the reinstatement order. On July 22, 2010, a final decree in Chapter 7 bankruptcy was entered on behalf of Mr. Balsinde by the United States Bankruptcy Court for the Southern District of Florida, in Case Number 10-18850-LMI. The discharge in bankruptcy was received by Mr. Balsinde as an individual. Though the final decree listed the Department as an unsecured creditor and Balco as a business of the debtor, Balco did not receive a discharge in bankruptcy, nor did the company file a bankruptcy petition subsequent to the issuance of the reinstatement order by the Department. Mr. Balsinde submitted a Notice of Election to be Exempt to the Department on November 29, 2010, as an officer of LC Cable Corp., a corporation operating in the construction industry. The Department reviewed Mr. Balsinde's application to determine his eligibility to elect the exemption. The Department's Coverage and Compliance Automated System indicated that Mr. Balsinde is the officer of a corporation that is delinquent in paying a Stop-Work Order and Order of Penalty Assessment, which makes him ineligible for an exemption. The Department issued a Notice of Denial of Mr. Balsinde's election of exemption on December 6, 2010.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, finding that Sergio A. Balsinde is ineligible for an election of exemption under section 440.05. DONE AND ENTERED this 18th day of May, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 18th day of May, 2011.
