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
Findings Of Fact At all times relevant hereto, respondent, Daniel R. Young, operated My Barber Shop at 17 Tequesta Drive, Tequesta, Florida. Young was issued barbershop license number BS 0006466 by petitioner, Department of Professional Regulation, Florida Barbers' Board, in 1978, and has operated the shop continuously since that time. Petitioner is required to conduct annual inspections of barber shops to ensure that such barber shops are in compliance with applicable sanitation regulations, and that services are being provided by licensed personnel. Accordingly, an agency inspector (J. Robinson) visited respondent's shop on July 11, 1985 and February 12, 1986, for the purpose of conducting a routine annual inspection. An inspection report from each visit has been received into evidence as petitioner's exhibits 5 and 6. Agency regulations (Rule 21C-22.01, F.A.C.) require that implements used by a barber in cutting hair, such as combs, brushes, razors and scissors, be washed or cleaned, wiped free of hair, and then sanitized before being used on another customer. This requires first washing the implement in a detergent or wiping it with alcohol, and then sanitizing the same under one of several methods prescribed in the rule. These methods include the use of formaldehyde tablets, a quarternary ammonia solution (barbicide), and an ultra-violet light. After being sanitized, the implements must be placed and kept in a "clean, closed cabinet until next ready for use". A closed cabinet is one that is shut tightly on all four sides so that the implements inside are protected from hair that has been cut. If an ultra-violet light is used, Subsection (8)(b) of the same agency rule, requires that the implements be sanitized in the following manner: Placed in an ultra-violet ray sterilizing cabinet bactericidal 2536A radiation for a period of 15 minutes, or for a period as recommended by the manufacturers of such radiation lamp, sufficient to equal the germicidal and organism destruction of a 2 percent carbolic acid solution, or its equivalent. However, subsection (8)(c) provides the following alternative: (c) Cleansed and prepared for use by any other method that shall be the equivalent in germicidal or organism destructive effort, as provided in subsection (8)(a) above. During the course of Robinson's inspection on July 11, 1985, she cited respondent for three violations of agency rules. These included (a) "implements not cleaned after use on each customer", (b) "implements not stored in covered, sanitized area", and (c) "ultra-violet light not being used correctly to effect sanitation". After the inspection was completed, Robinson met with respondent a few weeks later to discuss the violations. a repeat inspection was conducted by Robinson on February 12, 1986. She found the previously cited violations uncorrected. The issuance of an administrative complaint followed. At the time of the inspections, respondent's shop had five stations (chairs). There were a total of three wells in the counter which was located behind the chairs. Each well was shaped in a square design approximately 18" to 20" by 18" to 20" and was eight inches deep. At the top of the rear ledge (lip) of the two wells were ultra-violet lights covered with a shade. A photographic depiction of the same is found in petitioner's exhibit 3. One well had no ultra-violet light. While observing the employees, Robinson noted that after cutting a customer's hair, they were not first wiped clean with alcohol. The employees were then placing the used implements at the front of the well, or almost a foot away from the ultra-violet light. According to the inspector, this distance, when coupled with the fact that the lights had shades over them, was too far from the light's rays to permit adequate sanitation. This opinion was based upon a telephone conversation with a product specialist for North American Lighting. It was further based upon the supposition that Young used a type A light as referred to in the rule. Since the wells were not covered, hair from the customer then receiving a haircut was dropping into the well where the implements were being sanitized. One employee (S. Littleford) had no ultra- violet light at her station, and was supposed to be using a barbicide in lieu of a light to sterilize her implements. However, she did not sanitize her cutting implements in any manner between customers. Respondent attributed the violations to a "misinterpretation of rules and regulations". He pointed out that he has had the same type of equipment for ten years and has never before been cited for a violation. Young uses a type C ultra-violet light which is permissible under the agency rule so long as it "is the equivalent in germicidal or organism destructive effect" as is provided in subsection (8)(a) of the rule. Young contends the type C light is superior to the bactericidal type A light referred to in the rule, and that a proper amount of light was emitted to sanitize the implements even though they were placed almost a foot away from the covered light. This contention was based upon a telephone conversation with a technical support employee of General Electric Company, and technical literature forwarded by that person to Young. Respondent has subsequently removed the shades and repositioned the ultra-violet lights in the wells so that they are closer to the front.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That respondent be found guilty of violating Rule 21C- 22.01(1)(e) and (8)(d), Florida Administrative Code, and that he be fined $500, to be paid within thirty days after a Final Order is rendered in this proceeding. The remaining charge should be dismissed. DONE AND ORDERED this 18th day of December, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2581 Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 5. Covered in finding of fact 3. Partially covered in finding of fact 6. The remainder has been rejected as being irrelevant since Robinson did not testify that implements were piled-up, or scissor blades unexposed, or the implements were not turned over. Covered in finding of fact 6. Rejected as being unnecessary. Covered in finding of fact 6. Covered in finding of fact 6. Covered in finding of fact 5. Rejected as being unnecessary. Rejected as being hearsay. Rejected as being irrelevant. Rejected as being irrelevant. Covered in finding of fact 6. Covered in finding of fact 3. Covered in finding of fact 7. Rejected as being unnecessary. Covered in finding of fact 7. Covered in finding of fact 7. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 David R. Young 187 Tequesta Drive Tequesta, Florida 33469 Myrtle Aase, Executive Director Florida Barbers' Board 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner is responsible for the payment of electric use at a customer’s rental property.
Findings Of Fact Petitioner, Eddy Grosse, filed a complaint against Respondent, Florida Power and Light Company, alleging that he was not responsible for electric use of tenants of his rental property who failed to pay for their electric use. On August 5, 1996, the Intervenor, Florida Public Service Commission entered a Notice of Proposed Agency Action Order Affirming Liability for Unpaid Balance, holding that Mr. Grosse was liable to the Respondent for the unpaid balance of $871.12. Mr. Grosse requested an administrative hearing on August 26, 1996. The case was forwarded to the Division of Administrative Hearings on December 9, 1996. On January 9, 1997, the undersigned Administrative Law Judge issued a Notice of Hearing by Video, scheduling the final hearing for February 28, 1997. The Notice was sent to Mr. Grosse. The hearing was scheduled to commence at 9:00 a.m. Because of technical difficulties with the video equipment the hearing actually commenced at 10:00 a.m. Mr. Grosse did not appear at the final hearing and did not notify the Division of Administrative Hearings that he would not be appearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order should be entered dismissing Petitioner’s Petition for an Administrative Hearing and finding Petitioner liable for the unpaid balance of $871.12. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of February, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1997. COPIES FURNISHED: William Cochran Keating IV, Esquire Lorna R. Wagner, Esquire Florida Public Service Commission Gerald L. Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 Bob Stone Florida Power and Light Company Law Department 9250 West Flagler Street Miami, Florida 33174 Mr. Eddy Grosse 3501 Southwest 130 Avenue Hollywood, Florida 33027 Blanca Bayo, Director of Recording Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 William D. Talbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Rob Vandiver, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
The Issue 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
The Issue The issues in this proceeding are whether a scale used by the Respondent in his business operates in violation of the Petitioner's standards, and, if so, whether the scale should be condemned.
Findings Of Fact Petitioner is the state agency charged with responsibility for setting and enforcing standards for commercial weighing and measuring devices. The Weights and Measures Act of 1971, Chapter 531, Florida Statutes. The Respondent is in the business of buying, selling and trading coins and precious metals. Respondent owns add uses an Ainsworth Electronic Model DWT160 scale in its business. The Ainsworth is a very accurate weighing device. It measures in pennyweights. One pennyweight equals one-twentieth of an ounce Troy weight and is abbreviated On February 22, 1982, one of the Petitioner's inspectors visited the Respondent's place of business and inspected several scales used in the business including the Ainsorth scale. The inspector concluded that the scale had an outside "span" adjustment which violated the Department's rules, and issued a correction notice allowing Respondent a repair time of five days. The inspector returned several days thereafter, found the same condition to exist, and condemned the scale by sealing it with a tag marked "condemned." Respondent thereafter requested an administrative hearing, and this proceeding ensued. There is an adjusting device on the back of the Ainsworth scale. The device is easily available to users of the scale. The device is not a "zero-load balance" or its equivalent. The Ainsworth scale has such a device on its front called a "Tare bar." The Tare bar allows a user to set the scale at zero so that any objects placed on the weighing pan assembly will have their weight accurately reflected on a read out set in the face of the scale. The purpose of the adjusting device on the rear of the scale is not to set the scale at zero, but rather to adjust the span between zero and any given weight. Thus, if the Tare bar were pressed so that the scale read zero, and a known weight were placed on the pan assembly, the scale would reflect that weight. If it did not, the adjusting device on the back could be used to accurately set the scale. The adjusting device could also easily be used to reflect inaccurate weight. For example, at the hearing an object known to weigh 20.2 dwt was placed on the pan assembly, and the scale reflected a weight of 20.2 dwt. The adjusting device on the back was then moved so that the scale read 19.9 dwt. When the object was removed from the pan assembly, the scale read zero. Thus, the adjusting device could be utilized to reflect that the object on the pan assembly weighed more or less than its actual weight, while the scale would continue to appear to be measuring the weight of the object from zero. No proof was offered at the hearing from which it could be concluded that the Department has engaged in any selective or inconsistent enforcement of its rules. It appears that the Department has inspected numerous Ainsworth scales and taken various actions with respect to them. The Department has in several cases directed that adjusting devices such as the one on the back of Respondent's scale be sealed in such a way that they are not available for ready access.
Recommendation Pursuant to notice, a formal administrative hearing was conducted in this matter on July 13, 1982, in Daytona Beach, Florida. The following appearances were entered: Robert A. Chastain, Tallahassee, Florida, appeared on behalf of the Petitioner, Department of Agriculture and Consumer Services; and Fred S. Disselkoen, Jr., Ormond Beach, Florida, appeared on behalf of the Respondent, Silver Coast Coins. The Petitioner has initiated proceedings to condemn a scale used by the Respondent in the Respondent's business. Respondent requested a hearing, and the Petitioner forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. Petitioner called the following witnesses at the hearing: Joseph B. Quinn, a state inspector for the Petitioner's Division of Standards, Bureau of Weights and Measures; and Wayne Ball, the Assistant Chief of the Petitioner's Bureau of Weights and Measures. J. McBride, the Respondent's sole proprietor, testified on behalf of the Respondent. Petitioner's Exhibits 1, 2 and 3 and Respondent's Exhibit 1 were received into evidence. The Respondent has submitted a post- hearing legal memorandum which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the evidence, irrelevant to the issues, or legally erroneous.
The Issue The issues in this case are whether Respondent, Synergy International, Inc. (Respondent or Synergy), should be fined and required to take correction actions based on charges in the Notice of Violation, Orders for Corrective Action, and Administrative Penalties Assessment, DEP OGC File 09-0140 (NOV).
Findings Of Fact Since at least April 30, 2007, Respondent has operated a lighting supply company at 6060 29th Street East, Bradenton, Florida. (Despite Respondent's stipulation to this fact, Respondent presented evidence that the correct mailing address of its business actually is on 28th Street East.) Spent florescent bulbs are universal waste lamps as defined at Rule 62-737.400(5)(b)1. and universal waste as defined at 40 CFR Section 273.9. Respondent has never registered with DEP as a transporter of universal waste bulbs or notified DEP that it was transporting universal waste. Respondent has never accumulated 5,000 kilograms or more of universal waste at one time, nor has Respondent ever treated, disposed of, or recycled universal waste at its facility. DEP inspected Respondent's facility on July 16 and August 6, 2008. On the first inspection, DEP informed Respondent's owner, Matthew Gregg, that the purpose of the inspection was to see if Respondent was following the laws governing spent fluorescent lamps. The inspectors say Mr. Gregg told them that, when Synergy sells fluorescent lamps, its installers bring the spent lamps back to Respondent's premises and that sometimes customers bring spent lamps to Respondent's premises. The inspectors say they asked Mr. Gregg where Respondent stored the spent lamps, and he showed them Respondent's storeroom. They also say they asked Mr. Gregg how long the spent bulbs had been in the storeroom, and he told them "a couple of months." They say he told them that Respondent was in the process of obtaining equipment to recycle the mercury in the spent bulbs. In the storeroom were shelves with cardboard boxes of fluorescent and other lamps and bulbs and other product. The inspectors say Mr. Gregg told him that the spent fluorescent lamps were kept in the boxes on the shelves, some of which were labeled "hazardous waste." From their vantage, the inspectors did not see any labels on any of the boxes saying "Spent Mercury- Containing Lamps for Recycling," "Universal Waste Mercury Lamps," "Waste Mercury Lamps," or "Used Mercury Lamps." They did not turn the boxes around on the shelves and did not look at all surfaces of the boxes. There was no evidence that they told Mr. Gregg they considered the boxes not to be properly labeled. The inspectors also observed fluorescent lamps, including four broken lamps, in a flimsy plastic bag that was torn. They told Mr. Gregg that the broken lamps had to be cleaned up and put in a proper container, not just in a flimsy plastic bag, and properly labeled. In response, Mr. Gregg had an employee who was present working in the storeroom clean up the broken lamps and put them in a proper container. It is not clear from the evidence how the container was labeled. Mr. Gregg contends that the evidence did not prove how long the lamps were in the plastic bag prior to the inspection, or when the four lamps were broken, and that it is possible the storeroom worker was in the process of filling an order while the inspection was ongoing. But it is telling that neither Mr. Gregg nor the storeroom worker mentioned this to the inspectors at the time, as Mr. Gregg himself concedes. For this reason, it is found that the storeroom worker was not in the process of filling an order while the inspection was ongoing, but rather that the plastic bag with the four broken lamps had been there for an extended but unknown period of time prior to the inspection. The inspectors did not see any labels saying "Spent Mercury-Containing Lamps for Recycling," "Universal Waste Mercury Lamps," "Waste Mercury Lamps," or "Used Mercury Lamps" on the premises that day. They did, however, see the following label in the office area: FLUORESCENT LAMP RECYCLE PACKCALL FOR PICK-UP 877-220-5483 WARNING: THIS BOX CONTAINS MERCURY Hg HAZARDOUS MATERIALS On the second inspection, DEP just drove through the parking lot and around to the back of Respondent's premises. They saw the contents of the storeroom on the pavement behind the building. An employee of Respondent (the same employee who cleaned up the broken lamp on the first inspection), told them that the storeroom contents had been removed to allow Synergy to clean out the storeroom that day. The inspectors observed fluorescent lamps standing in and sticking out of the top of boxes on the pavement. Some of them appeared to be spent lamps; some did not appear to be spent lamps. Some of the lamps, both apparently spent and apparently unspent, were "green-tip" lamps, a type of Phillips-brand fluorescent lamp made with less than 0.2 mg per liter (mg/L) of mercury, as measured by the Toxicity Characteristic Leaching Procedure (TCLP), which is the "universal waste" threshold. There also are other brands of fluorescent lamps that have a TCLP of less than 0.2 mg/L of mercury. The inspectors could not determine whether particular florescent lamps observed during their "drive-by" inspection had been made with a TCLP of more than or less than 0.2 mg/L of mercury. They did not inspect further or ask any questions about the lamps they saw. It is possible that DEP's inspectors failed to obtain and preserve independent evidence of the TCLP values of the particular florescent lamps being stored at Respondent's facility because they were lulled by Mr. Gregg's initial statements. After Synergy received a warning letter from DEP, Mr. Gregg has maintained that DEP's inspectors misunderstood him during the first inspection. He contends that he did not admit to transporting spent fluorescent lamps and storing them. He contends that, when he told DEP's inspectors that Respondent transports and stores lamps, he meant non-fluorescent lamps and new fluorescent lamps that are stored on the premises and transported to customers. DEP contends that Respondent's more recent position is a fabrication. In response to Mr. Gregg's testimony, DEP called James Jones, who was an installer for Synergy from May to October 2007.3 Mr. Jones testified that Mr. Gregg instructed him and other Synergy installers to transport spent bulbs to Respondent's premises. He testified that he followed those instructions, including on a job in 2007 when he replaced approximately 800-1,000 florescent lamps at a Sav-a-Lot store in Naples. According to Mr. Jones, some of the lamps replaced and brought back to Synergy were so old that the stamped brand logo was worn off. The former installer's testimony conflicted not only with Mr. Gregg's but also with the affidavits of another installer and of an employee of Synergy. The DEP witness attacked the credibility of Mr. Gregg and the affiants, accusing them of bias. However, it is clear that the witness acknowledged, agreed to, and signed Synergy's written policy prohibiting installers from accepting spent lamps from customers. If Mr. Jones was telling the truth, Mr. Gregg and Synergy condoned the violation of the written policy. At the hearing, DEP's expert, Mr. Dregne, testified that at least some of the florescent lamps in Synergy's storeroom on July 16 and outside the storeroom on August 6, 2008, probably met the TCLP threshold for regulation because, based on Mr. Gregg's initial statements to the DEP inspectors and the testimony of former installer, they were a random mix of lamps being taken out of service in July 2008. The length of time a florescent lamp lasts depends on use and other factors. The lamps can last for ten years or more. For about ten years, florescent lamps falling below the TCLP threshold for regulation have been manufactured in the United States. Not all lamps now manufactured in the United States fall below the TCLP threshold for regulation. (Lamps manufactured outside the United States generally do not fall below the TCLP threshold for regulation, but they generally are not sold in the United States.) Based on a preponderance of all the evidence, it is found that Respondent's position since receiving a warning letter from DEP has been a fabrication in that Mr. Gregg actually and truthfully made the statements in Findings 6-7, supra, and that at least some of florescent bulbs in Synergy's storeroom on July 16 and outside the storeroom on August 6, 2008, probably had been made with a TCLP of more than 0.2 mg/L of mercury. Mr. Gregg testified that fluorescent lamps on the premises in plastic bags and any other containers unsuitable for spent fluorescent lamps were not spent lamps but were defective new lamps that were kept in Respondent's storeroom for purposes of processing warranty claims. Mr. Gregg's testimony was consistent with Synergy's written policy (also acknowledged, agreed to, and signed by DEP's witness) that "[d]efective product is to be kept on hand until credit is issued or manufacturer requests return of product." However, it is not relevant whether the florescent lamps were spent or defective new lamps. See Conclusions 20 and 22, infra.
The Issue Whether the Respondent failed to provide proof of workers' compensation coverage or exemption, and proof of having completed 14 hours of approved continuing education in response to an audit conducted by the Electrical Contractors Licensing Board for the biennium commencing September 1, 1996, and terminating on August 31, 1998, in violation of Subsection 489.533(1)(o), Florida Statutes, by violating Subsections 489.515(3) and 489.517(3), Florida Statutes, and Rule 61G6- 9.011, Florida Administrative Code, as alleged in the Amended Administrative Complaint.
Findings Of Fact The Petitioner is the State of Florida, Department of Business and Professional Regulation (DBPR), the state agency charged with regulating the practice of electrical contracting in Florida and those licensed under Chapter 489, Florida Statutes, pursuant to Section 20.165, and Chapter 455, Florida Statutes. The Respondent is, and has been at all times material to the allegations in the Amended Administrative Complaint, an electrical contractor licensed by the Electrical Contractors Licensing Board. From 1987 until 2000, the Respondent was a registered electrical contractor, holding license number ER 0010816. Since August of 2000 the Respondent has been a certified electrical contractor holding license number EC 0002356. The Respondent's practice pursuant to his registered license was a prerequisite to issuance of his certified license. All insurance and continuing education requirements for renewal of a license issued by the ECLB are set forth in Sections 489.515 and 489.517, Florida Statutes, as well as Rule 61G6-9.004, Florida Administrative Code, and are identical for certified and registered electrical contractors. In March of 1999 the ECLB conducted a random audit of the insurance and continuing education requirements established in Rule 61G6-9.004, Florida Administrative Code, for the biennium commencing September 1, 1996, and terminating August 31, 1998. The Respondent was one of the licensees randomly chosen for this audit. In response to the initial audit letter sent to the Respondent on March 17, 1999, the Respondent submitted insurance and continuing education documentation. This documentation reflects: no evidence of workers' compensation coverage or exemption for the audit period; no evidence of approved continuing education for the audit period; and no evidence of required liability insurance for the audit period. The continuing education documentation submitted by the Respondent was for the prior biennium, in February 1996. On July 19, 1999, the ECLB forwarded the Respondent a follow-up letter, indicating that he was still lacking the documents enumerated in Finding of Fact Number 5. In response to this letter, the Respondent submitted documentation of the required liability insurance and of workers' compensation for May 1, 1997 through June 22, 1999. At hearing, the Respondent produced a document similar to those previously provided to the DBPR documenting his workmen's compensation insurance from March 1, 1995 to May 1, 1997. The date of this document was the same as the date on the materials previously furnished to DBPR. The Respondent testified that his insurance agent had faxed the requested documents to DBPR and sent copies to him. He received all of the documents substantiating his insurance from May 1, 1997 until June 22, 1999. His agent presumably forwarded or faxed the same documents to DBPR. DBPR produced all the documents except the one for the period of March 1, 1995 until May 1, 1997. The Respondent provided enough information to raise a genuine question whether this document was lost by DBPR. It is concluded that it is as likely DBPR lost the record as it is the record was not sent. There was no additional documentation of the required continuing education submitted at hearing. Subsequent to the completion of the audit, the ECLB initiated a complaint with the Bureau of Consumer Services at DBPR. This complaint alleges that the Respondent failed to document required workers' compensation coverage or exemption for the entire audit period and failed to document required continuing education within the audit period. The Respondent was initially issued citations for resolution of the alleged violations herein. Each of these citations provided for a $500 administrative fine. The continuing education violation was documented as DBPR case number 2000-08338 and the workers' compensation violation was documented as 2000-05654. The Respondent chose to dispute these citations, and as a result, this matter was handled pursuant to the provisions of Section 455.225, Florida Statutes. The Respondent has failed to document completion of hours of board approved continuing education between September 1, 1996 and August 31, 1998. The Respondent failed to obtain any board approved continuing education between September 1, 1996 and August 31, 1998. In DBPR case number 2000-08338, the Petitioner incurred non-legal costs in the amount of $31.70. In DBPR case number 2000-05654, the Petitioner incurred non-legal costs in the amount of $42.47. However, this cost may not be recovered.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered imposing an administrative fine of $500 against the Respondent for Count II of the Amended Administrative Complaint. It is further recommended that the Respondent be required to pay the non-legal costs incurred by the Petitioner in both agency cases totaling $31.70. DONE AND ENTERED this 14th day of September, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 14th day of September, 2001. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 David Karably Post Office Box 12 Earleton, Florida 32631 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner, Jack Rubenfeld, resides at Apartment 201, Building 220, 10466 Sunrise Lake Boulevard, Sunrise, Florida. He leases the apartment from Sol Berman, who is the owner of the apartment. Berman is the person who made application for electric service at Apartment 201 with respondent, Florida Power and Light Company (FPL), and all electric bills are sent in Berman's name to the Sunrise address. However, under the Berman-Rubenfeld lease, Rubenfeld is required to pay all electric bills for service rendered by FPL to the apartment, and has done so since moving into the apartment in January, 1985. FPL is subject to the regulatory jurisdiction of the Florida Public Service Commission (FPSC or agency). As such, it is required to file a tariff with the agency setting forth its approved rates and charges, and pertinent regulations governing election service. Paragraph 7.3 of FPL Tariff Sheet 6.060 provides that: When service used is measured by meters, the company's accounts thereof shall be accepted and received at all times, places and counts as prima facie evidence of the quantity of electricity used by the customer unless it is established that the meter is not accurate within the limits specified by the commission. For the first seven months of 1985, Rubenfeld received bills from FPL reflecting the following meter readings, kilowatt hours (KWH) and charges: Service To Reading KWH Charges 01/22/85 08615 439 $42.66 02/21/85 09052 437 43.93 03/21/85 09372 320 33.95 04/22/85 09559 187 23.01 05/21/85 09943 384 40.28 06/20/85 10600 657 64.23 07/22/85 11202 602 59.41 All bills were timely paid by Rubenfeld. 4. On an undisclosed date in July, Rubenfeld and his wife, who are the only occupants of the apartment, left the State to visit New York City. While he was gone, he left the central air-conditioning unit on at 80 degrees, and his dehumidifier unit at an undisclosed setting. It is not known when Rubenfeld returned to Florida. On or about August 21, 1985, Rubenfeld's meter was read by an FPL meter reader who recorded a meter reading of 11,418 KWH and consumption during the prior thirty days of 216 KWH. A bill for $25.54 was thereafter sent to Rubenfeld who paid it on August 26, 1985. However, a subsequent examination of Rubenfeld's account, as discussed hereinafter, led FPL to believe that the meter reader misread a "1" for a "2" on the meter, and the correct meter reading should have been 12,418 (and not 11,418), or 1,000 KWH more than Rubenfeld's bill reflected. According to FPL testimony, such an error is not an unusual occurrence in its business. On or about September 20, 1985, a meter reader checked Rubenfeld's meter and noted a reading of 13,463, or a consumption of 2,045 K since the meter was last read on August 21. This equated to a bill of $201.12 for the thirty day consumption period. It is this bill that is in dispute. At the same time, FPL accounting personnel noted that Rubenfeld's consumption on the September 20 reading was outside the normal range and accordingly directed that Rubenfeld's meter be reread on September 30 to verify the accuracy of the September 20 reading. The check reading found the earlier reading to be correct. The bill was then mailed to Rubenfeld who understandably became irate and questioned its accuracy. After Rubenfeld complained to FPL personnel, a second check reading was performed on October 8, and a third on October 14. In addition, at Rubenfeld's request, FPL removed Rubenfeld's meter for testing on October 21 and found it to be within allowable guidelines set forth in Rule 25-6.52, Florida Administrative Code. The three check readings made on September 30, October 8 and October 14 were also used as a cross-check to determine whether Rubenfeld's consumption during that period of time was comparable to what he had supposedly used during August and September. The check reading on September 30, or ten days after the meter was last read on September 20, revealed consumption of 354 KWH during the ten day period, or 35.4 KWH per day. The second check reading on October 8 revealed that during the preceding eight day period, Rubenfeld had used 241 KWH, or 30.1 KWH per day. The final check reading on October 14 reflected that Rubenfeld has used 232 KWH over the preceding six days, or 38.6 KWH per day. By annualizing those amounts over a full thirty day period, which is comparable to the billing cycle, Rubenfeld's monthly consumption would have been approximately 1062, 903 and 1158 KWH, respectively, based upon his consumption during that twenty-four day period. Based upon the above checks and testing, FPL concluded that the meter reader had erred on the August 21 reading, and substantially understated Rubenfeld's actual consumption on that bill. However, in an effort to give Rubenfeld the benefit of the lower cost per KWH charged on the first 750 KWH used by a customer during each billing cycle, FPL rebilled the account over a two month period, thereby spreading the high consumption over two billing periods. Rubenfeld contended that he could not have used around 1000 KWH per month during July-August and August-September, particularly since he gas gone during a part of that time. However, he conceded he left two major appliances (air- conditioner and dehumidifier) operating while he was absent from the state, and uncontradicted testimony established that the apartment unit and appliances could have easily used the consumption in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a Final Order be entered finding that the electric bill in the amount of $201.00 was properly assessed and that it be paid by petitioner. DONE AND ORDERED this 15th day of October, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 15th day of October, 1986.
