The Issue Whether the Department of Transportation properly denied Petitioner’s permit application for a proposed outdoor advertising sign to be erected adjacent to US 98, 0.817 miles west of State Road 87, in Santa Rosa County, Florida, pursuant to Chapter 479, Florida Statutes.
Findings Of Fact On April 3, 1998, Lamar submitted an application for new sign permits for a proposed outdoor advertising sign along US Highway 98, 0.817 miles west of State Road 87 in Navarre, Santa Rosa County, Florida (new permits) to DOT. The new permits were to be located within 2000 feet of existing permitted signs for which Lamar already possessed permits (the existing permits). The existing permit numbers were AE682-6 and BL256-35. Santa Rosa County’s Land Development Code Section 8.07.00 provides that no off-premise advertising sign, such as involved here, can be located within 2000 feet of any other off-premise sign on the same side of the street right-of- way. Since Lamar's existing permitted sign and the proposed location of the new permitted sign was within 2000 feet of each other, Lamar wished to cancel the existing permits conditioned upon the approval of the new permits. The practice is known as conditional cancellation. Prior to and during 1998, DOT had an established non- rule policy of conditional cancellation for existing sign permits. Conditional cancellation could occur when applying for new permits that would potentially conflict with existing permits. An applicant could simultaneously submit a cancellation certification for the existing permits together with the application for new permits. The old permits would not be canceled until new permits were issued. The exact process for requesting a conditional cancellation was not shown to be uniform throughout the state. However, the policy of allowing conditional cancellations to be made by permittees was accepted statewide. The policy and process for conditional cancellation are now codified in Rule 14-10.004, Florida Administrative Code, after the application in this case had been processed. In this case and in conjunction with the submission of Lamar's new permit application, Lamar submitted a copy of the cancellation certification for its existing permitted signs to the regional District Three DOT office in Chipley, together with its application for the new permits. Simultaneously, on April 3, 1998, Lamar submitted the original cancellation certification to the central office of DOT. The instructions on the certification of cancellation require the cancellation form to be submitted to the Tallahassee office of DOT. Neither the cancellation form nor letter from Lamar indicated that the cancellation was conditional. There was no place on the form to make such an indication. Lamar had been following the above-filing practice when requesting conditional cancellation since 1995. Because of its practice Lamar believed that it had properly notified DOT that cancellation of its existing permits was conditioned upon approval of its application for new permits. Lamar never considered that one office of DOT might not know what occurred at another office of DOT or that one office of DOT might not communicate with another office of DOT. On the other hand, the regional office of DOT in Chipley only recognized that an applicant had requested a conditional cancellation of existing permits when the original and not a copy of the cancellation form was submitted with the application for new permits. Lamar was unaware of the distinction between the filing of an original cancellation form with its application and the filing of a copy of the cancellation form with its application. More importantly, this distinction was not a rule and does not appear to have been communicated to anyone save the officials at the Chipley office of DOT. Consequently, Lamar relied on its established practice when seeking a conditional cancellation. A practice that DOT had recognized on earlier conditional cancellations by Lamar. Lamar reasonably believed, based on its previous experience with the policy of conditional cancellation, that existing permits would not be cancelled until the new permits were granted. Shortly after the filing of Lamar’s application, District Three returned Lamar's permit application without action because it was incomplete. The application was not considered filed by DOT because it was incomplete and the entire application package, including the copy of the cancellation form was returned to Lamar. The application was not logged into the Department’s computer. The Chipley office, even though it knew the old permits were to be cancelled, did not notify the Tallahassee office of the return of Lamar’s application or the lack of approval of that application. On April 7, 1998, the Tallahassee office of DOT processed the cancellation form it had received from Lamar on the existing permits. The existing permits were cancelled and the cancellation was logged into the Department’s computer. Because the Department did not follow its policy of conditional cancellation on which Lamar had relied for a number of years and the Department had knowledge of Lamar’s application for new permits which clearly conflicted with the cancelled permits, the existing permits should not have been cancelled and should have remained in effect since the application had not been approved by DOT. The fact that the knowledge resided in different offices of DOT is irrelevant. On April 10, 1998, Bill Salter Advertising (Salter) submitted an application for sign permits. The proposed sign would be located 0.36 miles west of State Road 87 on the same side of US 98 as the existing permit location for Lamar. The Salter permits would be within 2000 feet of Lamar’s existing permits and not be approved by DOT if the existing Lamar permits were still in effect. On May 6, 1998, Lamar resubmitted its complete application for the new permits. Upon inspection of the site for Lamar’s new permits, it was discovered that a spacing conflict existed with the Bill Salter application site. On May 10, 1998, DOT tentatively denied Salter’s application for incorrect information on the sketch of the site it had submitted with its application. On May 28, 1998, Salter amended its application with a corrected site sketch. By letter dated June 5, 1998 the Department advised Lamar that its application would be held pending resolution of the prior application filed by Salter. On June 26, 1998, DOT granted Salter’s application. On July 6, 1998, permits BU595-55 and BU596-55 were issued to Salter. On August 26, 1998, DOT denied Lamar’s applications. The denial was based on Section 479.15, Florida Statutes, which prohibits DOT from granting a permit which would conflict with a county ordinance such as the Santa Rosa County Land Development Code sign spacing requirements. No other basis for denial of the subject permits exists.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Transportation reinstate the Lamar Advertising Company’s existing permits AE682-6 and BL256-35. DONE AND ENTERED this 7th day of October, 1999, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 7th day of October, 1999. COPIES FURNISHED: G. R. Mead, II, Esquire Clark, Partington, Hart, Larry Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Pensacola, Florida 32591-3010 Sheauching Yu, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The central issue in this case is whether Respondent's yacht and ship salesman's license should be disciplined for the reasons set forth in the notice of intent to revoke license dated June 14, 1994.
Findings Of Fact The Department is the state agency charged with the responsibility to regulate persons pursuant to Chapter 326, Florida Statutes. On April 30, 1993, the Department received an application for a yacht and ship broker or salesman license (the application) submitted by Respondent, Thomas I. Davis, Jr. The application provided, in pertinent part: LICENSES AND CERTIFICATES: Have you now or have you ever been licensed or certified in any other profession such as real estate, insurance, or securities in Florida or any other state? Yes No If you answered yes, please describe: Profession License # First Obtained Status of License (a)Has any license, certification, registration or permit to practice any regulated profession or occupation been revoked, annulled or suspended in this or any other state, or is any proceeding now pending? Yes No (b) Have you ever resigned or withdrawn from, or surrendered any license, registration or permit to practice any regulated profession, occupation or vocation which such charges were pending? Yes No If your answer to questions (a) or (b) is Yes, attach a complete, signed statement giving the name and address of the officer, board, commission, court or governmental agency or department before whom the matter was, or is now, pending and give the nature of the charges and relate the facts. In response to the application questions identified above, Respondent entered the following answers: "No" as to questions 11, 12(a), and 12(b). As a result of the foregoing, Respondent was issued a yacht and ship salesman's license on May 10, 1993. Thereafter, the Department learned that Respondent had been censured by the NASD. In a decision entered by that body accepting Respondent's offer of settlement, Respondent was given a censure, a fine of $20,000.00, and a suspension in all capacities from association with any member for a period of two (2) years with the requirement that at the conclusion of such suspension that he requalify by examination for any and all licenses with the Association. The censure also provided a specific payment plan for the $20,000 fine which was assessed. To date, Respondent has not complied with that provision of the settlement. From 1973 through 1991, Respondent was registered with several different firms pursuant to Chapter 517, Florida Statutes. Additionally, Respondent has been licensed to sell securities in the following states: California, Colorado, Connecticut, Delaware, Idaho, Illinois, Louisiana, Maine, Maryland, Nevada, and New York. Respondent has also been licensed in Washington, D.C. and Puerto Rico. Respondent has been a licensed stock broker with the Securities and Exchange Commission since 1971. Respondent answered questions 11 and 12 (a) and (b) falsely. Respondent knew he was licensed to sell securities and knew of the sanction from the NASD at all times material to the entry of the answers. Pursuant to Rule 61B-60.003, when the Department receives an application for licensure which is in the acceptable form, it is required to issue a temporary license. Had the Respondent correctly answered questions 11 and 12 on the application, the Department would not have issued Respondent's license.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, enter a final order dismissing Respondent's challenge to the notice of intent and revoking his license. DONE AND RECOMMENDED this 13th day of March, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4258 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 9, 11, 13, and 15 through 17 are accepted. Paragraph 10 is rejected as repetitive. Except as to findings reached above, paragraphs 12 and 14 are rejected as irrelevant. It is found that Respondent falsely answered question 11. Rulings on the proposed findings of fact submitted by the Respondent: Respondent's proposed findings of fact are rejected as they do not comply with Rule 60Q-2.031(3), Florida Administrative Code. However, to the extent findings do not conflict with the findings of fact above, they have been accepted. Such proposed findings of fact are paragraphs: 1, 7 and 8. The remaining paragraphs are rejected as they are not supported by the record cited (none), irrelevant, argument, or contrary to the weight of the credible evidence. COPIES FURNISHED: Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 E. Harper Field Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 David M. Goldstein LAW OFFICE OF DAVID M. GOLDSTEIN 100 S.E. 2nd Street Suite 2750 International Place Miami, Florida 33131
Findings Of Fact Petitioner, Sharon Adkins, filed application with Respondent for registration as an electronic repair dealer, together with the forty-five dollar registration fee, in August, 1978. A second application was filed in September, 1978 which reflected that Petitioner had commenced business under the name "A Consumer Tip" at Ft. Lauderdale, Florida on August 23, 1978. By letter of October 24, 1978, Petitioner was advised by Respondent that her application was denied. The stated reason for denial was that the name "A Consumer Tip" was already known as a title for public service advertising in the yellow pages of the telephone directory in her community, and that therefore, registration could not be validated for a name which was misleading within the meaning of Rule 7B- 2.08 Florida Administrative Code, and within the meaning of Section 468.151, Florida Statutes. Petitioner thereafter requested an administrative hearing on the denial of her registration (testimony of Petitioner, Exhibits 2-4). The advertising pages of the Southern Bell Telephone Company's telephone directory for Fort Lauderdale for the years 1978-79 and 1979-80 reflect a listing of Petitioner's business name "A Consumer Tip", address, and telephone number. At various places throughout the directory informational items appear which are directed to users of the classified section. A number of these items are headed by the words "a consumer tip" which offer the reader information concerning such subjects as wedding anniversaries, tornado safety rules, and ways to save energy. (Exhibit 1)
Recommendation That Petitioner's application for registration as an electronic repair dealer be approved. DONE and ENTERED this 27 day of July, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David M. Maloney Staff Attorney Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Robert D. Hurth, P.A. 2425 East Commercial Blvd. Marwayne Office Plaza, Suite 101 Ft. Lauderdale, Florida 33308
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Cassandra Cook, has filed a claim against the bond for $349.50 alleging that Passport failed to perform on certain contracted services. On April 20, 1989, petitioner received a solicitation telephone call from Global Travel inviting her to purchase a travel certificate entitling her and a companion to a five-day, four-night cruise to the Bahamas. Global Travel was a Tennessee telemarketeer selling travel certificates on behalf of Passport. Petitioner agreed to purchase the certificate and authorized a $349.50 charge on her credit card payable to Global Travel. Thereafter, petitioner received her travel certificate, brochure and video, all carrying the name, address and logo of Passport. In order to use the travel certificate, it was necessary for petitioner to fill out the reservation form with requested dates and return the form, certificate, and a deposit to Passport. Before doing so, petitioner repeatedly attempted to telephone Passport's offices in Daytona Beach to obtain additional information and to inquire about the availability of certain travel dates but was never able to speak to anyone because of busy lines. She then requested a refund of her money and simultaneously filed a complaint with the Department in January 1990. In responding to the complaint in February 1990, Passport denied liability on the ground petitioner was obligated to "deal directly with the company that has charged her credit card as that is who has her money." By then, however, Global Travel was out of business. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $349.50 from the bond. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1994. COPIES FURNISHED: Cassandra Cook 3818 Firdrona Drive, N. W. Gig Harbor, Washington 98332 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue What if any, disciplinary action may be taken against Respondent based on alleged violations of Florida Statutes Section 489.531(1) (practicing electrical contracting or advertising one's self or business organization as available to engage in electrical or alarm system contracting without being certified or registered), and Section 455.227(1)(q) (engaging in the practice of unlicensed electrical contracting after previously being issued an Order to Cease and Desist from the unlicensed practice of electrical contracting.)
Findings Of Fact At all times material hereto, Respondent was not licensed nor had he ever been licensed to engage in electrical contracting in the State of Florida. Mr. George Hammond lives in Inverness, Florida in a single family dwelling with a detached garage. The house is serviced with a water well and electrical pump. On July 25, 2006, Mr. Hammond notified a long-time friend, Dennis Himmel that he had problems with his well and could not get water into his home. Mr. Himmel temporarily ran a wire between the well and garage so Mr. Hammond could get water, and suggested Mr. Hammond hire an electrician to do the permanent work. A few days later, Mr. Hammond told his friend, Craig Zeedick, that his well had been hit by lightening and someone was fixing it. Mr. Zeedick went to Mr. Hammond's house and observed Respondent kneeling down and making an electrical connection with the junction box. Respondent had stripped off the wire connections and made the wire nut connection. A boy was with Respondent, and the boy was burying an electrical cable to the well. The cable in the ground had no tubing or protection around it. At Mr. Hammond's request, Mr. Zeedick counted out approximately $947.00 in cash to Respondent for the electrical work. Sometime in August 2006, Mr. Himmel observed the work done at Mr. Hammond's home. He phoned Respondent to complain because the wire from the garage to the well was buried only four inches underground with no conduit (protective covering) over the wire into the garage. Respondent returned and covered the wire with conduit but then the pump did not work. Later, Respondent corrected the wire box connection, blaming the problems on Mr. Himmel. At some point in these machinations, Respondent succeeded in flooding Mr. Hammond's garage with water. Amy Becker, a license inspector with the Citrus County Building Division performed an investigation of the electrical contracting work done by Respondent at Mr. Hammond's residence, and took photographs. At that time, Mr. Hammond pointed out electrical wiring running from the well to the garage, and Ms. Becker observed there was a conduit and some plastic tubing. Ms. Becker then checked Respondent's licensing status, and found him to be unlicensed as an electrical contractor by either the State or Citrus County. She notified Petitioner, as the State licensing agency. On December 13, 2006, Ms. Becker cited Respondent for unlicensed contracting in wiring the water well pump at Mr. Hammond's residence. Respondent appeared before the County Board on December 13, 2006, and signed the citation signifying he wanted an administrative hearing. On January 24, 2007, Respondent, represented by counsel, was present for testimony before the Board, and the Board upheld the citation against Respondent. Respondent paid the citation on May 29, 2007. Respondent admitted to Petitioner's Investigator, Sharon Philman, during a telephone interview, that he had run wire from Mr. Hammond's garage to the well pump, for which work he charged approximately $940.00. On or about February 13, 2007, Petitioner issued a Cease and Desist Order against Respondent. The instant complaint/case followed. Petitioner put on no evidence concerning a prior 2005 case against Respondent.1/
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order: Finding Respondent guilty of having violated Section 489.531(1)(a), Florida Statutes, on one occasion, and assessing Respondent an administrative fine in the amount of $2,500.00 therefor, as permitted by Section 455.228(2), Florida Statutes. Finding Respondent not guilty of having violated Section 455.227(1)(q) as pled in Count II of the Administrative Complaint herein. DONE AND ENTERED this 19th day of September, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2007.
