The Issue The issue presented here concerns the alleged violation of the Antiknock (Octane) Index, Rule Subsection 5F-2.01(1)(i), Florida Administrative Code. In particular, tide Respondent is accused of having gasoline in a pump labeled as "premium leaded" which carried an octane reading of 91.9 at a time when the registration for "premium leaded" on file with the Department of Agriculture and Consumer Services indicated a rating of 95 octane. FINDINGS OF FACT 1/ On April 14, 1981, an employee of the Petitioner went to the Sunshine- Jr. Stores, Inc.'s, Store No. 335, located at Highway 40 and Interstate 75, in Marion County, Florida, for purposes of inspecting gasoline products being dispensed from that facility. One of the pumps at the store was labelled "premium leaded" gasoline and carried an octane rating on the pump as 91.5. (This octane rating was the same as was displayed on February 26, 1981, the date of the last inspection, when a sample test revealed a rating of 94.4.) The April 14, 1981, sample of fuel taken from the pump marked premium leaded," 91.5 octane, was analyzed, and the octane rating was shown to be 91.9. On April 14, 1981, the date of the more recent test, the Antiknock Index (Octane) in the sworn registration by the Respondent on file with the Petitioner, indicated that the "premium leaded" gasoline being dispensed was 95 octane. In view of the fact that the difference between the test reading taken on April 14, 1981, from the "premium leaded' pump, and that reading registered with the Petitioner exceeded the factor (1), to the extent of being a (3.1) factor, a claim was brought against the Respondent by the Petitioner based upon the alleged violation of Rule Subsection 5F-2.01(1)(i), Florida Administrative Code. The action was in the form of a Stop Sale Notice. The fuel was then released to the Respondent upon the basis of a Release Notice or Agreement, by which the Petitioner received a $1,000.00 bond in the form of a cashier's check, in lieu of the confiscation of the gasoline in the "premium leaded" pump. Subsequent to the inspection of April 14, 1981, in which the gasoline was sampled in the pump marked "premium leaded," that dispenser has been relabelled to reflect "oremium unleaded" fuel and the octane rating displayed on the pump continues to be 91.5.
Recommendation The facts presented in this cause show that the customers of the Respondent were not being told that the "premium leaded" fuel that they were being sold carried a 95 octane rating, instead, the rating shown was 91.5, which was less than the 91.9 reading found in testing the fuel extracted. In addition, the Respondent eventually took steps to identify for the public the fact that the fuel in the tank was unleaded and not leaded fuel. The reason for delay is explained in comments by the Respondent's representative offered in mitigation of any penalty to be imposed. He stated that the problem with labe11ing had occurred after an attempt on the Respondent's part to switch from "premium leaded" fuel to premium unleaded" fuel had been delayed, causing a concern that the amount of "premium leaded" remaining in the tank when the transition period occurred not contaminate the "premium unleaded" fuel that was being used to replace the former "premium leaded" and mislead a customer by causing him to believe that he was receiving "premium unleaded," when he was in fact receiving a blend of premium fuel containing lead. Technically, the Respondent dispensed fuel from a pump labelled "premium leaded" which was below standards when contrasted with the sworn registration Antiknock Index (octane); however, in view of the fact that the pump indicated an octane rating lower than the test rating on April 14, 1981, it is, RECOMMENDED: That no assessment be made and that the bond amount of $1,000.00 be returned to the Respondent. DONE and ENTERED this 30th day of July, 1981, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1981.
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 Quality of Service Of more than 250 customers presently served by the utility, only four customers testified at the hearing. Two were concerned that water and sewer rates were already too high and no further increase in rates should be allowed, a third complained of the utility's water having a bad taste and odor, while the fourth objected to an odor emanating from the utility's sewerage treatment plant approximately one year ago. Additionally, a number of deficiencies in the quality of service were identified by the Commission in Order No. 9216, supra. However, all deficiencies have now been resolved to the Commission staff engineer's satisfaction. Based on the entire record, the evidence supports a finding that the utility's water and sewer service is satisfactory. Rate Base Petitioner has proposed a rate base of $10,897 and $36,832 respectively for its water and sewer operations for the twelve months ending June 30, 1979, which is the test period in this proceeding. The Commission staff proposed five further adjustments to water and sewer rate base, none of which were contradicted by the utility. These adjustments affect plant in service, accumulated depreciation, contributions in aid of construction (CIAC), accumulated depreciation on CIAC and the working capital allowance. The adjustments are supported by the record, and should be accepted. The following schedule portrays the adjusted rate base for the utility's water and sewer operations, and the basis for each of the adjustments made in arriving at those amounts. Ponderosa Parks, Inc. Average Rate Base Year Ending June 30, 1979 WATER ADJUST TEST UTILITY ADJUST. YEAR Utility Plant $52,293 9,142 (1) $61,435 Accum. Deprec. (9,335) (1,055) (2) 10,390 CIAC (33,926) (5,938) (3) (39,864) Accum. Deprec.- CIAC -0- 6,742 (4) 6,742 Working Capital 1,865 60 (5) 1,925 Rate Base $10,897 $19,848 SEWER ADJUST TEST UTILITY ADJUST. YEAR Utility Plant $92,962 ($15,631)(6) $77,331 Accum. Deprec. 18,270 5,718 (7) (12,552) CIAC (39,188) 254 (8) (38,934) Accum. Deprec.- CIAC -0- 6,320 (9) 6,320 Working Capital 1,328 (215)(10) 1,113 Rate Base $36,832 $33,270 Adjusts water plant in service by (a) reallocating a portion of sewer plant to water operations, (b) readjusting the cost of certain water meters, and (c) adjusting the plant accounts from a year-end basis to a 13-month average balance. Adjusts accumulated depreciation to (a) reflect the use of a composite depreciation rate of 2.5 percent of all water plant and lines except meters for which a 2.63 percent rate is used, and (b) restate the balance in the account using a 13-month average balance in lieu of year-end balance. Adjusts contributions in aid of construction by (a) restating an amount previously improperly booked as revenues during the years 1970-1974, and (b) restating the year-end balance to a 13-month average. Adjusts the balance in the accumulated depreciation on CIAC account to reflect the use of a 13-month average rather than a year-end balance. Recomputes the working capital allowance to reflect one-eighth of adjusted operating and maintenance expenses. Adjusts sewer plant in service by (a) reallocating certain water lines from sewer to water operations, (b) removing certain non-utility land from the land account, (c) deleting that portion (50 percent) of the sewage treatment costs not used and useful in providing sewer services, and (d) adjusting the plant accounts from a year-end balance to a 13-month average balance. Adjusts accumulated depreciation by (a) using a 2.5 percent composite depreciation rate on all sewer plant and lines except for a 2.63 percent rate on meters, and (b) reflecting the use of a 13-month average in said account. Adjusts contributions in aid of construction by (a) adding to that account contributions previously recorded as revenues in 1970-1974, and (b) using a 13-month average in lieu of a year-end balance. Restates accumulated depreciation on CIAC by using a 13-month average in lieu of a year-end balance. Recomputes the working capital allowance to reflect one-eighth of operating and maintenance expenses. Net Operating Income Petitioner's Exhibit No. 1 shows adjusted test year gross operating revenues of $20,370 for water operations and $14,692 for sewer operations. The utility's net operating income for the same time period on water and sewer services was $1,282 and $48 respectively. Staff Exhibit Nos. 2 and 4 make adjustments to operating revenues, operating and maintenance expenses, depreciation expense, and taxes other than income, none of which were contested by the utility. The record supports a finding that these adjustments are appropriate, and should be accepted. The following schedule shows the net operating income of the utility for the year ending June 30, 1979 and the derivation of those amounts. Ponderosa Parks, Inc. Average Rate Base Year Ending June 30, 1979 WATER ADJUST TEST UTILITY ADJUST. YEAR Operating Revenues $20,370 2,083(1) $18,287 Operating Expenses: Operation 16,137 (736)(2) 15,401 Depreciation 1,663 (1,119)(3) 544 Taxes other than 1,228 (52)(4) 1,236 Income Net Operating Income $ 1,282 $ 1,106 SEWER ADJUST TEST UTILITY ADJUST. YEAR Operating Revenues $14,692 4,293 (5) $10,399 Operating Expenses: Operation 10,121 (1,216)(6) 8,905 Depreciation 2,741 (1,781)(7) 960 Taxes other than 1,783 (107)(8) 1,675 Income Net Operating Income $ 48 $ 1,141 Adjusts test year water revenues by (a) removing that amount requested by the utility to show actual results of operations, and (b) reflecting a new surcharge rate (66/1000 gal.) charged by Pasco Water Authority. Adjusts operating and maintenance expenses by (a) removing costs associated with excessive unaccounted for water, (b) disallowing purchased water costs related to a prior accounting period, and (c) annualizing the new cost of water ($1.03/1000 gal.) purchased from Pasco Water Authority. Adjusts depreciation expense by (a) reflecting a composite depreciation rate of 2.5 percent for plant and lines and 2.63 percent for meters, and (b) removing depreciation expense on CIAC from operating expenses in accordance with Section 367.081(2) Florida Statutes (1980). Adjusts taxes other than income taxes by removing gross receipts taxes associated with the requested revenues previously removed in item (1)(a) above. However, an appropriate amount of taxes ($52) should be added back after the new revenue requirements are determined. Adjusts test year sewer revenues by removing the revenues requested by the utility to show actual results of operations. Adjusts operating and maintenance expenses by amortizing the cost of nonrecurring repair work over a 3-year period instead of charging the total cost to test year operations. Adjusts depreciation expense by (a) recomputing the balances using a 2.5 percent composite depreciation rate for all sewer plant and lines except for a 2.63 percent rate on meters, and (b) removing depreciation expense on CIAC in accordance with Section 367.081(2), Florida Statutes (1980). Restates taxes other than income by removing gross receipts taxes associated with the requested revenues previously removed in item (5). However, an appropriate amount of taxes ($107) should be added back after the new revenue requirements are determined. Cost of Capital Ponderosa has not requested a specific rate of return on utility investment. However, the requested revenues on water operations equate to a rate of return of 11.76 percent on water rate base while the requested amount of sewer revenues produces a rate of return on sewer operations of 9.15 percent. The utility and Commission staff agree such returns are reasonable given the circumstances of this proceeding. These rates of the returns are supported by the record, and should be used. Revenue Requirements The application of a 11.76 percent rate of return to the adjusted rate base for water operations reflects the utility is entitled to increase its water revenues by $1,260 in order to achieve that return. Similarly, it is necessary to increase sewer revenues by the amount requested, or $4,293, to produce the requested return of 9.15 percent. The utility should be permitted to revise its tariffs to generate these amounts of additional revenues. Rate Structure The utility's present rate structure imposes a minimum charge for the first 3,000 gallons of water used, and a gallonage charge for each 1000 gallons thereafter. Sewer charges for residential customers are presently assessed on a flat rate basis irrespective of the usage of the individual customer. This type of rate structure has two inherent deficiencies. First, it offers no means by which a customer may control the amount of his bill by consuming more or less amounts of water. Second, it fails to allocate in a fair and impartial manner the minimum costs associated with providing water and sewer service. A base facilities charge will remedy these deficiencies. Under this structure, a minimum charge will be imposed for the purpose of recovering the fixed or base costs of providing water and sewer service, such as depreciation, taxes and a portion of billing and customer accounting expenses. Thereafter, a charge for each thousand gallons used will be made. The latter charge will cover costs relating to purchased water, transmission and treatment expenses, and a portion of billing, collecting and customer accounting expenses. This type of rate structure is supported by the evidence, and should be used.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Ponderosa Parks, Inc., 301 Embassy Boulevard, Port Richey, Florida 33568, be granted and that the utility be authorized to file new tariffs to be approved by the Florida Public Service Commission that will generate additional annual gross water revenues of $1,260 and additional annual gross sewer revenues of $4,293. It is further RECOMMENDED that the utility be required to implement a base facility charge in structuring its water and sewer rates. THIS RECOMMENDED ORDER entered on this 21st day of July, 1980, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact The Petitioner, Jory Bricker, began using the electric utility services of the Respondent, Florida Power Corporation (FPC), at her home at 2952 Webley Drive, Largo, Florida, in approximately March, 1988. In approximately June, 1989, she had a hot tub installed. Some wiring was required to be done when the hot tub was installed, and the hot tub wiring was not done properly. It could not be determined from the evidence who did the wiring. From the time of its installation, the hot tub has been used daily. Initially, it was not on a timer, and it did not have a thermal cover. It immediately began using a great deal of additional electricity, and the Petitioner's electric bills went up accordingly. In approximately August, 1989, the Petitioner's appliances began to burn out. It was determined that a frayed FPC service drop line was the cause of the damage to the appliances. FPC repaired the drop line and reached a settlement with the Petitioner for the damages to the appliances. The Petitioner also made and was paid an insurance claim for the damages to the appliances. The Petitioner bought used appliances to replace those that had burned out. When they were installed, they were not grounded properly, causing the Petitioner and her housemate, John Wall, to receive electric shocks when they used the appliances. The Petitioner hired an electrician, who advised her of the cause of the shocks and properly grounded the appliances within the home. It is found that, once the appliances were properly grounded, the Petitioner and her housemate ceased to receive electric shocks when they used the appliances, contrary to their testimony at the hearing. In November, 1989, the Petitioner complained to the Florida Public Service Commission (PSC) regarding the amount of her electric bills. In response to the complaint, FPC conducted an inspection and recommended several energy conservation measures. The PSC notified the Petitioner that it considered the complaint to have been resolved. In September, 1990, the Petitioner made another high bill complaint to the PSC. When FPC investigated, it found that none of the energy conservation measures recommended ten months ago were being followed. Energy conservation measures were recommended again, and FPC extended the time for payment of the outstanding bills. The PSC notified the Petitioner that it also considered this complaint to have been resolved. In December, 1990, the Petitioner made another high bill complaint to the PSC. FPC verified that all FPC facilities were correct and met specifications. FPC again made energy conservation recommendations. FPC also placed a meter on the hot tub and refrigerator to ascertain how much electricity they were using. It was determined that the hot tub was using 26 kilowatt hours a day and that the refrigerator was using 5 kilowatt hours a day. The hot tub in particular was using more electricity than it should have. The two appliances contributed substantially to the Petitioner's high use of electricity. FPC recommended that the Petitioner hire an electrician to inspect for electrical problems. The Petitioner made no further complaints until April, 1992, although the electricity bills remained high (in some months exceeding the levels about which the Petitioner previously complained.) In April, 1992, the Petitioner asked FPC to conduct another energy audit. FPC complied with the request and again made energy conservation recommendations. In September, 1992, the Petitioner filed another high bill complaint with the PSC. FPC responded to the complaint and ultimately conducted an on- site test of the Petitioner's meter, which proved to be accurate. In November, 1992, the Petitioner mentioned to FPC for the first time that she was receiving electric shocks when she used her appliances. Once again, FPC advised her to hire an electrician. It is not clear whether the Petitioner was referring to past occurrences, whether she was intentionally trying to mislead FPC into thinking she was still receiving electric shocks, or whether the electric shocks were starting again. In March, 1993, the Petitioner hired an electrician, who inspected the residence for electrical problems and replaced a ground clamp on the Petitioner's side of the meter. There was no evidence that can support a finding as to when the ground clamp came loose. A loose ground clamp could increase electric bills, but only slightly. The Petitioner's bills for March through June, 1993, show a reduction, but not substantially compared with the bills for those months in prior years, and not enough to demonstrate substantial reduction from the repair of the ground clamp. As of March 12, 1993, there were still several electrical problems in the residence that could result in voltage drops, including: "flying splices," double lugging on circuit breakers, loose wiring, reversed polarity in some outlets and improper wiring of the hot tub. FPC's approved tariffs and procedures include its Requirements for Electric Service and Meter Installations, 1991 Edition (the FPC Requirements.) Section I of the FPC Requirements provides in pertinent part: Except for the installation and maintenance of its own property, Florida Power Corporation does not install or repair wiring on the customer's premises and, therefore, is not responsible for the voltage beyond the point of delivery and does not assume any responsibility for, or liability arising because of the condition of wires or apparatus on the premises of any customer beyond this point. Section III A. of the FPC Requirements, setting out the general requirements for the provision of services, provides in pertinent part: GROUNDING All services shall have a grounded neutral. Grounds shall be established as required by the "National Electrical Code" and local authority. All grounds should have (Emphasis added.) a maximum resistance of 25 ohms when measured at the point of delivery and at the meter location. Section IV A.of the FPC Requirements, setting out the general requirements for meter installations, provides in pertinent part: 8. The Company will perform routine maintenance on meter sockets and related facilities which the Company supplied to the Customer. If, however, it can reasonably be determined that the Customer has caused or is responsible for damage to the facilities, then the Customer will be solely responsible for all repairs. (Emphasis added.) Taken together, the FPC Requirements are clear that FPC's responsibity for facilities stops at the meter. FPC is not responsible for proper wiring, grounds and other related matters on the customer's side of the meter and inside the home. FPC repaired the frayed service drop wire in August, 1989, and the matter was resolved. There was no evidence from which a finding could be made that any subsequent problems were caused by or, except for the Petitioner's incorrect installation of some of the replacement appliances, even related to the frayed service drop line. There was no evidence from which a finding could be made that FPC did not meet its responsibilities under its Requirements for Electric Service and Meter Installations. Any subsequent electrical problems arose from faulty wiring or other problems on the customer's side of the meter. The Petitioner owes FPC $1,157.24 for past due electric bills. On or about May 12, 1993, the PSC sent the Petitioner a letter advising her that an interim determination had been made under F.A.C. Rule 25-22.032(10) that $619.12 of the outstanding bills was undisputed and should be paid by May 27, 1993, to avoid discontinuation of electric service. The Petitioner did not make any payment, and electric service was terminated. After FPC discontinued service, the Petitioner's housemate reconnected the electricity without FPC's authority or permission. When FPC learned that an unauthorized connection of electric service had been made and that power had been restored to the Petitioner's home without FPC's authority or permission, FPC again terminated electric service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Public Service Commission enter a final order dismissing the complaint of the Petitioner, Jory Bricker, against the Respondent, Florida Power Corporation, and upholding the validity of FPC's outstanding bill in the amount of $1,157.24 for unpaid electric services. RECOMMENDED this 13th day of January, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 13th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5713 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Rejected as not proven that the settlement with FPC was only for a portion of the damages. It also does not account for the insurance claim that the Petitioner made and was paid. Otherwise, accepted and incorporated. First sentence, rejected as not proven. The rest, accepted and implicitly incorporated. Rejected in part as not proven and as contrary to facts found (in that some wiring was necessary to install the hot tub.) Otherwise, accepted and incorporated. First sentence, accepted and incorporated. Second sentence, rejected as as not proven and as contrary to facts found. Third sentence, accepted and incorporated, but there was no evidence from which it can be determined when the ground clamp came loose. "Full use of the hot tub" rejected as not proven. Otherwise, accepted but not necessary. Comparison of the April and May, 1993, bills with the bills for those months in prior years does not indicated a substantial reduction in the bills for those months in 1993. Rejected as not proven, and as contrary to facts found: (1) that the shocks were continuous through March, 1993; (2) that the Petitioner "perpetually complained" to FPC and the PSC about electric shocks; or (3) that the Petitioner was relying on FPC to discover and correct electrical problems on the Petitioner's side of the meter (instead, FPC repeatedly advised the Petitioner to hire an electrician for that purpose.) Otherwise, accepted to the extent not subordinate or unnecessary. Rejected as not proven and as contrary to the facts found that the Petitioner implemented all of the FPC's energy saving recommendations. To the contrary, the evidence indicated that most were not followed consistently or for long. First two sentences, accepted and incorporated. The rest, rejected as not proven and as contrary to the facts found. First sentence, not proven. (It would seem to depend on where the open neutral was located.) Second sentence, rejected as not proven and contrary to facts found (assuming it refers to the frayed service drop line.) Rejected as not proven and contrary to facts found. Accepted and incorporated. Accepted but unnecessary. Rejected as not proven and contrary to facts found. "Valid convictions" rejected as not proven and contrary to facts found. Otherwise, accepted and incorporated. Rejected as not proven and as contrary to facts found. (It is not clear from the evidence that the Petitioner was receiving electric shocks up to March, 1993, and the evidence was that any increase in electricity usage from a loose ground clamp would not be significant.) Respondent's Proposed Findings of Fact. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence, and to facts found, that Wall wired the hot tub. Otherwise, accepted and incorporated. 3.-33. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Ted E. Karatinos, Esquire James D. Jackman, P.A. 4608 26th Street West Bradenton, Florida 34207 Jory Bricker 2952 Webley Drive Largo, Florida 34641 Rodney E. Gaddy, Esquire Corporate Counsel Florida Power Corporation P. O. Box 14042 St. Petersburg, Florida 33733-4042 Martha Carter Brown, Esquire Staff Counsel Public Service Commission 101 East Gaines Street Suite 216 Tallahassee, Florida 32399-0863 Steve Tribble Director of Records and Recording Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 William D. Talbott Executive Director Public Service Commission Room 116 101 East Gaines Street Tallahassee, Florida 32399-0850 Rob Vandiver, Esquire General Counsel Public Service Commission Room 212 101 East Gaines Street Tallahassee, Florida 32399-0850
The Issue The issue in this case is whether Respondent failed to pay tax surcharges, penalties, and interest owed on the sale of cigarettes, and, if so, the amount that is currently due and owing.
Findings Of Fact The Department is the state agency responsible for monitoring the sale of tobacco products and for assuring that all businesses selling such products pay the requisite surcharges on each pack of cigarettes sold. Respondent is a convenience store which is licensed to sell tobacco products. The store also sells alcoholic beverages, food items, and miscellaneous other products. The sales tax associated with the sale of tobacco products (only) is at issue in this proceeding. The 2009 Florida Legislature enacted legislation imposing a $1.00 per pack surcharge on each pack of cigarettes sold in this state beginning July 1, 2009. Retailers having a cigarette inventory and, as of that date, would be required to pay a "floor tax" of $1.00 per pack in their inventory. In February 2010, the Department received a letter from an anonymous source (who identified himself as "A Good Civilian (Business Owner) (Who always pays tax)[sic]." The letter had a flyer attached to it which had been distributed by Respondent. The flyer identified a number of products for which buyers could realize "[t]he lowest prices in Polk County." Included in the list of products were various tobacco items, including cigarettes. The anonymous source's letter suggested that anyone who could sell the tobacco products at those prices must be doing something illegal. Based on the allegations in the anonymous letter, the Department decided to investigate. A team was sent to one of Respondent's stores (hereinafter referred to as "Store 1") on February 18, 2010. The team did an inventory of tobacco products at Store 1. There were 2,855 packs of cigarettes at Store 1. Some of the cigarettes were in individual packs; some were still in cartons (which contain ten packs each). The cigarette packs had the requisite state stamp on them. However, most of the packs had a stamp which had been in existence prior to the change in law on July 1, 2009. The fact that most of Store 1's cigarette packs had the old stamp meant that the cigarettes had been around for a while. The inventory eventually formed the basis for an audit performed on Respondent's other store ("Store 2"). Store 2 had just recently opened and was stocked with cigarettes brought over from Store 1. There were, therefore, no invoices available at Store 2 as to the purchase of the cigarettes it had on hand. The audit process involved a determination of distributors from which Respondent purchased its cigarettes. The two primary distributors were Sam's Club and Dosal. The Department ascertained from those distributors how many packs of cigarettes Respondent had purchased over a given span of time. Sam's Club provided records seeming to indicate the purchase of 37,770 packs between February 1 and June 29, 2009; another 9,090 packs were purchased between July 4, 2009, and January 29, 2010. Dosal said 65,490 packs had been purchased between March 3 and June 23, 2009; another 17,800 were purchased between July and December 2009. An audit investigation was commenced at Store 2 on March 17, 2010. The auditors did not ascertain the actual number of packs of cigarettes on hand at the store on that date. The auditors talked with the owners of the stores (Salah Rabi and his brother, Mohammed Rabi) about their sales history. Pursuant to requests of the auditors, the owners also sent in some additional records reflecting their sale of cigarettes. In order to calculate the number of cigarette packs sold by Store 2 during a four-month period, the auditors determined how much business the store had done in all products (including non-tobacco products) for that period. Respondent gave the Department a list of daily sales on all products sold and the taxes paid on those products for the period February 2009 through January 2010. The average monthly sales amount for the store during the audit period was $25,000. However, the Department found the information provided by Respondent to be incomplete and, thus, unreliable. The auditors then assumed that 80 percent of the store's sales were for cigarettes1/ and that the average price per pack was $4.50. Using this formula, the auditors found that approximately 4,444 packs of cigarettes were sold each month, which the auditors rounded up to 4,500. Thus, for the audit period, the auditors estimated that 18,000 packs of cigarettes were sold. Neither of the auditors testified at final hearing as to the reasonableness of the formula or as to their alleged conversations with the owners. Based on their findings, the auditors concluded that Respondents owe a balance of $77,798.23. That figure was derived as follows: Total packs purchased 3/09 - 6/09 from Dosal 65,490 from Sam's 37,770 Total purchases prior to 7/1/09 103,260 Estimated monthly sales at 4,500 packs per month for four months 18,000 Total estimated inventory on 7/1/09 85,260 Floor tax due on estimated inventory $85,260 Floor tax paid $ 4,963,09 Unpaid floor tax $80,296.91 Overpayment on other tobacco product $(2,498.54) Total cigarette floor tax due $77,798.37 Missing from the evidence presented was any statement by the Department as to whether, on March 17, 2010, or any other date, there were 80,000-plus packs of cigarettes visible at the store. It seems plausible that so many packs, even if in cartons of 10 packs apiece, would be easy to identify. Respondent refutes the basic premise of the auditor's findings. Using cash register receipts (called Z Tapes) from March and May 2009 (two of the four months at issue), Respondent was able to establish a more accurate percentage of cigarette sales versus all products sold. The Z Tapes are printed out each day by way of turning a key on the cash register. The tapes print out a receipt showing the date, the number of packs of cigarettes sold, the number of food items sold, and the number of taxable items sold. According to the Z Tapes, close to 90 percent2/ of Store 2's total sales for those months were cigarette sales, i.e., a much higher percentage than used by the auditors. The evidence presented by the owners is credible and persuasive. Respondent also provided a calculation of its price per pack of cigarettes. The price depends, in part, on how much they pay the distributors for each pack or carton of cigarettes. Of its four best selling cigarettes, the following costs were determined for the period March through June 2009: Brand Cost Markup Markup% Price 305's 2.93 .06 2 2.99 Marlboro 4.66 .08 1.7 4.74 Romy 2.75 .21 7.0 2.96 Newport 4.45 .34 7.6 4.79 Then, using the inventory of products on hand, a weighted average markup percentage was calculated as follows: Brand Weighted Number Weighted Cost Weighted Price Markup 305's 5,900 17,287 $17,641 Marlboro 1,957 9,394 9,276 Romy 1,611 4,430 4,769 Newport 108 454 517 TOTAL 31,565 $32,203 2.02% Based on the foregoing calculation, the owners estimated an average price per pack of $3.00, i.e., much less than the $4.50 per pack figure utilized by the auditors. The unrefuted testimony of the owners is credible and seems reasonable based upon the facts. Inasmuch as neither of the auditors was available to provide further justification for their price-per-pack estimation, the owners' calculation is accepted for use in this proceeding. Respondent purchased 91,520 packs of cigarettes during the period of March 2009 through June 2009. Respondent sold 55,634 packs of cigarettes during that same period. The average price per pack sold was $3.00 (three dollars). Based on the foregoing, Respondent had a floor inventory of 35,886 packs of cigarettes on July 1, 2009. Respondent paid a cigarette surcharge floor tax of $4,963.09 on July 15, 2009. Respondent also overpaid its floor tax for other tobacco products by $2,948.54 for a total of $7,815.83 in payments to the Department. That amount should be credited against any tax liability determined in this proceeding. The Department provided bank statements for Store 1 and Store 2 showing much larger monthly transactions than evidenced by the stores' sale of products. That fact raised a red flag justifying further investigation into Respondent's business. However, the discrepancy was explained by the fact that Respondent does a large amount of check-cashing business at its stores. The large bank transactions are not relevant to the issue in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, imposing a cigarette surcharge in the amount of $35,886 (thirty-five thousand, eight hundred and eighty-six dollars) against Respondent, Discount Zone, Inc., d/b/a Lakeland Discount Beverage, Inc., minus $7,815.83 already paid. DONE AND ENTERED this 12th day of May, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2011.
The Issue The issue presented is the amount of money Petitioner owes Respondent as a result of unmetered electrical consumption.
Findings Of Fact On September 21, 1989, Debra K. Zaleuke, a current diversion investigator for Respondent, received an anonymous telephone call advising that Petitioner had been bragging about his illegal underground tap located somewhere on Petitioner's 10-acre property. She went to that property located at 2943 "B" Road, Loxahatchee, Florida. When she arrived at the trailer located at that address, she could hear that the air conditioning unit was operating. She shut off the main breaker, but the air conditioning system continued to run. She returned to the property on September 22, 1989. Petitioner was there on that occasion. When he saw her, he ran inside his trailer and shut off the air conditioning. She asked him to turn the air conditioning system back on, and he advised her that it had just "burned up." Zaleuke pulled the electric meter and used a Wiggins tester, which showed amperage still being pulled through the meter can. She summoned a crew with a Dimatel underground fault locator, and they started digging. Petitioner told them that they "would not be able to find it." They continued digging and eventually found the underground location of the illegal tap. The tap went directly to an above ground breaker system so the tap could be turned off and on at will. Petitioner's electrical service was discontinued that day. The illegal underground tap was taken to Florida Power & Light Company's evidence room. The meter which was removed from Petitioner's property was subsequently tested and found to be operating properly. Petitioner has been the customer of record since 1981. In August, 1987, the house located on the property burned, along with Petitioner's electric meter. In August of 1987, Florida Power & Light Company set a new meter at Petitioner's property. Even after Petitioner's home burned down, Petitioner continued to consume electricity at that address. He testified that he used electrical tools and ran water pumps for irrigation purposes even while tearing down the burned structure that had once been his residence. The property also has on it a structure where Petitioner houses his helicopter. Eventually, a trailer was moved onto the property, in which trailer Petitioner resided at the time that Florida Power & Light discontinued electrical service to him. Since a new meter was installed in August of 1987, and since Petitioner's electric bill during the month of September, 1987, dropped to "0" even though Petitioner was using, by his own admission, electrical equipment at the time, Zaleuke chose the month of September, 1987, as the starting date for recomputing the backbilling to be rendered to Petitioner for his unauthorized and unmetered electrical consumption. Using the seasonal average method approved by the Florida Public Service Commission, she estimated the energy consumed through the illegal underground tap. She also computed the amount of expense Florida Power & Light Company had incurred in locating and terminating the illegal condition. Florida Power & Light Company rendered to Petitioner its backbilling in the amount of $3,856.28 representing the unauthorized, unmetered consumption of electricity from September, 1987, to September, 1989, together with its investigative costs. Petitioner has continued to refuse to pay the bill rendered to him, and his electrical service at that address remains disconnected. Zaleuke's calculations for both unmetered electrical consumption and investigative costs are reasonable, and the billing rendered to Petitioner is reasonable. Florida Power & Light Company has notified Petitioner of the conditions required for the restoration of service to his property. Those conditions are as follows: (1), Petitioner will provide a meter can on a pole anywhere on his property outside of a three-foot diameter from the existing yard pole; (2), Florida Power & Light Company will provide an overhead service drop to the meter can at no charge; and (3), Petitioner will pay whatever the Public Service Commission deems Petitioner's final bill to be. These conditions are reasonable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner owes Florida Power & Light Company the backbilled amount of $3,856.28. DONE and ENTERED this 2nd day of December, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1991. APPENDIX TO RECOMMENDED ORDER Respondent's proposed findings of fact numbered 1-4, 6-10, and 12-15 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 5 and 11 have been rejected as being unnecessary. Respondent's proposed findings of fact numbered 16-19 have been rejected as not constituting findings of fact but rather as constituting statements of Petitioner's position which position is not supported by the weight of any credible evidence. COPIES FURNISHED: Steve Tribble, Director of Records and Recording Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 David Swafford, Executive Director Public Service Commission 101 East Gaines Street, Room 116 Tallahassee, Florida 32399-085 Rob Vandiver, General Counsel Public Service Commission 101 East Gaines Street, Room 212 Tallahassee, Florida 32399-0850 K. Crandal McDougall, Esquire Florida Power & Light Company P.O. Box 029100 Miami, Florida 33102-9100 Martha Carter Brown, Esquire Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0870 Larry Timm P.O. Box 494 Loxahatchee, Florida 33470 Larry Timm 2943 "B" Road Loxahatchee, Florida 33470
Findings Of Fact On September 12, 1995, Petitioner became a Florida Power customer. He received electricity service in his name at an apartment located at 2950 N. Pinehill Road #31, Orlando, Florida. From September 1994, through December, 1994, Petitioner occupied the apartment at 2950 N. Pinehill Road #31, Orlando, Florida. Petitioner's meter indicated he used 827 Kwh from September 12, 1994, through October 4, 1994. Petitioner's meter indicated he used 1525 Kwh from October 4, 1994, through November 2, 1994. Petitioner's meter indicated he used 1548 Kwh from November 2, 1994, through December 5, 1994. Petitioner's final bill was for December 5, 1994, through December 28, 1994. The meter indicated he used 221 Kwh for this final period. Respondent's tariff sheet 8.05 filed with the Commission sets forth the length of time within which Respondent must disconnect a customer's service after receiving a disconnect order. Respondent must disconnect service within 3 days of receiving the disconnect order. On December 26, 1994, Petitioner requested that his service be disconnected on December 27, 1994. Respondent disconnected Petitioner's service on December 28, 1994. On January 12, 1995, Petitioner's meter was tested in St. Petersburg, Florida. Petitioner's meter registered 99.96 percent accuracy.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Commission enter a Final Order finding that Respondent acted in compliance with applicable law and did not overbill Petitioner. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of January, 1995. DANIEL S. MANRY, 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 2nd day of January, 1995. COPIES FURNISHED: Rodney Gaddy, Esquire Florida Power Corporation 3201 34th Street, South St. Petersburg, Florida 33711-3828 Thomas Fuller Post Office Box 617217 Orlando, Florida 32861 Robert D. Vandiver, General Counsel Florida Public Service Commission Gerald L. Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Noreen S. Davis, Director Division of Legal Services Florida Public Service Commission Gerald L. Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
The Issue The issues to be resolved in this proceeding concern whether the Respondent is guilty of conduct which violates certain provisions of the Emerald Coast Utilities Authority (ECUA) policy manual amounting to conduct unbecoming an ECUA employee; theft; and violation of ECUA rules or policies concerning outside employment, by allegedly securing outside employment without completing a proper form and receiving advance approval for such outside employment.
Findings Of Fact The Petitioner Emerald Coast Utilities Authority (formerly Escambia County Utilities Authority) is an Agency of local government established pursuant to an enabling act of the Florida Legislature at Chapter 81-376 Laws of Florida, as amended. It is a Regional Water Supply Authority for purposes of Sections 163.01 and 373.1962, Florida Statutes (2006). It is thus given authority to supply utility services to persons and businesses residing in a defined area in Escambia County, Florida, including the provision of water utility service. It is authorized in that Act to employ personnel to secure the provision of such utility services and to regulate the conditions and terms of their employment, their retention, their hiring, and their termination, as well as other forms of employee discipline. It has provided for such regulation of its personnel through the adoption of a "Human Resources Policy Manual" (Manual). That Manual was adopted in accordance with Part 3, Chapter 112, Florida Statutes. The Respondent, at times pertinent hereto, was a utility service technician employed by the ECUA. During his tenure with the ECUA he worked for a number of different supervisors and essentially every district of the ECUA's service area. On April 1, 2006, the Respondent, John Crosby and his wife Patricia Crosby, took title by deed to residential property at 319 West Clay Street, in Pensacola, Florida. They begin renovating that house located at that address for use as a residence. Sometime during the next several months, either because work was being performed on the plumbing or because of inability to pay the water bill, the Respondent had the water service temporarily stopped. The account remained open, however, and was not closed or inactivated on the records of the ECUA. There was an amount billed and outstanding which was unpaid. On or about November 28, 2006, due to the unpaid water bill becoming significantly delinquent, a "cut-off order" to stop water service to the address at 319 West Clay Street was issued and an employee of the ECUA, Donald George, was sent to that address to cut-off the water service. When Mr. George went to 319 West Clay Street and opened the meter box, he saw a "straight pipe" device installed in the meter box and connected to the water line from the street to the house. This straight pipe, thus connected, had the effect of bypassing the water meter so that any water used at that address or residence would not be registered on the water meter and, therefore, it would be impossible to bill for that water. Mr. George called his supervisor, Joe Creary, and asked for instructions concerning this situation. Mr. Creary ordered him to remove the water meter and leave the premises. The next day he was sent back to those premises to turn the water off and to take the straight pipe out of the water line and utility box. He did so and gave the straight pipe device to Mr. Creary. Joel Roberts does Risk Management investigations, as well as performing as a work place Safety and Training Specialist for the ECUA. He received a report regarding the use of the straight pipe at 319 West Clay Street from Mr. Creary. He went to that address and observed the straight pipe installed in the water meter box in the water line to the house at that address and took pictures of it and the residence. He prepared an incident report and then made an investigation to establish who the last customer of record was. The last customer of record was the Respondent, John Crosby, who was still a customer of record on November 28, 2006, when the straight pipe was discovered. The photos of the straight pipe installed were taken November 29, 2006, before it was removed by Mr. George. The Respondent acknowledged that he had a straight pipe device in his possession. He kept it in his personal tool box. He maintained that he used it for making emergency service calls in the area near his home, using his own personal vehicle. He stated during the course of the investigation that he did not know how his straight pipe device became installed at the meter box at the subject property. He speculated that someone was trying to cast him in a bad light or playing a joke possibly, but he did not know who could have done it. During the investigatory phase of this proceeding, he acknowledged that the straight pipe device was his own. Later, he changed his story, to the effect that although he possessed a straight pipe device kept in his personal tool box, that the one placed in the meter box on his water line was not the same one. He maintained that later contention through his testimony at hearing. Several of the ECUA regional supervisors testified, essentially all of whom who had previously supervised the Respondent. Uniformly they established that there was no policy which permitted employees, such as the Respondent, to use their personal vehicles to make service calls after regular working hours or otherwise. They also established that there was no policy which allowed employees to keep or maintain company equipment in their personal possession away from the employment premises of the ECUA as, for instance, a straight pipe device such as the Respondent had possessed at times pertinent to this proceeding. During a February 9th, 2007, hearing conducted by the Petitioner, the Respondent denied placing the straight pipe in the meter box and denied knowledge of who may have done so. He did admit that the straight pipe was property of ECUA which he had previously used in the performance of official duties after hours when responding to "dirty water complaints." He admitted that the straight pipe, ECUA property, had been kept in his personal tool box, but later he changed his story to say that the straight pipe in the meter box was not his own because he had since found his own straight pipe device in another tool box. The fact remains, however, that the Respondent has had difficulty in his ability to keep his water service account current for the above address, and there is a delinquent outstanding balance on that account. The Respondent was the only person who could have benefited from installing the straight pipe in place of his water meter in order to obtain water free of charge, which he did. While it is possible that another person installed the straight pipe in place of the Respondent's water meter and that the testimony of the Respondent's fellow employees is untruthful, the preponderant, persuasive evidence reflects that the Respondent had the greatest motive and the best opportunity to install the straight pipe device and to thus wrongfully obtain free water service at his property. His explanations of how the straight pipe device might have been theoretically placed by some unidentified third party is self-serving testimony. It is testimony which defies logic and which is out- weighed by that of his co-workers to the contrary. The Respondent's testimony in these particulars is thus discounted and not accepted because of insufficient credibility. It has thus been established by preponderant, persuasive evidence that the Respondent is the party who installed the straight pipe device in the water meter box at the property at 319 West Clay Street, Pensacola, Florida, in order to divert un-metered water to the use of persons at that property which belonged to the ECUA. Such water has not been paid for in accordance with the approved rate structure of the ECUA for metered water. The testimony of Tina Shelton establishes that the Petitioner has adopted a code of ethics and a body of personal rules and regulations. These are incorporated in its Human Resources Policy Manual. She established that the current Manual is supplied to all employees; and also established, through Petitioner's Exhibit 11 and her testimony, that the Respondent received the Manual on July 20, 1999. She also established that the Respondent's outside employment with Tom Thumbs Stores, Inc., has not been the subject of any approval form submitted by the Respondent. She established that outside employment had not been approved by the Petitioner and that therefore the Respondent has violated Section A-9(5), of the referenced manual concerning outside employment.
Findings Of Fact The Petitioner, John Michael Hatcher, is an electrician by training and was employed at times pertinent hereto by the City of Gainesville. His job as an electrician spanned the years 1979 to 1992. He first worked at the Deer Haven Power Plant operated by the City of Gainesville. In 1987, he was transferred to a position as a substation electrician with the City utility entity. His primary duties as a substation electrician involved performing maintenance and repair to high-voltage circuit breakers and other equipment involved in the transmission and distribution of electrical power. Substation electricians perform their work by employing two crews of three members each. On each crew, there were two electricians and one crew leader. The work of substation crews is performed on 90-day schedules. In September of 1992, the Petitioner was suspended from his position for "inability to perform the essential functions of his job" and was ultimately terminated on October 7, 1992. That termination was upheld by the City of Gainesville through its grievance process on November 10, 1992, after exhaustion of the three-step grievance process provided for in the City's collective bargaining agreement. Sometime in 1987, the Petitioner experienced breathing difficulties or respiratory irritation, when in the presence of electric power circuit breaker vapors, related to petroleum products used to cool the circuit breakers. The Respondent installed high-volume ventilation fans at the substation and encouraged the Petitioner to use the fans to remove the noxious vapors from the power circuit breaker area prior to the fume exposure which he states caused his injury. The Respondent also advised the Petitioner to use breathing masks. The ventilation fans proved to be effective in removing the vapors which the Petitioner found irritating in the electric substation environment. The masks were also effective in allowing him to work in that environment without being bothered by the fumes, as he admitted. These steps solved the Petitioner's problem in his main working environment but still left a problem for him when he drove the vehicle he used to get from job site to job site. The Petitioner maintained that he was bothered by exhaust fumes when traveling through downtown traffic in the open van-type vehicle. The Respondent recommended that he wear the breathing mask during this time, as well, and he acknowledged that it was effective in preventing the respiratory irritation that had bothered him when driving or riding in the van. The Petitioner, however, advised that he could not wear the protective mask for very long periods. This was purportedly because the heat and humidity gave him problems wearing the mask for an extended period, although traveling across a town the size of Gainesville did not take a very extended period of time. The protective mask was shown to be effective at his regular work station and in the van. The irritation problem was caused by the Petitioner not timely donning the mask before he became symptomatic. It is not clear exactly when, after mid-1987, the Respondent learned that the Petitioner was purportedly having breathing difficulties in association with his work environment. In any event, during mid-1989, the Respondent, after hearing that the Petitioner had experienced breathing difficulties when in the presence of power circuit breaker vapors, began an independent study of the causes of his complaint. This was in addition to its recommendation that he use the high-volume ventilation fans and the protective masks the Respondent provided. The Respondent's risk management division hired Lipsey & Associates to conduct a toxicology evaluation of the areas in which the Petitioner worked. The air quality in the Petitioner's work environment, tested by this independent firm, was found to be within appropriate air-quality standards or "OSHA" standards. None of the Petitioner's co-workers suffered the symptoms the Petitioner complains of. The Petitioner did not always wear the breathing mask in the work areas where fumes occur nor does he always wear it when driving the van through downtown Gainesville. Because of the Petitioner's health complaints, he was referred to the Family Practice Medical Group and examined by Dr. Marvin Dewar on June 8, 1992. Previously, the Petitioner was examined by Dr. Pravda on April 23, 1991 and diagnosed with sinusitis and asthma. He was examined by Dr. Stringer, an ear, nose and throat specialist, on August 27, 1991, with no physical abnormalities being found. He was also examined by Dr. Gonzalez-Rothi on October 10, 1991, with no significant pulmonary disease being found. He was then diagnosed with a "sinobronchial syndrome". During this period of time, beginning in 1989, the Petitioner's attendance for his various evaluation periods was rated "conditional" and "below average" (in 1990-1991). In 1992, he received a score of "2" (out of 10) for below-average attendance. His absences in the 1992 evaluation period increased both in number of hours used and number of incidents. The Petitioner attributed his absences during his 1992 evaluation period to a recurring illness caused by his exposure to irritants in the work place. He acknowledged in his testimony, however, that the breathing mask and ventilation fans had helped prevent the problem but that he did not always avail himself of the protective devices on a timely basis to prevent symptoms. Rather, he only wore the masks intermittently after he felt symptomatic with respiratory irritation. Because of his continuing absences, the Respondent finally notified the Petitioner that he was being terminated, due to an inability to perform the essential functions of his job, rather than because of an unwillingness to do so. At the time the Petitioner was notified that his employment would be terminated, he had not ever informed the Respondent, or filed any claim, for an alleged disability. The Respondent was aware that he had a sensitivity to petroleum and automotive fumes, but with the ventilation fans and masks that it had provided, and with the air quality report stemming from the study, the Respondent was of the belief that the Petitioner was able to perform all of the duties of his job as an electrician. It only became convinced that he was unable to perform the essential functions of his job because of the frequency of absences, which failed to improve. An informal conference related to the termination was scheduled for September 17, 1992 and held on September 21, 1992. At this time, the Petitioner had not yet informed the Respondent of any alleged disability, as shown by Mr. Holder's testimony. Although the Petitioner claimed in his testimony that he informed the Respondent of his diagnosis of "chronic fatigue immune system dysfunction" and "idiosyncratic reaction to petroleum vapors" by purportedly giving Mr. Holder, his supervisor, a copy of Dr. Itzkowitz's diagnosis on one of the prescription forms, the credible testimony and evidence is that those diagnoses were not known to the Respondent nor discussed at the September 21, 1992 informal conference. The credible evidence and testimony shows that the Petitioner informed the Respondent that he had found a doctor who had diagnosed his problem and could cure him, but did not mention any handicap or the need for any accommodation at the time of that informal conference. In fact, the Petitioner's testimony in this regard is contradicted in a document he himself wrote, in evidence as Respondent's Exhibit 3. In this self-authored "termination summary," the Petitioner himself states that prior to that September 21, 1992 meeting with management, management personnel did not know he had found a doctor who had diagnosed his condition. The Petitioner attempts to correct this contradiction by testifying that his statement to that effect referred to "upper management" not knowing. This attempted correction is itself contradicted by the Petitioner's statement on direct examination that he believed Mr. Holder would give the prescription form document, supposedly containing his diagnosis, to Mr. Holder's superior, Mr. Williams. Therefore, if, indeed, he had given the diagnosis on the prescription form to Mr. Holder, and if his statement that he believed Mr. Holder would convey it to Mr. Williams and "upper management" is his true belief, how could he then testify that management did not know (unless he really knew he had never informed the Respondent at or before the September 21, 1992 meeting at all)? Indeed, that is found to be the case. The Respondent did not learn of Dr. Itzkowitz's diagnosis until after that conference. In testifying at hearing, the Petitioner presented a "diagnosis" of "chronic fatigue syndrome" and "hypertriglecemia" by presenting a prescription form of Dr. Itzkowitz as Petitioner's Exhibit 2. That form is dated August 24th. The Petitioner stated that he presented it to his supervisor, Mr. Holder, in August or early September of 1992, before his September 14, 1992 suspension. He stated that he believed Mr. Holder would give the document to his superior, Mr. Randy Williams. In contrast, the Respondent presented its Exhibit R-1, which is a copy of the same document on Dr. Itzkowitz's prescription form. This copy is undated. It had been included in a packet of medical information from the Petitioner to the Commission, which contained copies of all the medical information previously submitted to the Respondent by the Petitioner. When asked how the same document could be dated in one version and undated in another, the Petitioner stated that he had received an undated version from Dr. Itzkowitz and had returned it to her for signature, whereupon the date was put on it. Dr. Itzkowitz, in her testimony, however, contradicts this and stated that she "absolutely" dated the document when she originally wrote it. The Petitioner and Dr. Itzkowitz cannot both be right. One of the two is either giving untrue testimony or has a very faulty memory in this regard. In any event, the authenticity of the document containing the purported diagnosis and by which the Petitioner maintains he informed the Respondent of his diagnosis and handicap before his suspension, the September 21, 1992 meeting, and his termination, is called into serious question, as are the motives of the document originators, particularly the Petitioner. It is thus found that the Respondent was not informed of the Petitioner's diagnosis and handicap before the termination and that Mr. Holder's testimony in this regard to the effect that he did not know of any handicap, or the diagnosis upon which the Petitioner relies, before the termination, is accepted as more credible and worthy of belief under these circumstances. The Petitioner's Exhibit 2 is not deemed a credible document. Subsequent to the Petitioner's September 21, 1992 informal conference with the Respondent, Petitioner's physician, Dr. Itzkowitz, sent the Respondent a letter dated September 29, 1992, stating her diagnosis of fibromyalgia and idiosyncratic reaction to petroleum vapors. Dr. Itzkowitz's letter to the Respondent does not state that the Petitioner was able to perform the duties as a substation electrician. The doctor states that he would do well at his previous assignment (power plant electrician). The doctor's September 29, 1992 letter finds "significant, reversible respiratory illness" even though prior medical examinations found no physical abnormalities. The doctor also supplied a "certificate of examining physician", for purposes of the Petitioner's unemployment compensation claim, stating that the Petitioner was unable to work from August 14, 1992 through September 14, 1992. In fact, that was an inaccurate statement because the Petitioner worked all but about four of the days between those two dates. The Petitioner submitted this document to the Department of Labor, Division of Unemployment Compensation, without advising that entity that the information was incorrect and that, indeed, he had been working during most of that period of time. When Dr. Itzkowitz was questioned by the Respondent about the Petitioner's ability to work during that period, following exchange occurred: Do you have any recollection as to whether or not Mr. Hatcher was actually not working during all that period? When Mr. Hatcher came to me, he told me he was not allowed to work. Whether that meant that he was given time off, he was suspended, or what, I have no clue. 2. So, when you say unable to work, you are going from what Mr. Hatcher told you? a. Or what other information was given to me, and again this is only a partial record. I mean I don't have the full record here, and what I do have I can't read. (See Petitioner's Exhibit 1 in evidence) However, according to the information on Respondent's Exhibit 4, the Petitioner became Dr. Itzkowitz's patient on August 14, 1992; and on that same day, the doctor wrote the Petitioner a doctor's excuse to be off work indefinitely. The Petitioner, however, only stayed off work for four days. The Petitioner was asked in this regard: Q. Whose idea was it for you to go back to work, yours or hers? Dr. Itzkowitz being the her. A. Mine, I believe. Q. Did you check with her to see if that was approved? A. Yes. Consequently, when Dr. Itzkowitz filled out the form represented in Respondent's Exhibit 4 in evidence, she must have known that it was not really accurate that the Petitioner was unable to work from August 14, 1992 through September 14, 1992. She authorized the Petitioner to be off work and approved the Petitioner returning to work, if the Petitioner's testimony quoted last above is true, that is. In any event, it has not been credibly demonstrated that the Petitioner had to be off work due to any disability or illness from August 14, 1992 through September 14, 1992. Up to the date of his termination on October 7, 1992, the Petitioner had not actually alleged a disability nor had he requested accommodations for such. He was terminated based upon his inability to perform the essential functions of his job and not because of his handicap. He could not perform the essential functions of his job because he was not there often enough, due to his pattern of frequent absences. He is able to perform the duties of his electrician job without accommodation, aside from the presence of irritating fumes. The problem of the irritating fumes was already alleviated by the voluntary provision of ventilation fans and face masks provided to him by his employer. After his termination on October 7, 1992, the Petitioner appealed to the third level or step of the Respondent's internal grievance procedure and alleged there for the first time that he was handicapped by "chronic fatigue syndrome". He requested accommodations for that alleged disability. The accommodations he requested involved a proposed return to his previous position as a power plant electrician at the Deer Haven Power Plant or the setting up of a rotating assignment, as a full-time position, as well as the allowance of an air-conditioned truck to perform this new position. None of the accommodations requested involved the Petitioner performing the same job and position from which he was terminated. During the period of time the Petitioner was experiencing high absenteeism from 1989 through 1992, purportedly because of his aversion to the fumes, he was encouraged to apply for other positions with the City that would take him away from fumes. The Petitioner stated to the Respondent during his "step 3" grievance conference, after his initial termination, that he considered job openings in the Human Resources Department but had not talked to anyone with that entity or filed an application. Subsequent to his termination, he applied two or three times for a position as a power plant electrician, the position he held before becoming a substation electrician. He falsified his application, where he stated that he had never been discharged or terminated but he was still allowed to take the test for the open position. Instead of testing for the position, however, he called the Respondent before the day of the test and advised the Respondent that he could not take the test due to illness. This is somewhat curious. Since the test was scheduled for the afternoon, it would seem if he wanted to avoid the test due to illness on the day of the test, he would have called on the morning of the test, rather than the day before it was administered to state that he could not take the test due to illness. The Petitioner could have consulted a physician to find out if something could be done to allow him to take the test at a different time and he could have called and requested some accommodation in taking the test, if he believed he was an applicant with a handicap. However, The Petitioner did neither of these things. He simply said he could not take the test due to illness and apparently never sought any alternative time or means of taking the test to become qualified for the position. This calls into question whether the Petitioner genuinely has any interest in returning to work at the power plant. Moreover, in his Petition for Relief, the Petitioner requested that he be reinstated to his former position. Subsequent to his termination, however, he filed a claim for social security benefits. In order to be considered disabled for purposes of social security benefits, a person must be "unable to do any substantial, gainful work due to a medical condition which has lasted or is expected to last for at least 12 months in a row. The condition must be severe enough to keep a person from working not only in his or her usual job but in any other substantial, gainful work." See Respondent's Exhibit 8, in evidence. The Petitioner's testimony at hearing conflicts with his representation of his condition in Respohndent's Exhibit 8. It reveals, in effect, that he did not meet this definition for disability when he unsuccessfully applied for those benefits. He was, and is, not in accord with that definition of disability, is able to work as stated above and seeks reinstatement to his former position with the power plant. The Petitioner stated in his Petition for Relief that his handicap is not hypersensitivity to petroleum vapors but, rather, is a chronic fatigue illness of his immune system, causing immune dysfunction and resulting sensitivity to drugs, allergies, odors, and chemicals. The Petitioner also alleges that the chronic fatigue causes the sensitivity to vapors. At the hearing, he could not point out any single incident of chronic fatigue suffered by him, but which preceded his sensitivity to petroleum vapors, which occurred back in 1987. The medical evidence indicates that prior to his sensitivity to vapors, his health had been good. Fibromyalgia is a chronic condition causing people who suffer from it to have chronic aches most of the time. It is a syndrome, and sufferers often also have associated chronic fatigue. The two terms are synonomous for the same condition. The Petitioner's medical history does not reflect any history of severe or chronic aches. Nothing in his medical records reflects any history of the fatigue syndrome preceding his vapor sensitivity. His allegation that his vapor sensitivity is a symptom of two separate conditions, chronic fatigue and fibromyalgia, is not credible.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered dismissing the Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 31st day of August, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-264 Petitioner's Proposed Findings of Fact 1-4. Accepted. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the findings of fact of the Hearing Officer. Rejected, as irrelevant. Rejected, as immaterial. Accepted, but not materially dispositive. 9-11. Accepted, but not itself materially dispositive. 12. Accepted, in terms of describing Dr. Itzkowitz's testimony but not as to its purported material import. 13-15. Accepted, but not itself materially dispositive. 16. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. 17-19. Accepted, but not materially dispositive. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact are accepted to the extent that they are not inconsistent with the findings of fact made by the Hearing Officer. To the extent that they differ from the Hearing Officer's findings of fact, they are rejected. Certain of the Respondent's proposed findings of fact are omitted as being irrelevant or unnecessary. COPIES FURNISHED: John M. Crotty, Esq. Post Office Drawer 2759 Gainesville, FL 32602 Ronald D. Combs, Esq. Assistant City Attorney II City of Gainesville-Law Department Post Office Box 1110 Gainesville, FL 32602 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
