Conclusions . This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Linzie F. Bogan, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal of Intent to Establish Dealership, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Power Group International, LLC, and Reliable Power Equipment, LLC d/b/a Coastal Carts to sell low-speed vehicles manufactured by Tomberlin Automotive Group, (TOMB) at 16277 South Tamiami Trail, Suite A, Fort Myers, Florida 33908. Filed September 6, 2012 2:11 PM Division of Administrative Hearings “ DONE AND ORDERED this C day of September, 2012, in Tallahassee, Leon County, Florida. —m P00 J ulie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division of Motorist Services this G day of September, 2012. Webi: Viranok AO Mad — Nalini Vinayak, Deater Hicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/wev Copies furnished: Elinore Hollingsworth Power Group International, LLC 3123 Washington Road Augusta, Georgia 30907 Jay Stewart A Plus Carts and Parts 16100 San Carlos Boulevard Fort Myers, Florida 33908 Donald B. Imbus Reliable Power Equipment, LLC 16277 South Tamiami Trail, Suite A Fort Myers, Florida 33908 Linzie F. Bogan Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue Are the February 13, 2014, letters of Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), requiring totalisator reports to "identify the Florida [permitholder] in reports as both host and guest when applicable," statements that amount to a rule, as defined in section 120.52(16), Florida Statutes (2013).1/
Findings Of Fact Florida permits and regulates betting on greyhound racing,2/ jai alai games,3/ quarter horse racing,4/ and harness racing.5/ The Division is responsible for administration of Florida's statutes and rules governing this betting. JKC and OPKC are separate, individually permitted facilities. Jacksonville Greyhound Racing owns and operates both the JKC and the OPKC. It is not, however, a party to this proceeding. The betting system is a pari-mutuel system. This "means a system of betting on races or games in which the winners divide the total amount bet, after deducting management expenses and taxes, in proportion to the sums they have wagered individually and with regard to the odds assigned to particular outcomes."6/ Each race, contest, or game is an "event."7/ The aggregate wagers called "contributions" to pari-mutuel pools are labeled "handle." § 550.002(13), Fla. Stat. An "intertrack wager" is "a particular form of pari-mutuel wagering in which wagers are accepted at a permitted, in-state track, fronton, or pari-mutuel facility on a race or game transmitted from and performed live at, or simulcast signal rebroadcast from another in-state pari-mutuel facility."8/ The JKC offers intertrack wagering at its permitted facility located in Jacksonville, Florida. It does not offer live events. The OPKC offers intertrack wagering and wagering on live events conducted at its permitted facility in Orange Park. The Racetracks are host tracks when they transmit live greyhound racing to other in-state and out-of-state facilities for off-track wagers.9/ They are guest tracks when wagers are made at their separate permitted locations on pari-mutuel races or games conducted at third-party facilities.10/ Florida statutes and the Division's rules require detailed reports from permitholders to the Division and other permitholders, including tables of wagers, pool data, and winnings.11/ These reports are generated by "totalisators." A totalisator is "the computer system used to accumulate wagers, record sales, calculate payoffs, and display wagering data on a display device that is located at a pari-mutuel facility."12/ The Division's Form DBPR-PMW-3570 requires host permitholders to report intertrack wagering "handle" by guest on a monthly basis. The host permitholders must sign and attest to the accuracy of the information submitted in the form. Also, Florida Administrative Code Rule 61D-7.023(2) requires generation of reports for each pool within each contest to be printed immediately after the official order of finish is declared. On March 9, 2012, the Division issued a letter to AmTote International ("AmTote"), a licensed totalisator company, and copied Jacksonville Greyhound Racing, notifying AmTote that Florida permitholders and the Division would need a breakdown of the handle of the Racetracks in order to pay appropriate purses, taxes, or other liabilities. It sent a similar letter to other totalisator companies. This was an effort to be accommodating and flexible. The letter concluded: "Please continue to provide handle information broken down by source, which is required by rule to all those in the state of Florida who have been users of that information in the past." The Racetracks rely upon AmTote to provide their totalisator services. Between March 2012 and March 2014, AmTote commingled the Racetracks' wagering data into a single "community," reporting all wagering as coming from the OPKC in order to reduce interface fees paid for the totalisator service. The guest track wagering data and reports exchanged with the other totalisator companies from the Racetracks show up on the AmTote settlement files as OPKC. The reports do not differentiate between wagers made at each of the Racetracks. Before March 1, 2012, AmTote segregated wagering data as coming from either JKC or OPKC. During the two years reported by the Racetracks as a single community, the Racetracks separately provided Florida host tracks a supplemental report breaking down the sources within the common community. The Racetracks provided these supplemental reports--via email or other means--to assist Florida host tracks with reporting requirements. They did not provide them simultaneously with the other reports and data. There were frequently errors that had to be identified and corrected. In an effort to be flexible and work with the Racetracks, the Division tolerated this method of reporting for two years. But it created problems for both the Division and for the other permitholders in the state. On February 13, 2014, the Division prepared and issued correspondence to AmTote, as well as the two other Florida totalisator companies, announcing that it intended to require proper reporting of the data required by rule, including reports of each permitholder. The letter states: This letter is to address the issue of proper and complete identification of each individual permitholder in totalisator reports. Rule 61D-7.024(1), Florida Administrative Code, requires all Florida pari-mutuel permitholders to use an electronically operated totalisator. Rule 61D-7.023(9), F.A.C. states in part, ". . . Each report shall include the permitholder's name . . .," and Rule 61D-7.024(4), F.A.C. states in part, ". . . reports shall be kept logically separate . . . ." Further, Rule 61D-7.023(1), F.A.C. states, "The totalisator licensee shall be responsible for the correctness of all tote produced mutual accounting reports. " In accordance with Florida Administrative Code, the division requires each permitholder to be properly and uniquely identified by totalisator reports provided to the division and to the permitholders. In addition, the totalisators are responsible for the correctness of all tote produced mutual accounting reports. Reports provided after February 28, 2014 must properly identify the Florida Permitholder in reports as both host and guest when applicable. Improper identification of permitholders will be considered a violation of the Florida Administrative Code. On March 11, 2014, AmTote began segregating wagering data from the Racetracks in compliance with the February 13, 2014, letter. The Racetracks will incur additional financial costs if AmTote ends the reporting of all wagering data as coming from OPKC for purposes of reports provided to other totalisator companies licensed in Florida and begins segregating their wagering data by individual permitholders. These costs stem from additional interface fees incurred outside the regulatory jurisdiction of Florida. The only evidence of these costs is the testimony of Matthew Kroetz, vice-president of Operations for Jacksonville Greyhound Racing. The testimony of Mr. Kroetz about the cost of the required change is confusing because he mingles assumed costs for a third closed track as if it were reactivated and operational. Bayard Raceways is that track. The Racetracks' parent company owns it. But the likelihood and timing of that reactivation is speculative. In addition, Bayard is not a party to this proceeding. Neither is the parent company. Mr. Kroetz' testimony establishes that the current cost for the two petitioners is a total of $1,500 per month. He projects that costs for reporting, as the letter requires, would be $4,500 per month for the two Petitioners and the track that may reopen in the future. That testimony is unrebutted and consistent with his testimony that the recurring fees for all three tracks would total over $50,000 annually. It is accepted as accurate. But the $3,000 increase from $1,500 to $4,500 per month is not due solely to the reporting requirement. It is also due to lumping in the non-active track. The evidence does not support including that track, the opening of which is speculative. The monthly fee for the two operating tracks is $1,500 divided by two or $750. Subtracting that, as the current cost for an existing track, from the $3,000 increase, lowers the estimated increase to $2,250. Dividing that by three gives the increased monthly cost per track, or $750 per track. This results in the projected annual cost increase for each of the Racetracks of $9,000. Although Mr. Kroetz testified in summary that the changes would result in an increased cost of "about a thousand dollars per month per facility," that testimony is not persuasive. It is inconsistent with the more detailed testimony relied upon above and would require the improbable and unsupported conclusion that the monthly increase would be more than the existing fees.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Lisa Shearer Nelson, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent's notice of withdrawal. Accordingly, it is hereby ORDERED that this case is CLOSED and a license may be issued to Gas Sippers, LLC to sell motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 6480 20th Street, #106, Vero Beach (Indian River County), Florida 32966 upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed October 15, 2009 3:39 PM Division of Administrative Hearings. DONE AND ORDERED this ;J? ay of October, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this _/;JJJ day of October, 2009. . 0..- .t.dmlnlstrallo NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: John Dikov Valley Scooters, LLC 1687 Blythe Island Drive Brunswick, Georgia 31523 2
The Issue The issue presented is whether Respondent terminated Petitioner's employment due to Petitioner's disability.
Findings Of Fact Respondent Ryan Companies is in the business of site development, including underground utility work. Ryan employed Petitioner in September 1995 to operate a front-end loader for Ryan's pipe division. A front-end loader is a heavy machine used to carry heavy materials in a front-end bucket. Petitioner's duties involved unloading materials with the front- end loader and laying the materials out with the loader in an area adjacent to where the piping crews were working. At the time of his employment, Petitioner wore a brace on his left leg as a result of complications from back surgery which Petitioner had undergone approximately ten years before his employment by Ryan. Petitioner disclosed on his written application that he wore the brace on his left leg but that he needed no reasonable accommodation to assist him in performing the essential functions of his job. Petitioner was able to climb in and out of the cab of the front-end loader without assistance. He also drove his own vehicle to and from work. His only restriction on driving was that he was not able to operate a vehicle which had a clutch. Although Petitioner asserts that he was disabled at the time he was employed by Ryan, Petitioner did not represent himself to be disabled to Ryan's other employees. Further, other Ryan personnel did not perceive him to be disabled. They only noticed that Petitioner walked stiff-legged with a limp, using a cane. Petitioner admits that he was able to perform his duties. Although Petitioner was not able to lift heavy objects, his duties did not require him to do so, and no evidence was offered that any inability to lift heavy objects was related to his left leg. Petitioner's position only required him to drive the front-end loader and move material for the pipe crews. Although Petitioner successfully completed his probationary period with Ryan, there were problems with his performance. On more than one occasion, Petitioner destroyed materials and knocked down grade stakes while operating his front-end loader. Petitioner's supervisor told him on more than one occasion that if it happened again, he would be replaced. Replacing the materials and having the survey crew return to the job site to re-position stakes cost Ryan money. However, Petitioner's supervisor was also concerned with the safety of the men laying pipe as a result of Petitioner's driving skills. It was ultimately decided by Ryan supervisory personnel that it was too risky to allow Petitioner to continue to operate a front-end loader. Rather than terminating Petitioner for inadequate performance, his supervisor first inquired of other supervisors if any of them could give Petitioner a different position in the company. Another supervisor said he had a position for Petitioner. Petitioner was transferred to the position of "ticket writer," in which Petitioner was to keep track of the material being trucked out from Ryan's haul pit at Winston Trails. Petitioner was required to write down the amount of material being hauled by each truck and was instructed in proper procedure by his new supervisor. His supervisor wrote out a sample for Petitioner to follow and filled out the first few tickets to show Petitioner what to do. Each time a new company came to the haul pit, Petitioner's supervisor wrote out a new form for Petitioner to follow. The amount of information to be recorded on the ticket was minimal: the name of the company taking the material, the date, the job site, and how many yards of material were being taken. The driver of the truck then signed the ticket. Petitioner was capable of performing his duties as a ticket writer. He never advised anyone that he could not read or write well enough. Rather, Petitioner admits he was capable of writing the tickets. However, Petitioner was careless in completing the tickets accurately, sometimes writing the name of the wrong company or incorrectly noting whether the truck was hauling 16 yards or 18 yards. He also put tickets in the wrong piles, causing the wrong customer to be billed. The tickets represent a bill of sale, and Petitioner was advised by his supervisor more than once that it was important that Petitioner complete the tickets more accurately. Petitioner was advised that if he continued to be careless, he would be terminated. Petitioner was terminated in August 1996 for continuing to write incorrect information on the truck loading tickets. The brace on Petitioner's left leg had no impact on Petitioner's ability to write tickets. Although Petitioner's representative appeared to argue at the final hearing that Petitioner cannot read or write, Petitioner disagrees with that suggestion. Petitioner was able to read maps and bills of lading when he had previously worked as a truck driver. He was also able to pass the Coast Guard four-hour written examination for a captain's license. He was also able to write for his daughter's use in his litigation a detailed report of his experiences at Ryan from the time he was hired until he was terminated. Petitioner had worked as a charter boat captain for about ten years prior to going to work for Ryan. The brace he wore on his left leg did not impede his ability to operate a charter boat in the open ocean, regardless of rough weather conditions. Since being terminated by Ryan, Petitioner has been employed as a security guard and does not have any problem fulfilling his duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent Ryan Companies not guilty of terminating Petitioner due to his disability and dismissing Petitioner's complaint filed in this cause. DONE AND ENTERED this 22nd day of March, 2002, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 22nd day of March, 2002. COPIES FURNISHED: Deborah Rogers, Qualified Representative 445 Australian Circle Lake Park, Florida 33403 Paul M. Woodson, Esquire Houston & Shahady, P.A. 316 Northeast Fourth Street Fort Lauderdale, Florida 33301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Violet D. Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Did the Respondents commit the offenses alleged in the Administrative Complaint, and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida responsible for the enforcement of the Florida Motor Vehicle Repair Act (Sections 559.901-559.9221, Florida Statutes). At all times pertinent to this proceeding, Respondents were engaged in the business of motor vehicle repair. At all times pertinent to this proceeding, Allen J. Hobbs (Hobbs), was employed by the Department as a Law Enforcement Investigator. Hobbs became familiar with Respondents, Brian Waterman, John Waterman, and Transmission Mart, Inc., through complaints sent to the Department's office in Polk County, Florida, from the Department's office in Tallahassee, Florida Hobbs opened an investigation concerning Respondents on January 22, 1999. The investigation involved "preparing a vehicle" by taking the transmission apart to make sure the transmission was working properly and marking all parts of a transmission with an identifying number. The purpose of marking the parts was to determine if a part had in fact been replaced when such was indicated on Respondents' repair bills. On February 11, 1999, while working undercover, Joanne M. Taylor (Taylor), Law Enforcement Officer with the Department, presented a 1992 Buick Skylark, which had previously been prepared by having the transmission checked and the transmission parts marked with the number 04, to Transmission Mart at 3550 Recker Highway, Winter Haven, Florida. Taylor had a coupon for a transmission service. A man, with a name patch of "John" on his shirt, advised Taylor that he could service the transmission. Upon being advised that the transmission service had been completed, Taylor paid the bill and received an invoice for the service, which indicated that a new filter had been installed. Taylor left Transmission Mart and returned the 1992 Buick Skylark to Hobbs. On February 15, 1999, John Denny (Denny), the Department's mechanic who had originally marked the transmission parts, inspected the transmission along with Hobbs and found that the filter marked with the number 04 was still in place and had not been replaced by Transmission Mart as indicated on the invoice. Other than the time during which the vehicle was being serviced at Transmission Mart, the vehicle was under the control of the Department's employees. On February 25, 1999, while working undercover, M. E. (Cookie) Sikes (Sikes), Law Enforcement Officer with the Department, presented a white 1990 Oldsmobile Eighty-Eight, which had previously been prepared by having the transmission checked and the transmission parts marked with the letter T and the number 5 (T5), to Transmission Mart at 3550 Recker Highway, Winter Haven, Florida. Sikes had a discount coupon for a transmission service. The Service Manager named Brian, advised Sikes that it would take approximately one and one- half hours to service. Sikes had someone pick her up and later returned to pickup the vehicle. Sikes was given an invoice that indicated that she was being charged $15.00 for a new filter, with a total amount owed of $35.99. However, due to the unavailability of change, Sikes' bill was reduced to $30.00. Sikes returned the car to the Division of Plant Industry Office where it was secured. On March 1, 1999, the vehicle in question was transported to the Division of Forestry Vehicle Repair Shop in Brooksville, Florida. On March 16, 1999, Denny, with Hobbs observing, removed the transmission from the vehicle and inspected the filter to determine if Transmission Mart had in fact replaced the filter that was in the vehicle when presented to Transmission Mart on February 25, 1999. Upon examination, both Denny and Hobbs observed that the filter containing the identifying mark T5 was still in the transmission. Although Sikes paid for a new filter, Transmission Mart did not install a new filter in the vehicle presented by Sikes. Other than the time the Oldsmobile Eighty-Eight was being serviced by Transmission Mart, the vehicle was under the control of the Department's employees. On August 16, 1999, Hobbs drove a black 1991 Ford Taurus automobile to the Division of Forestry Motor Vehicle Repair Shop in Brooksville, Florida, for the purpose of having the transmission checked by John Denny, Forestry Mechanic, to assure that the vehicle's transmission was functioning properly. After determining that the vehicle's transmission was functioning properly, Denny, with Hobbs observing, removed the transmission fluid pan and the transmission filter. Denny installed a new fluid pan gasket and fluid filter. The fluid filter was marked with the letter O and the number 3 (O3), which was the code used by Denny to previously identify the other parts of the transmission. On August 19, 1999, Paula R. Wheeler (Wheeler), Law Enforcement Officer with the Department, while working undercover, presented the black 1991 Ford Taurus for servicing. Wheeler spoke with Brian Waterman. After a few minutes, Wheeler was advised by Brian Waterman that they were unable to service the transmission due some problem with the transmission. After some discussion, Wheeler authorized the expenditure of $225.00 for the repair of the transmission. On August 20, 1999, when Wheeler called to inquire about the transmission, she was informed that there were additional problems and that the estimate for repair was now $1,849.60. Wheeler agreed to this new estimate for repair. Although Wheeler was advised by Waterman that the vehicle would be ready on Monday, August 23, 1999, the vehicle was not ready until Wednesday, August 25, 1999. On Wednesday, August 25, 1999, Wheeler paid Transmission Mart $1,972.29 for the repair of the transmission and received an invoice for the repair. The invoice indicated that Wheeler was charged for the installation of a Transmission Mart remanufactured transmission with an exchange recondition torque converter using the following parts: (a) 1-OH Kit with steels; (b) 1- Bushing Kit; (c) 1- Reconditioned Valve Body; (d) 1- Reconditioned front Pump; (e) 1-Torque Converter; (f) 1- Set of Snap Rings; and (g) a filter. After picking the Ford Taurus up from Transmission Mart on August 25, 1999, Wheeler proceeded to the Department's office in Winter Haven, Florida, where the vehicle was loaded on a trailer and turned over to Hobbs. On August 31, 1999, Steve Merrick, Investigator for the Department, transported the vehicle by trailer to the Division of Forestry Repair Shop in Brooksville, Florida, so that Denny could disassemble the transmission for the purpose of determining if Transmission Mart had performed the work and replaced the parts indicated on the invoice presented to Wheeler. Hobbs videotaped the disassembling of the transmission on August 31, 1999, and September 1, 1999. Upon disassembling the transmission, it was determined that the front pump and both parts of the valve body had not been replaced in that they still had the code O3 on them, which had been placed there earlier by Denny. The forward, intermediate, and rear clutch was inspected, and it was determined that 11 steels and 7 friction plates had not been replaced by Transmission Mart as indicated on the invoice in that these parts still bore the code O3 which had been previously put there by Denny. The rear clutch was removed and upon inspection it was determined that four steels had not been replaced as indicated on the invoice in that they still bore the code O3, which had been placed there earlier by Denny. At all times pertinent herein, the Ford Taurus was in the possession of, or under the control of, Department employees. There is no evidence that Respondents, on May 10, 1999, knowingly and falsely charged Bob Bloomquist for the removal, rebuilding, and reinstallation of a transmission as alleged in paragraph 11 of the Administrative Complaint. Likewise, there is no evidence that Bob Bloomquist had any contact with Respondents until sometime in late April or early May 2000. The Administrative Complaint contains no allegation charging Respondents with having falsely stated that they were members of the Automatic Transmission Rebuilders Association and thereby an authorized warranty dealer. On November 10, 1999, Judi Sylvia (Sylvia) presented her 1995 Ford Windstar Van (Van) to Transmission Mart for a service check of her transmission. The purpose of the service check was preventive maintenance because the transmission had a slight hesitation in reverse. Brian Waterman initially inspected the Van and concluded that there was a problem. Brian Waterman advised Sylvia that he would need to remove and dismantle the transmission in order to make an internal inspection. The cost for this internal inspection would be $225.00. However, if major repairs were needed, the $225.00 would apply toward that bill. Sylvia gave her approval for the cost of the internal inspection. After the internal inspection, Brian Waterman advised Sylvia that it would cost $500.00 to repair but changed that estimate to $750.00, which Sylvia agreed to pay because she was not knowledgeable about transmission repair and did not understand what she was being told by Brian Waterman. Subsequently, the estimate went to $750.00 and then to $1,749.00. Not having any choice, Sylvia agreed to the repairs. The invoice given to Sylvia by Transmission Mart indicated that a Transmission Mart Reconditioned Transmission with a full Life Time Warranty had been installed in the Van. The invoice indicated that warranty did not cover towing. However, the newspaper ad, which included the coupon, indicated that there was free towing with internal repairs. Sylvia was charged for internal repairs. Transmission Mart falsely charged Sylvia for towing. The Van stayed in the shop at Transmission Mart for a large part of the time between November 10, 1999, and December 22, 1999. Sylvia continued to experience problems with the transmission during this period. Eventually, Sylvia paid Transmission Mart a total of $1,981.50, which included towing charges. During the time the Van was being allegedly repaired at Transmission Mart, Brian Waterman told Sylvia that the Van was at Rowan Lincoln Mercury being repaired. However, the van was never at Rowan Lincoln Mercury being repaired during the time it was at Transmission Mart. On December 22, 1999, Sylvia retrieved her van from Transmission Mart and transported the Van to Aamco for repairs. Sylvia paid $1,757.48 for the repairs made by Aamco to the Van's transmission. Transmission Mart falsely charged Judi Sylvia for the removal, rebuilding, and installation of a Transmission Mart Reconditioned Transmission. There is insufficient evidence to establish facts to show that Transmission Mart falsely charged Raymond D. Skipper for the removal, rebuilding, and reinstallation of a transmission in Skipper's 1994 Dodge Caravan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Department of Agriculture and Consumer Services enter a final order finding Respondents guilty of: (a) violating Section 559.920(3), Florida Statutes, on four separate occasions as alleged in paragraphs 6, 7, 9, and 12 of the Administrative Complaint; (b) violating Section 559.920(4), Florida Statutes, on one occasion as alleged in Paragraph 8 of the Administrative Complaint; (c) violating Section 559.920(8), Florida Statutes, on one occasion as alleged in paragraph 14 of the Administrative Complaint; and (d) violating Section 559.920(9), Florida Statutes, on one occasion a alleged in paragraph 13 of the Administrative Complaint. It is further recommended that an administrative fine of $1,000.00 for each violation be imposed for a total administrative fine of $7,000.00. It is further recommended that the allegations contained in paragraphs 10, 11, and 15 through 18 be dismissed. DONE AND ENTERED this 18th day of September, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2001. COPIES FURNISHED: Honorable Terry L. Rhodes Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Trischler, General Counsel The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture 541 East Tennessee Street, India Building Tallahassee, Florida 32308 Suzanne V. Estrella, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street 515 Mayo Building, Fifth Floor Tallahassee, Florida 32399-0800 James R. Franklin, Esquire Post Office Box 2883 Lakeland, Florida 33806-2883
The Issue Whether Gamm Contracting Company (Gamm), Respondent, is in default on Contract 89095-3424 and its certification to bid on Department of Transportation (DOT) contracts subject to revocation. The critical issue presented in this case is whether Respondent's refusal to repair, without first being issued a supplemental agreement, damage to the project (89 095- 3424) caused by a third party prior to acceptance by DOT with no contributory negligence by Respondent, is grounds for revocation.
Findings Of Fact Gamm, Respondent, was awarded the contract as prime contractor to construct rest areas on 1-95 at the Martin County rest area southwest of Stuart, Florida. The job number of this contract is 89095-3424 (Exhibit 1). The project proceeded satisfactorily and was approximately 95% complete on December 7, 1988 when, around 8:45 a.m., a motorist southbound on 1-95 suffered an epileptic seizure, his car proceeded through the off-ramp barricade at the rest area under construction and collided with the west end of the south bound rest area building. The collision caused extensive damage to the wall of this building with estimated repair costs of approximately $46,000. On January 4, 1989, Gamm was notified by DOT that, pursuant to Section 7-14 of the Standard Specifications (Exhibit 2), DOT was holding Gamm responsible for the repairs to the building damaged by the automobile collision on December 7, 1988 (Exhibit 8). By letter dated January 12, 1989 (Exhibit 8), Gamm denied the contract placed the risk of damage to the building by a third party, without fault on the part of Gamm, on Gamm Contracting as contended by DOT. Considerable correspondence followed between Gamm and DOT in which DOT pursued its position that Gamm was responsible for the damage, and Gamm refused to make the repairs absent a supplemental agreement to cover the costs of repair. By letters dated March 3, 1989 (Exhibit 13) and May 19, 1989 (Exhibit 17), Gamm notified DOT of "presumptive completion" of the project and all work required under the contract is complete. DOT responded to these letters by letters dated March 6, 1989 and May 23, 1989, by pointing out incomplete items on the contract. As of the date of the hearing, Gamm had not obtained the required permit from the Department of Environmental Regulation for the well to provide water to the project. Accordingly, the building was not ready for use. At no time has DOT accepted this project as being completed by the contractor. By letter to Gamm dated June 23, 1989 (Exhibit 4), DOT declared the contract to be in default because repairs to the building caused by the automobile accident had not been repaired, and Gamm had stated it would not repair damage to this building. DOT Standard Specifications for Road and Construction (Exhibit 2) are an integral part of the contract entered into between Gamm and DOT to construct this rest area. Following the accident, the resident engineer at the project site directed Gamm to make the necessary repairs. Gamm refused without first receiving a supplemental agreement covering the cost of repair. The motorist's insurance carrier has offered the insurance coverage which is approximately $30,000 toward repair of this damage. DOT, pursuant to the terms of the contract, has withheld some $48,000 of the amount owed Gamm upon completion of the contract pending final acceptance. Gamm bases its position that it is not responsible to repair this damage on Section 7-14 of the Standard Specifications (Exhibit 2) which provides in pertinent part: Until acceptance of the work by the Department it shall be under the charge and custody of the Contractor and he shall take every necessary precaution against injury or damage to the work by the action of the elements or from any other cause whatsoever, arising either from the execution or from the nonexecu- tion of the work. The Contractor shall rebuild, repair, restore and make good, without additional compensation, all injury or damage to any portion of the work occasioned by any of the above causes before its completion and acceptance except that in the case of extensive or catastrophic damage the Department may, at its discretion, reimburse the contractor for the repair of such damage due to unforeseen causes beyond the control of and without the fault or negligence of the Contractor, including but not restricted to Acts of God, of the public enemy or of govern- mental authorities. Section 5-5 of Exhibit 2 provides for the work on the contract to be performed under the supervision of the engineer designated to supervise the construction and that he shall decide all questions, difficulties and disputes, of whatever nature, arising relative to interpretation of the plans, construction, prosecution and fulfillment of the contract and as to the character, quality, amount and value of any work done, and materials furnished, under or by reason of the contract. This contract provision is generally considered by the road and bridge construction industry to require the contractor to perform any work directed to be performed by the engineer on the project. If the contractor believes he should be paid for such work, his recourse is to file a claim. Section 5-12 of Exhibit 2 provides that where the Contractor deems that extra compensation is due him for work or materials not clearly covered in the contract or not ordered by the engineer as extra work, the contractor shall notify the engineer in writing of his intention to make a claim for extra compensation before he begins the work on which he bases his claim. Section 5-10 of Exhibit 2 provides the contractor shall maintain all work in first-class condition until it has been accepted as a whole and has been given final acceptance by the engineer. This provision is generally interpreted by the construction industry to mean the contractor is responsible to maintain the property and to repair any damage occasioned thereto prior to final acceptance by DOT. In addition to refusing to repair the damage to the building caused by the errant automobile, Respondent has not obtained the final permit from the Department of Environmental Regulation for the well. This permit is required before water can be supplied to the project and the rest station be placed into operation. Accordingly, apart from the damaged building, the project is not complete and ready for acceptance. However, Respondent does not contest the requirement that he obtain the permit needed before water can be made available to the facility. This leaves in dispute only the responsibility for repairs to the damaged building.
Recommendation It is recommended that Gamm Construction Company's qualification to bid on DOT contracts be suspended for one year. ENTERED this 18th day of December, 1989, in Tallahassee, Florida. K.N. AYERS 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 18th day of December, 198. COPIES FURNISHED: Jason O. Barber, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Charles F. Ketchey, Jr., Esquire M. Eric Edginton, Esquire Barnett Plaza, Suite 2400 101 E. Kennedy Boulevard Tampa, Florida 32602-5701 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Granting Motion to Relinquish Jurisdiction and Closing Files by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby Filed July 18, 2011 10:02 AM Division of Administrative Hearings adopts the Order Granting Motion to Relinquish Jurisdiction and Closing Files as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED DONE AND ORDERED this Ee day of July, 2011, in Tallahassee, Leon County, Florida. whet Sandra C. Lambert, Director Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this ___/4 day of July, 2011. Nalini Vinayak, Dealer Ucense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCLivlg Copies furnished: J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 John W. Forehand, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 Eric Scott Adams, Esquire Shutts & Bowen, LLP 100 South Ashley Drive, Suite 1500 Tampa, Florida 33602 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator
Findings Of Fact Petitioner, Edward W. Horsman, filed an application August 14, 1984, pursuant to Chapter 489, Florida Statutes, for certification by examination as an electrical contractor. On October 12, 1984 Respondent denied Petitioner's application on the basis that he lacked sufficient experience in the trade to qualify for the licensure examination. Section 489.521, Fla. Stat., and Rule 21GG-5.02(1), F.A.C. Petitioner filed a timely request for a hearing pursuant to Section 120.57, Fla. Stat. Petitioner has 20 years experience in the electrical construction industry. From 1965-1980 Petitioner was employed by Spaulding Electric Company, an electrical contractor in Detroit, Michigan. While employed by Spaulding, Petitioner worked as a wireman for one and one-half years, a foreman for one and one- half years, a field superintendent for four years, an estimator for one and one-half years, chief estimator for one and one-half years, and as manager of electrical construction for five years. Petitioner's managerial and supervisory experience included supervision of draftsmen in plan preparation, bid estimates, negotiation of contracts, overall supervision of construction, scheduling and purchasing. From 1980-1982 Petitioner was employed by Lastar Electric Company, an electrical contractor in Madison Heights, Michigan. Petitioner's managerial and supervisory experience at Lastar comported with his duties at Spaulding. In December 1982 Petitioner was laid off by Lastar, due to an economic recession which plagued Detroit, Michigan. From December 1982 until February 1984, Petitioner operated his own consulting firm in Rochester, Michigan, providing estimating and project management services for electrical contractors. Business was poor, and few contracts were acquired. In February 1984 Respondent relocated to Englewood, Florida, and undertook his current employment with Baldwin Electric, Inc. Respondent seeks to be licensed as the qualifying agent for Larry's Electric, Inc., a wholly owned subsidiary of Baldwin Electric, Inc.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Jessica E. Varn, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Withdrawal of Proposed Dealer Agreement from Consideration by Respondents and Motion to Dismiss as Moot, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. DONE AND ORDERED this AY day of May, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 4 day of May, 2013. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: Dean Bunch, Esquire Nelson, Mullins, Riley and Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 dean.bunch@nelsonmullins.com John W. Forehand, Esquire South Motors Automotive Group 16165 South Dixie Highway Miami, Florida 33157 john.forehand@southmotors.net David Seymour Leibowitz, Esquire Braman Management Association 2060 Biscayne Boulevard, 2"! Floor Miami, Florida 33137 davidl|@bramanmanagement.com Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 rsox@dealerlawyer.com Jessica E. Varn Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
