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
Findings Of Fact There is no dispute as to the facts involved in this rule challenge. Johnson Controls, Inc. is a large corporation operating throughout the United States. It engages in the business of manufacturing electrical components and in constructing, installing and servicing electrical control systems and other phases of electrical contracting work. As its name implies, Johnson Controls' primary emphasis in the electrical field is in selling, installing, and maintaining systems for fire, security, heating, air conditioning, and energy consumption controls. Johnson Controls is presently licensed to do electrical contracting work by 23 counties and municipalities in Florida and in 49 of the 50 states. Winfred Allen Infinger holds a B. E. degree in Technology and Construction, a journeyman electrician's license in Pinellas County, and is fully qualified by training and experience to be the qualifying agent of Johnson Controls in this application. In its letter of May 8, 1979 denying petitioner's application, Respondent, through its executive director, stated the following grounds: Your application failed to meet the qualification as that of a Florida licensed electrical contractor (468.181(5)) whose services are unlimited in the Electrical Field. The review of your application reflects that Johnson Controls, Inc., is a specialty contractor and presently Florida Statutes, Chapter 468, Part VII does not provide for licensure of specialty contractors.
The Issue Pursuant to Section 403.508(2), Florida Statutes, the sole issue for determination in this case is whether the proposed site for the Petitioner’s electrical power plant “is consistent and in compliance with existing land use plans and zoning ordinances.” (All statutory references are to the 2001 codification of the Florida Statutes.)
Findings Of Fact The Petitioner Calpine intends to license, construct, own, and operate a new electrical power plant in unincorporated Indian River County, Florida. Calpine filed an application with DEP under the PPSA for the proposed electrical power plant, which is known as the Blue Heron Energy Center ("the Project"). The Site for the Blue Heron Energy Center The site (“Site”) for the Blue Heron Energy Center is located in southeastern Indian River County, approximately 5 miles southwest of the City of Vero Beach. The Site is approximately 50.5 acres in size and is currently undeveloped. The primary vegetation on the Site is pine flatwoods. The Site contains two small wetlands that will be preserved. The general area surrounding the Site is a mixture of agricultural, industrial, institutional, utility and residential land uses. The Interstate 95 ("I-95") corridor is adjacent to the west side of the Site. Just west of the I-95 corridor are two existing electrical transmission line corridors operated by Florida Power & Light Company ("FPL"). There is an existing natural gas pipeline owned by Florida Gas Transmission Company located between the two electrical transmission line corridors. The Indian River County Correctional Institution is located directly northwest of the Site. Farther to the north are Indian River County's landfill and several industrial (citrus processing) facilities. There also is one single-family residence located north of the Site. The eastern boundary of the Site is adjacent to 74th Avenue, which is adjacent to a drainage ditch known as the Lateral C Canal. A citrus grove and an industrial wastewater sprayfield are located on the east side of the Lateral C Canal. The southern boundary of the Site abuts the border between Indian River County and St. Lucie County. The I-95 corridor and undeveloped lands lie south of the Site in St. Lucie County. Southeast of the Site, in St. Lucie County, is a residential development known as Spanish Lakes Fairways. The Site is separated from this residential development by a drainage ditch, a berm, and an existing buffer of mature trees and dense vegetation. Description of the Proposed Blue Heron Project The Blue Heron Energy Center will involve the construction and operation of a combined cycle, natural gas- fired, electrical power plant that will generate approximately 1080 MW (nominal). The Blue Heron Project will be built in two phases, each generating approximately 540 MW (nominal). The first phase of the Project will include two combustion turbines, two heat recovery steam generators, a steam turbine, exhaust stacks, cooling towers, a treatment and storage system for process water, a treatment system and detention basin for storm water, an operations control center, transformers and related switching gear, and other ancillary structures and features. The second phase of the Project will be similar to the first phase. The Blue Heron Energy Center will connect to Florida's electrical grid with two overhead transmission lines that will extend west from the Site approximately 1400 feet (over I-95) to the existing FPL transmission lines. The Project will obtain natural gas by installing an underground pipe that will extend from the Site approximately 1400 feet to the west (under I-95) to where the Project will interconnect with the natural gas pipeline systems operated by Gulfstream and Florida Gas Transmission Company. Calpine has obtained options to purchase the land west of the Site where Calpine's gas pipeline corridor and electrical transmission line corridor will be located. The primary source of cooling and process water for the Blue Heron Energy Center will be surface water (storm water), which will be obtained from the Lateral C Canal or the County's proposed stormwater park. Potable water and domestic wastewater services will be provided by Indian River County. No groundwater will be used by the Project. The Blue Heron Project will not discharge any industrial or domestic wastewater to any surface water or groundwater. Existing Land Use Plans and Zoning Ordinances The Site is designated Agricultural (AG-1) in Indian River County's Comprehensive Plan. Under the Comprehensive Plan, the AG-1 designation allows for the construction of electrical power plants, like the Project, as "public facilities." Indian River County has adopted land development regulations and zoning districts that implement the intent of the County’s Comprehensive Plan. Under the zoning code, like the Comprehensive Plan, the Site is located in an Agricultural (A-1) district. The County’s zoning code expressly allows the construction of "public and private utilities, heavy" as a special exception use in A-1 zoning districts. The County's zoning code defines "utilities, public or private, heavy" to include "all major electrical generation plants (generating fifty (50) megawatts or more)." Thus, the A-1 zoning designation for the Site allows the development of the Project as a special exception use. Special Exception Use Section 971.05 of the County Code sets forth the procedures and criteria for obtaining the County's approval of a special exception use. Among other things, Section 971.05(9) of the County Code requires an applicant for a special exception use to demonstrate that the proposed project is consistent with the County's Comprehensive Plan and zoning code. Calpine has worked with the County to ensure that every aspect of the Blue Heron Energy Center will comply with the County's criteria. Consistent with the requirements of Section 971.05 of the County Code, Calpine filed an application with the County for approval of a special exception use and conceptual site plan for the Blue Heron Project. The Special Use Exception Application ("SUEA") fully described the Project, including the corridors for the proposed transmission lines and natural gas pipeline. The County’s staff reviewed Calpine’s SUEA and recommended approval, subject to certain conditions. On August 9, 2001, the County's Planning and Zoning Commission held a duly noticed public hearing and then recommended approval of Calpine’s SUEA, with conditions. On September 18, 2001, the Indian River County Board of County Commissioners ("County Commission") held a duly noticed public hearing and then approved Calpine’s SUEA, with conditions. It is "typical" for the County to include conditions as part of the County's approval for a special exception use. If Calpine complies with the County's conditions for its special exception use, the County will "automatically approve the final site plan" for the Blue Heron Project. No one appealed the County Commission's approval of Calpine’s SUEA and the deadline for filing an appeal has passed. Consistency With Land Use Plans and Zoning Ordinances The County staff, the Planning and Zoning Commission, and the County Commission considered whether the Project is consistent and in compliance with the County's Comprehensive Plan and zoning ordinances, pursuant to Section 971.05 of the County Code, and then they approved the Project, with conditions. The evidence presented in the Land Use Hearing demonstrated that the Site is consistent and in compliance with Indian River County’s Comprehensive Plan. The evidence also demonstrated that the Site is consistent and in compliance with Indian River County’s zoning ordinances. In the Prehearing Stipulation, Indian River County, St. Lucie County, the Florida Department of Community Affairs, the Treasure Coast Regional Planning Council, the Florida Department of Environmental Protection, the Florida Department of Transportation, the Florida Public Service Commission, the Florida Fish and Wildlife Conservation Commission and the St. Johns River Water Management District either agreed with or did not dispute Calpine’s assertion that the Site is consistent and in compliance with existing land use plans and zoning ordinances. Indian River County also stipulated that it supports Calpine’s plan to construct and operate the Blue Heron Project on the Site. Public Notice of the Land Use Hearing On December 11, 2000, Calpine published a “Notice of Filing of Application for Electrical Power Plant Site Certification” in the Vero Beach Press-Journal, which is a newspaper of general circulation published in Indian River County, Florida. On October 9, 2001, the Administrative Law Judge issued an “Order Granting Continuance and Re-Scheduling Land Use Hearing” and served a copy of his Order on all of the parties to this proceeding. The Judge’s Order stated that the Land Use Hearing would be conducted on February 6, 2002. On December 14, 2001, Calpine published a “Notice of Land Use and Zoning Hearing on Proposed Power Plant Facility” in the Vero Beach Press-Journal. On December 14, 2001, the Department published notice of the Land Use Hearing in the Florida Administrative Weekly. The public notices for the Land Use Hearing satisfy the informational and other requirements set forth in Section 403.5115, and Rules 62-17.280 and 62-17.281(4), Florida Administrative Code.
Conclusions For Petitioner Calpine Construction Finance Company, L.P.: David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 For the Florida Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 For Audubon of Florida and the Pelican Island Audubon Society: Kevin S. Doty, Esquire Hatch & Doty, P.A. 1701 A1A, Suite 220 Vero Beach, Florida 32963
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Land Use Final Order in this case finding that the Site of the Blue Heron Energy Center is consistent and in compliance with the existing land use plans and zoning ordinances. DONE AND ORDERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON 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 5th day of March, 2002. COPIES FURNISHED: James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Ross Stafford Burnaman, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Paul Bangel, Esquire County Attorney's Office 1840 25th Street Vero Beach, Florida 32960 Kathy Beddell, Esquire Harold Mclean, General Counsel Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 Kevin S. Doty, Esquire Hatch & Doty, P.A. 1701 Highway A1A, Suite 220 Vero Beach, Florida 32963-2206 Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Charles Lee, Sr., Vice President Florida Audubon Society 1331 Palmetto Avenue Suite 110 Winter Park, Florida 32789 Terry E. Lewis, Esquire Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000 West Palm Beach, Florida 33401 Daniel S. McIntyre, Esquire St. Lucie County 2300 Virginia Avenue 3rd Floor Administrative Annex Fort Pierce, Florida 34952 Cari L. Roth, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Roger G. Saberson, Esquire 70 Southeast Fourth Avenue Delray Beach, Florida 33483 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jennifer B. Springfield, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Sheauching Yu, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The parties stipulated that the Petitioner's financial responsibility and morals were not an issue. The only basis for the Board's denial was the Petitioner's alleged lack of experience. Petitioner and Respondent submitted proposed findings of fact which were read and considered. These proposals are discussed in detail in the Conclusions of Law.
Findings Of Fact Petitioner is presently employed as an electrical inspector for Hillsborough County, Florida. He has held this position for approximately two and one-half (2 1/2) years. He holds a master's electrician's license issued by Hillsborough County but is prohibited by terms of his employment as an electrical inspector from engaging in any electrical contracting activity. Petitioner is technically experienced as an electrician. Prior to his employment as an electrical inspector, Petitioner was employed by Mobil Chemical Company which operates several phosphate mines in central Florida. The Petitioner was employed at its Fort Meade mine. The Fort Meade mine, or plant, is a substantial operation producing approximately four (4) million tons of phosphate per year at the time when Petitioner was employed. The mining area occupies several hundred acres and the working or processing area occupies approximately ten (10) of those acres. The working area comprises of a flotation plant, a washer plant, a sizing section, a shipping area where the rock is loaded on railroad cars, a maintenance area, and an office complex. The plant ran three (3) shifts around the clock and employed approximately one hundred (100) persons. All of the major equipment to include the 30 and 40 yard draglines at the Fort Meade plant alone contained in excess of one hundred (100) electric motors each with its own fuse box and disconnect. The Petitioner was employed by Nobil Chemical Company for twenty (20) years (1962-1982); 16 years as an electrician and four years as supervisor of the electrical maintenance at the Fort Meade plant. He was responsible for all electrical repairs, maintenance, and new construction at the plant for all three shifts. His direct superior was the department chief who was in charge of all the electrical departments at all of Mobil's phosphate mining locations. Approximately twenty (20 percent) percent of the Petitioner's time was spent on new construction projects. Approximately forty (40 percent) percent of petitioner's time was spent on regular maintenance and repairs. Fifteen (15 percent) percent of the Petitioner's time was spent on emergency repairs. The remainder of petitioner's time was spent on miscellaneous projects. Petitioner supervised a staff of ten (10) men: two (2) crewmen, four linemen, and four (4) electricians. The Petitioner was responsible for estimating the cost of jobs for his immediate superior to include the cost of materials and the number of man hours. The Petitioner was responsible for counting and reporting the number of hours his employees worked in turning this information into the company's payroll section. Petitioner had the power to request overtime work for his employees and made recommendations concerning hiring and firing personnel. On new construction the Petitioner's responsibilities began with doing takeoffs from blueprints provided for the job and supervising the work through to its completion. He was responsible for the maintenance and repair of the Fort Meade facility to include small electrical motors, large electrical motors, office lighting, transformers, and the large draglines. Petitioner's experience included experience with three (3) phase electrical power, high voltage electrical service, and lower voltages used in small motors, lights and appliances. The electrical department which the Petitioner headed provided service only to Mobil's Fort Meade plant. Mobil is not an electrical contractor; however, its electrical department provided extensive services which are comparable to those an outside electrical contracting service would have provided. Although the petitioner did not prepare a payroll for those persons who he supervised, he did serve as the clerk for his church for five (5) years during which time he was responsible for preparing the payroll for the church's employees. The petitioner applied in 1982 to sit for the electrical contractor's licensing examination. His application was approved by the Respondent and the Petitioner sat for the examination on two occasions, failing both examinations. Petitioner reapplied to sit for the electrical contractor's licensing examination in 1984 and was denied by the Respondent based upon lack of satisfactory experience. The Petitioner held a responsible management position with Mobil at the Fort Meade plant as supervisor of electrical maintenance at the Fort Meade facility for four (4) years. The Petitioner never negotiated a construction contract, was never bonded as a contractor, never obtained insurance to cover his operation as a contractor, and never sought a building permit for any of the electrical work done at the Fort Meade facility.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Electrical Contractors Licensing Board disapprove the application of Cecil U. Lane to sit for the statewide electrical contractor's license. DONE and ORDERED this 18th day of January, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1985. COPIES FURNISHED: Mr. Jerry W. Hendry Executive Director Department of Professional Regulation Division of Electrical Contractors 130 North Monroe Street Tallahassee, Florida 32301 Eric S. Ruff, Esquire Post Office Box TT Plant City, Florida 33566 Arthur C. Wallberg, Esquire Department of Legal Affairs Suite 1601 The Capitol Tallahassee, Florida 32301 Mr. Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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 The issue presented for decision herein is whether or not the Respondent, by failing to advise a prospective purchaser that the residence he was selling contained a solar water heater which was on lease and that therefore the seller could not sell it with the house, engaged in acts and/or conduct amounting to a concealment, misrepresentation, fraud and dishonest dealing in a business transaction violative of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings: Respondent is and has been at all times material hereto a licensed real estate salesperson in the State of Florida and has been issued license number 0395102. Respondent, during times material herein, was employed as a real estate salesperson with Caldwell Banker/Clock Company, 7825 Hollywood Blvd., Hollywood, Florida. On or about July 29, 1983, Respondent solicited and obtained a listing agreement from her brother, Joseph Donnelly, giving exclusive right of sale to the Clock Company Realtors of real estate owned by her brother at 3300 SW 40 Avenue, Hollywood, Florida. On January 28, 1984, the sellers, Joseph and Betty Ann Donnelly, executed a deposit receipt and contract for sale and purchase of the subject residence at 3300 SW 40 Avenue, Hollywood, Florida to Harlen E. Davison, as purchaser. (Petitioner's Exhibit 2) Mr. Davison was a close friend of the Donnellys and was aware that the solar heater was leased and could not be sold. (Testimony of Anthony Nicola, Petitioner's investigator; Joseph and Betty Ann Donnelly) Specifically, Mr. Davison was aware that the solar heater was under a three-year term lease which was paid and that there was one year remaining on the lease term. (Testimony of J. Donnelly, Tr. page 25, lines 8 through 12) This was related to purchaser Davison prior to the time that he closed the transaction to purchase the subject residence. Finally, an examination of the profile sheet and market analysis for the subject property reveals that the solar heater was not listed as one of the features for the subject property. (Respondent's Exhibit 1N11)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the administrative complaint filed herein be dismissed. RECOMMENDED this 20th day of June, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 20th day of June, 1985. COPIES FURNISHED: Sue Hartmann, Esquire Division of Real Estate 400 W. Robinson St. Orlando, Fla. 32802 John Bernazzoli, Esquire 4747 Hollywood Blvd. Hollywood, Fla. 33024 Harold Huff Executive Director Division of Real Estate 400 W. Robinson Street Orlando, Fla. 32802 Salvatore Carpino General Counsel Department of Professional Regulation 130 N. Monroe St. Tallahassee, Fla. 32301
Findings Of Fact A.P. Jerguson III is the sole shareholder of Jerguson Electric, Inc., applicant herein, and is the qualifying agent for the applicant. He has been a master electrician in Dade County since 1972 and formed his own electrical company in October, 1972. Prior to obtaining his master's license he was employed by L & M Electric Company and Lund Electric Company. While working for the latter contractor he was electrical foreman on the construction of a Holiday Inn at 79th Street Causeway in Miami. Since forming his own business Jerguson has performed all types of electrical work from equipment installation to electrical wiring. After forming Jerguson Electric he made little or no money the first two years. During the past two years the company made approximately $4,000 net profit each year after paying to the sole shareholder some $18,000 annual salary. In 1975 the applicant did approximately $66,000 in gross sales. The credit information submitted on both Jerguson and the applicant contains no adverse comments and shows both Jerguson and Jerguson Electric to pay bills promptly, have no judgments against them and to be currently solvent. Representative jobs performed by applicant are contained in Exhibit 1. These show routine wiring jobs, commercial and residential electrical work, and freezer and air-conditioning installations. These jobs varied between $500 and $8,000 in price and totaled some $60,000 over a three year period. However, as seen from the financial statement for 1975, where the total work performed amounted to some $66,000 these were representative jobs over the three year period and not all jobs performed during this three year period as the form on which they were submitted seems to indicate. At the hearing Respondent stipulated that the qualifying agents' qualifications were not in question and that the agent was denied the right to take the examination because the applicant did not show enough major jobs to demonstrate its qualification and business experience in handling large jobs. The Executive Director of the Board further testified that upon this basis the Board would deny certification of any new business organization, regardless of the expertise of its qualifying agent or agents and the financial status of the organization, simply because the new business could not show a sufficient number of jobs completed. Apparently if the qualifying agent had previously been certified by the board a new business could be certified pursuant to the provisions of Rule 21GG-2.01(2) F.A.C.
Findings Of Fact The Respondent, Florida Department of Health and Rehabilitative Services, is an agency of the State of Florida charged with the responsibility, inter alia, for setting and enforcing health and safety standards for hospitals located within the state. In furtherance of this function, the Department has adopted rules set out Chapter 10D-28, Florida Administrative Code. Among these rules are provisions which set standards for hospital construction which are designed to assure the fire and electrical safety of patients, staff and visitors to hospitals. The Department enforces its rules by licensing or certifying hospitals which comply with them, and by refusing licensure or certification to those which do not. The Department's Rule 10D-28.79, Florida Administrative Code, relates to codes and standards for the physical plant of new and existing hospitals. The rule does not set out code provisions, but rather adopts various construction and life safety codes by reference. Rule 10D-28.79(5) provides in pertinent part: The following codes and regulations are herein adopted by the licensing agency [the Department], and it shall be the responsibility of the sponsor [licensed hospitals] to consult such codes for compliance with all matters not specifically set forth in this chapter. Standard Building Code, 1976 edition, Group I, Institutional Occupancy. National Fire Protection Association No. 101, Life Safety Code 1973 Edition; Appendix B of this Code adopts several other NFPA standards, which shall be met . . . This rule became effective on January 1, 1977. Copies of the codes that were adopted by reference did not accompany the rules as the were filed with the Office of the Secretary of State. The Life Safety Code is a publication of the National Fire Protection Association (NFPA). Appendix B to the Code, which is referenced in the Department's Rule 10D-28.79(5)(b) is titled "Referenced Publications" and provides in part as 7 follows: The following publications are referenced by this Life Safety Code and thereby comprise a part of the requirements or recommendations to the extent called for by the Code or Appendix A, respectively. The Appendix goes on to list more than fifty publications, including the 1971 National Electric Code, which is another publication of the National Fire Protection Association. The crux of this proceeding is a single paragraph of this publication. Paragraph 517-51(a) sets an electrical performance standard to be met in hospital areas where "electrically susceptible patients" are housed. The paragraph provides: In electrically susceptible patient areas the maximum 60-hertz alternating-current potential difference between any two conducting surfaces within thee reach of a patient, or those persons touching the patient, shall not exceed five millivolts measured across 500 ohms under normal operating conditions or in case of any probable failure. The Department has interpreted its Rule 10D-28.79(5)(b) as adopting as performance standards the provisions of all of the codes set out in Appendix B of the 1973 Life Safety Code, including the 1971 National Electric Code, and paragraph 517-51 thereof. There are conflicting provisions in the various Life Safety and Electrical Codes that the Department has adopted, and contends that it has adopted through its adoption of Appendix B of the 1973 Life Safety Code. The Department resolves these conflicts by requiring hospitals to develop solutions which will meet the provisions of all of the codes. The provisions of paragraph 517-51(a) of the 1971 National Electric Code are considerably more strict than similar provisions set out in later editions of the National Electric Code, including the 1975, 1978 and 1981 Codes. The Department contends that hospitals must comport with the most strict of these requirements, i.e. the ones set out in paragraph 517-51(a) of the 1971 Code. The Petitioner Memorial Hospital of Jacksonville is an accredited, licensed hospital in the State of Florida. Memorial Hospital is presently in the process of constructing a three million dollar renovation, including a renovation to its critical care unit. In order to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code, Memorial Hospital would need to expend approximately $55,000 that would not need to be expended in order to comply with provisions of other codes. Memorial Hospital has requested a variance from the Department from the requirement of complying with this provision. The Petitioner St. Vincent's Medical Center is an accredited, licensed hospital located in Jacksonville, Florida. St. Vincent's Medical Center is currently involved in a project to renovate and add space to its existing facilities, including a thirty-two bed critical care unit. In order to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code, St. Vincent's would be forced to expend from $75,000 to $80,000 which would not be necessary in order to comply with the provisions of other codes. St. Vincent's Medical Center has requested a variance from the requirements of that provision from the Department. Halifax Hospital Medical Center is an accredited, licensed hospital located in Daytona Beach, Florida. Halifax Hospital has been advised that it would be required to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code in renovating and expanding its critical care unit. While the precise cost of complying with the provision cannot be determined, it is evident that Halifax Hospital would be required to expend more money to comply with the provision than would be required to comply with other provisions. The Petitioner Shands Teaching Hospital and Clinics, Inc., is an accredited, licensed hospital located in Gainesville, Florida. Shands Hospital is presently in the process of expanding and renovating its facility, including its critical care unit. Shands Hospital has been advised by the Department that it would need to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code in connection with the critical care unit. The cost of complying with this provision would be approximately $140,000 over the cost of complying with other provisions. No evidence was presented with respect to the Petitioner Variety Children's Hospital. The Department's interpretation of its Rule 10D-28.79 as having adopted by reference the performance standard set out at paragraph 517-51(a) of the 1971 National Electric Code is in error. While the Department's rule references Appendix B to the 1973 Life Safety Code, it provides only that that Appendix adopts several other standards which must be met. While the Appendix references the 1971 National Electric Code, it adopts only the provisions of the 1971 National Electric Code and the other referenced publications to the extent that they are otherwise adopted in the 1973 Code or Appendix A thereto. Paragraph 517-51(a) of the 1971 Code is not referenced in Appendix A to the 1973 Life Safety Code, nor in any other pertinent place. The Department has, albeit erroneously, interpreted its rules as adopting paragraph 517-51(a) of the 1971 National Electric Code. This interpretation is being uniformly applied by the Department, and therefore itself constitutes a rule. The interpretation has not itself been adopted as a rule other than through the provisions of Rule 10D-28.79. The 1971 National Electric Code was not filed with the Office of the Secretary of State when Rule 10D-28.79 was filed, and is not generally available. It has been replaced by subsequent editions of the National Electric Code and is no longer generally available to members of the public at large. The effect of the Department's interpretation of its rules as adopting the standard set out in paragraph 517-51(a) is to require hospitals to install "isolated power sources" in critical care units. The standard by its terms applies to areas of a hospital where electrically susceptible patients are housed. Such patients are housed in operating rooms, rooms where highly flammable anesthetics are used, and in critical care units. Other standards adopted by the Department expressly require installation of isolated power sources in operating rooms and in rooms where flammable anesthetics are used. The fact that these are "wet" areas and areas where flammable materials are kept justifies those requirements. These conditions do not apply to critical care units. The electrically susceptible patients who are housed in critical care units are patients who have catheters inserted into their bodies, and extensions from the catheters protruding outside their bodies. The most common such patient is a patient with a pacemaker attached to his or her heart. With such patients an electrical device outside the body is connected through a catheter into a vein, and eventually to an area close to or actually at the heart. These patients are electrically susceptible because low levels of electrical current that might flow through the catheter could kill the patient. A power source of less than 100 millivolts if attached to the catheter in such a way that current could flow through the catheter could have the effect of fibrillating a patient's heart and killing him. This is much less power than would do any damage to a person under normal conditions, and considerably less voltage than would commonly result from short circuits or other malfunctions in equipment powered by conventionally grounded power sources. The amount of voltage that would be available given a fault or short circuit condition can be reduced through use of isolated power systems. Such a system includes a transformer which provides a demarcation between the incoming or primary power line, which is conventionally grounded, and the outgoing or secondary line. The secondary line is isolated from ground, neither wire being connected to ground. The secondary line runs into circuit breakers then to receptacles about the room. All of this equipment is installed in an electrical box. A monitor or gauge is installed on the face of the box. The monitor visually displays the extent of degradation of the secondary line, i.e. , whether the secondary line has become grounded. By observing the monitor, it is possible to avoid grounding a patient so that electrical currents cannot pass through the patient. The Department maintains that the 1971 Code standard can be met only through installation of isolated power sources. Under some fault circumstances this is correct, and, no other practical technology exists to meet the standard under any fault circumstances. Imposition of the standard set out at paragraph 517-51(a) of the 1971 National Electric Code is arbitrary and unreasonable. In the first place, no known technology can meet the standard. Even an isolated power system will meet the standard only in the case of line-to-ground faults. In cases where ground is lost, the isolated power system will not stay within the standard. The Department's action in requiring hospitals to install line isolation monitors thus meets the standard only under one fault circumstance, and it is not the one that most commonly occurs. Even as to those faults for which the line isolation monitor will accomplish the meeting of the 1971 standard, there is no valid reason for requiring their installation. The goal of protecting an electrically susceptible patient from electrocution can be easily and reliably accomplished by protecting the catheter from contact with electrical power sources. Basically, in order to create an electrical incident, or a shock, one part of a person's body has to touch some metal, another part has to touch some metal, and some current has to flow. This can be broken down into eight steps that would need to occur for a patient to be shocked: First, a power source or power line has to run close to the patient. Second, the line has to be exposed and touch metal. Third, the metal has to become live. Fourth, the metal must become ungrounded. Fifth, the patient has to touch the metal directly or through some conductive path. Sixth, a second conductive surface (more metal) has to be available. Seventh, the patient has to touch it. Eighth, the current has to be at a level that will cause harm. If any of these things does not happen, there will not be a shock. During the 1960's and early 1970's, the fact that very low levels of electrical current could cause fibrillation of the heart was not understood. This fact has been understood now for some time, and hospitals have looked to avoid placing patients in circumstances where the eight steps can occur. Looking at the problem in this manner allows hospitals to focus on what factors can easily be eliminated. Current practice is not to ground things which do not have to be grounded. It had previously been the practice to ground all of the metal around the patient, creating a "bathtub" effect. The line isolation monitor serves to eliminate the eighth of these steps by, in at least one fault circumstance, allowing only very low levels of current to flow. The other steps can be more easily eliminated. One means of accomplishing that is to isolate the power source to the catheter. Thus, battery powered equipment is now typically used, rather than equipment that attaches directly to the main power source. Furthermore, catheters protruding from a patient's body are now insulated, and critical care unit personnel are instructed not to touch them unless they are wearing rubber gloves. The taking of these steps eliminates the possibility for electrocution of an electrically susceptible patient through low voltage currents (microshock). There have been no documented deaths of patients through such microshock anywhere in the world since 1972. Even in that instance, which occurred in the United Kingdom, the accident did not happen in a critical care unit, but rather in an operating unit. The circumstances of the incident were that a hospital had been callously negligent in allowing its equipment to be modified so that inadequate switches were attached to an operating table and open current lines were exposed. Blood from a patient flowed to the open lines, and electrocution resulted. This incident bears no relevance to the instant rule. In the first place, it occurred in an operating room, where isolated power systems are properly required. In the second place, the hospital staff was incredibly negligent about its procedures and equipment. In addition to the fact that isolated power systems no longer accomplish any valid purpose in preventing microshock, there are disadvantages to their use. These disadvantages include: (1) Line isolation monitors limit the amount of power that is available at bedside in critical care units. There is a need for considerable available power at bedside, and line isolation monitors limit available power, and can contribute to power interruptions. (2) A component is added to the power distribution system so that an additional point of failure exists. (3) The isolation system is installed at the head of beds in a critical care unit, thus interfering with the possibility of putting other equipment in that place. (4) Isolated power systems with their transformers and monitors can produce an annoying hum. (5) Isolated power systems give off heat. (6) Line isolation monitors which go with isolated power systems can cause interference with other devices, such as electroencephalograms and electrocardiograms. (7) Several models of isolated power systems, including those required under the 1971 National Electric Code, require special electrical receptacles, thus limiting the use of various appliances in a critical care unit. (8) Personnel have to be trained as to the nuances of isolated power systems, and as to the meaning of readings on the monitor. (9) Isolated power systems can give personnel a false security and cause carelessness in preventing the factors which could cause and electrical current to flow through a catheter. Except for electrically susceptible patients as described herein, there is no reason to require installation of isolated power sources in critical care units. Petitioners have contended that other regulations of the Department which relate to the setting of fire protection standards in hospitals constitute invalid exercises of delegated legislative authority. No evidence was presented as to how these standards specifically affect any of the Petitioners. No evidence was presented to establish that any of the Petitioners are in any way injured or adversely affected by the rules.
Findings Of Fact The Petitioner is a building operator of a residential housing project which has been established under the provisions of the National Housing Act of 1968 (1 U.S.C. 1715Z-1) and/or the Housing and Community Development Act of 1974 (42 U.S.C. 1437P). The heating costs of tenants in the project are included in their rent. The Petitioner has assured the Department of Health and Rehabilitative Services that payments received under the program would serve to provide additional heat or energy related benefits to the tenants. The statement of profit and loss submitted by the Petitioner in support of its application reveals total income of $372,144.49. Total project expenses are shown to be $476,847.22. These figures reveal an operating loss of $104,702.73. Included as expense items in the profit and loss statement are $70,931.03 for depreciation on buildings, and $49,819.16 as depreciation on fixed building equipment. If these depreciation figures are eliminated as expense items, then the profit an loss statement would reveal that the Petitioner has operated at a profit of $16,047.46.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered denying the Petitioner's application for benefits under the low income energy assistance program. DONE and ORDERED this 25th day of May, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 28th day of May, 1981. COPIES FURNISHED: Charles C. Caplan Mr. Alvin J. Taylor, Secretary Administrator Department of Health and Mount Carmel Gardens, Inc. Rehabilitative Services 5846 Mount Carmel Terrace 1323 Winewood Boulevard Jacksonville, Florida 32216 Tallahassee, Florida 32301 Leo Stellwagen, Esquire Department of Health and Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417-F Jacksonville, Florida 32231
