Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times relevant to this proceeding, the Respondent held an active Class "A" Private Investigative Agency License and an active Class "C" Private Investigator License, bearing numbers A89-00270 and C88-00259, respectively. Sometime during August, 1991, the Respondent was in his vehicle driving on Interstate 75 in Hillsborough County, Florida with his scanner on scan mode with a voice-activated tape recorder set on voice activator mode so that Respondent could record notes without having to turn the tape recorder on or off. The Respondent was aware that the scanner was on scan mode and was randomly picking through fire reports, police reports and other communications which the scanner was capable of picking up. Respondent was also aware that the communications being picked up by the scanner were most likely being recorded since the tape recorder was on voice activator mode. During this particular time, the Respondent's tape recorder taped a conversation that was transmitted over the scanner between two individuals, one in Bradenton, Florida and the other in Sefner, Florida, which the Respondent later learned were connected with ABC Liquors. The Respondent, after listening to the taped conversation later, determined that it involved ABC Liquors and that someone from ABC Liquors should be made aware of the contents of the conversation. Later, the Respondent contacted Margaret Spaniak, an employee of ABC Liquors, and made an appointment to share with her the contents of the conversation. Before meeting with Respondent, Spaniak contacted ABC Liquors' corporate investigator, Jerry W. Bolton. Bolton advised Spaniak to meet with the Respondent but not to leave the meeting place alone with Respondent. Bolton also advised Spaniak that he would be in the restaurant, and at the proper time would join her and Respondent at their table. Upon meeting with Spaniak, Respondent allowed Spaniak to review that portion of the tape containing the conversation pertaining to ABC Liquors. Spaniak did not testify at the hearing, and the Respondent does not remember whether Spaniak identified the parties to that conversation at that time. After a short period of time, Bolton joined Spaniak and the Respondent at the table. Bolton asked the Respondent for a business card, which the Respondent gave him. The Respondent did not directly or indirectly solicit any business from ABC Liquors, through Spaniak, Bolton, or anyone else connected with ABC Liquors. There is no competent, substantial evidence in the record to establish facts to show that the Respondent intended to solicit business or, in fact, solicited any business from ABC Liquors. Spaniak and the Respondent are the only persons who have listened to the conversation in question recorded by the Respondent and, other than hearsay, there is nothing in the record to establish who the parties were to that conversation. Additionally, there is no competent, substantial evidence in the record to establish facts to show that the conversation was being transmitted over a cellular telephone. In fact, there is no evidence to show how the conversation was being transmitted (C. B. Radio, cordless telephone, cellular telephone, etc.). The Respondent did not give the parties notice prior to their conversation being recorded and, other than possibly through Spaniak or Bolton, has not advised the parties that their conversation was recorded. There were no criminal charges filed against the Respondent as a result of this matter being investigated by the Manatee County Sheriff's Office. The Respondent has performed undercover work for the Manatee County Sheriff's Office where the Respondent has taped wire and oral communications or conversations that were used in criminal investigations and prosecutions. Respondent's work with the Manatee County Sheriff's Office began sometime in August, 1991 and ended in the latter part of November, 1991. The record is not clear, but it appears that the Manatee County Sheriff's Office had intended to extract certain information from other tapes recorded in the same manner by the Respondent that were eventually turned over to the Manatee County Sheriff's Office by the Respondent. However, on advise of counsel and the federal authorities the Manatee County Sheriff's Office did not review any of the tapes, including the one involved in this proceeding. There is insufficient evidence to show that Respondent's action in recording this conversation violated Section 934.03, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Department enter a Final Order dismissing the Administrative Complaint against the Respondent. DONE AND ENTERED this 28th day of October, 1992, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-4379 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the finding(s) of fact which so adopts the preceding proposed finding(s) of fact: 1(1); 2(9); 3(8); 4(4,5 & 12); 6(9,11) and 7(10). Proposed findings of fact 5 and 8 are neither material or relevant to this proceeding. The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: The Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, Esq. General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250 Henri C. Cawthon, Esq. Assistant General Counsel Department of State Division of Licensing The Capitol, MS-4 Tallahassee, FL 32399-0250 James D. Carter, Esq. 1111 3rd Avenue West Suite 150 Bradenton, FL 34205
The Issue Whether the Respondent's license for the Egret Motel should be suspended or revoked and whether a fine should be imposed upon the Respondent?
Findings Of Fact At all times relevant to these proceedings Harshada Nagda has been the holder of license 52-69H, a license for a public lodging establishment known as the Egret Motel (hereinafter referred to as the "Egret"). The Egret is located at 300 S.W. 18th Street, Ocala, Marion County, Florida. There are five septic tanks on the property where the Egret is located. Three of those septic tanks have not created any problems during the period of time at issue in this proceeding. As early as September 10, 1986, problems with two of the septic tanks and the waste disposal system of the Egret have bean experienced. As a result of the problems with the Egret's waste disposal system, an Official Notice to Abate a Sanitary Nuisance was issued by the Marion County Public Health Unit on May 6, 1987. This Notice was hand delivered to the Manager of the Egret. The following violation was reported on the Notice: "An inspection on 9/10/86, 2/11/87, 5/5/87 disclosed the discharge of untreated or improperly treated human waste onto the ground surface." On June 8, 1987, the Respondent signed the following letter to Mr. David L. Townsend, Environmental Health Director, Marion County Public Health Unit: This letter shall serve as consent order that I will keep the existing septic tank system and drain field pumped and maintained until, [sic] January 1, 1988, by which time the existing buildings will be torn down and the new buildings will be hooked up to the City of Ocala Sewer System. On October 5, 1987, the Marion County Public Health Unit received a complaint from a neighbor of the Egret about the sewage system. On October 5, 1987, Robert Wade Varnadore, an Environmental Health Supervisor of the Marion County Public Health Unit, and William B. Dickson, an Environmental Health Specialist with the Petitioner, inspected the Egret property. They discovered raw, untreated sewage leaking onto the surface of the grounds of the Egret in three different places. The sewage from these locations ran along the surface of the Egret property toward the back of the property. The ground around the leaks and the run off was saturated with effluent (human liquid waste), there was fecal material (human solid waste) and tissue paper in standing effluent and a bad odor permeated the area. The conditions were similar to those found on October 13, 1987, as described further, infra. Mr. Dickson completed a Public Lodging Inspection Record on October 5, 1987, at the end of the inspection and gave it to Lenora Cox, who signed the Record as manager of the Egret. The Record reported a "Major" problem with "sewerage or disposal system" and indicated the following: "Failure to maintain an adequate and approved sewage disposal system as evidence [sic] by failing septic systems leaking raw sewage to the surface of the ground." Mr. Varnadore reported the condition of the Egret on October 5, 1987, to Mr. Townsend and recommended that action be taken to close the Egret. Mr. Townsend and Mr. Varnadore then met with Nathan Grossman, M.D., Marion County Health Director. Dr. Grossman was informed of the present condition of the Egret and the history of the problem. Based upon this report, Dr. Grossman condemned the property by letter dated October 5, 1987, "as an imminent threat to the health, safety and welfare of the public." On October 8, 1987, Mr. Dickson returned to the Egret and conducted an inspection. Mr. Dickson completed a Public Lodging Inspection Record. A copy of the Record was given to Al Cox, who signed the Record as "manager" of the Egret. Mr. Dickson noted the following -major" problems in the following general categories at the Egret: Electrical deficiencies, proper locking devices, building repair/painting; toilet/lavatory facilities, household furnishings, plumbing, ventilation, garbage and refuse, sewerage or disposal system, room rates posted and smoke detector. The specific problems discovered by Mr. Dickson were noted on a sheet of paper which has been accepted into evidence as exhibit 4. Mr. Dickson's description of the specific problems at the Egret in exhibit 4 is hereby adopted as a correct characterization of problems existing at the Egret. Among the problems existing at the Egret on October 8, 1987, was the failing sewerage at the same locations noted during the October 5, 1937, inspection of the Egret. As a result of the inspection on October 8, 1987, Mr. Dickson requested an emergency order closing the Egret. On October 13, 1987, Mr. Varnadore, Mr. Dickson and Mr. Townsend went to the Egret and served an Emergency Order of Suspension and a Notice to Show Cause. The Emergency Order of Suspension orders the suspension of the Respondent's license until the Order is lifted or a Final Order is issued pursuant to the Notice to Show Cause. The Emergency Order also ordered the Respondent to cease and desist from the sale or rental of lodging units at the Egret. The Notice to Show Cause notified the Respondent that the Petitioner may assess a civil penalty against her or suspend or revoke her license with the Petitioner based upon the condemnation by the Marion County Public Health Unit of the Egret, the condition of the sewage system of the Egret on October 3, 1987, and other problems noted by Mr. Dickson as a result of his October 8, 1987, inspection. The Notice to Show Cause also notified the Respondent that, if she wished to contest the charges against her, she could inform the Petitioner that she intended to attend an emergency hearing scheduled to commence on October 16, 1987, or she would be given at least fourteen days notice of a final hearing to be conducted at a later date in accordance with Section 120.57(1), Florida Statutes. At the time that the Emergency Order of Suspension and the Notice to Show Cause were served, nine pictures were taken on the property of the Egret reflecting the condition of part of the Egret's sewage system. The conditions reflected in the pictures are representative of the conditions in existence on October 5, 1987. Sewage was found to be leaking to the surface in at least three locations. There were exposed and broken pipes connecting the sewage system to the Egret, standing effluent and saturated ground, floating tissue paper and fecal matter. If a hotel has raw sewage on the ground and people are on the property, those people are in danger. Anyone coming into contact with human waste can contract hepatitis, a liver disease, or any number of other diseases. Although the Respondent indicated that the problem with the sewage system had been corrected, the weight of the evidence fails to support such a finding of fact. The Respondent indicated that she believed that the problem discovered with the sewage system in October had been caused by excessive rain and roots clogging the system. She indicated that the roots had now been cleared. Removing roots, however, will not stop broken pipes from leaking and the evidence failed to support a conclusion that the system will not fail again when it rains or otherwise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's license number 52-69H be suspended for a period of 12 months for violating Sections 509.211(1) and 509.215(1), Florida Statutes (1986 Supp.), Section 509.221(2) and (5), Florida Statutes (1985), and Rules 7C-1.004 (4) and (7), and 7C-3.00l(1) and (9), Florida Administrative Code. It is further RECOMMENDED that a total fine of $500.00 be imposed on the Respondent for violating Sections 509.201(1), and 509.221(2), Florida Statutes (1985), and Rules 7C-1.003(1), and 7C-3.002(i) and (2), Florida Administrative Code. DONE and ENTERED this 4th, day of November, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 4th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4484 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 2. 4 and 5. The first paragraph is unnecessary. It only affects the weight to be given Mr. Varnadore's testimony. The last two para- graphs are technically not findings of fact; are statements about the witnesses' testimony. It will be assumed that such statements about testimony are intended to reflect the facts. See 7, 8 and 10. 8 and 9. 11. Mr. Dickson's "opinion" is irrelevant. 14 and 17. The last sentence is a con- clusion of law. 7. 17. 8. Irrelevant. 9. 17. 10. The last sentence is irrelevant. Irrelevant. 10. The last sentence is irrelevant. 8, 10 and 18. Dr. Grossman did not, how- ever, testify about a facility of "more than 30 units." Although Dr. Grossman was asked about a 30 unit facility he specifically indicated that his conclusion about the Egret had nothing to do with the size of the facility. 14. 5. 15. 6. 16. 3 and 19. 17-19. Irrelevant. COPIES FURNISHED: Van B. Poole, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 R. Hugh Snow, Director Division of Hotels and Restaurants Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Lynne A. Quimby, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Harshada Nagda Egret Motel 300 Southwest 18th Street Ocala, Florida 32674
The Issue The issue is whether Respondent is entitled to additional credit for correctly answering certain questions on the unlimited electrical contractor examination administered on January 19, 1996.
Findings Of Fact Petitioner began working for an electrical contractor in Tallahassee, Florida in 1959. He served three years as an apprentice under a journeyman electrician. After working in the trade for three and one-half years, Petitioner passed a test and became a journeyman electrician. Since 1972, Petitioner has been the owner of an electrical contracting business in Tallahassee, Florida. His company employs two master electricians, several journeymen electricians, and one electrical contractor. Petitioner took the examination for licensure as an unlimited electrical contractor for the third time on January 19, 1996. A minimum passing score on that examination is seventy- five (75.00) total points. On or about June 20, 1996, Respondent sent Petitioner an amended grade report indicating that Petitioner’s examination score was 73.30 and that he had failed the test. Block and Associates, an independent testing service, prepared the examination at issue for Respondent. The examination consist of multiple-choice questions which are machine graded. The morning session includes 100 technical questions. In order to answer some of the technical questions, an applicant must be able to read and interpret a power and lighting floor plan together with specifications. The afternoon session includes fifty (50) questions involving general principles of law and business. The subject examination is an open book test. Candidates may take certain designated reference material into the test area. The candidate’s information booklet advises that “these references should be brought to the examination site as questions will be asked that are based upon obtaining data from these references before answering.” The candidate’s information booklet directs the candidate to select the best answer to each question. The candidate is then advised that “[e]ach question has one answer, which will be graded as the correct answer to the question.” In other words, of the four answer choices for each question, Respondent considers only the best answer to be the “correct” answer. Respondent considers the other three answer choices to be “distractors” or incorrect answers for which the candidate will receive no credit. A distractor tests a candidate’s overall knowledge, skills and ability by being plausible but nonetheless wrong. In this case, Petitioner is challenging Respondent’s failure to give him credit for a “correct” answer in relation to six different questions - i.e., question numbers 20, 29, 51, and 90 from the morning session and question numbers 13 and 33 from the afternoon session. Question number 20, AM Session, states: All machines used for external or internal grinding shall be . provided with safety switches provided with permanently attached eye protection shields supplied with sufficient power to maintain the spindle speed at safe levels under all conditions of normal operation provided with safety flanges Respondent claims that answer C is the best answer. Petitioner chose answer D as the correct answer. Candidates may refer to the regulations of the Occupational Safety and Health Administration (OSHA), United States Department of Labor, found in 29 C.F.R. §1926 (1993) during the exam. 29 C.F.R. §1926.303 (1993) provides in pertinent part: §1926.303 Abrasive wheels and tools. Power. All grinding machines shall be supplied with sufficient power to maintain the spindle speed at safe levels under all conditions of normal operation. Guarding. (1) Grinding machines shall be equipped with safety guards in conformance with the requirements of American National Standards Institute, B7.1-1970, Safety Code of the Use, Care and Protection of Abrasive Wheels, and paragraph (d) of this section. . . . Use of abrasive wheels. . . . (6) When safety flanges are required, they shall be used only with wheels designed to fit the flanges. Only safety flanges, of a type and design and properly assembled so as to ensure that the pieces of wheel will be retained in case of accidental breakage, shall be used. . . . . The focus of question number 20 is on safety in the use of power tools as regulated by OSHA. The concept that machines used for grinding shall be provided with safety guards and safety flanges is clearly articulated in the OSHA standards. In this case, the authoritative references and other competent evidence support answers C and D as correct answers for question number 20. However, the greater weight of the evidence indicates that answer D is the better answer. Therefore, Respondent should have given Petitioner credit for correctly answering question number 20, AM Session. Question number 29, AM Session, states: A digital fire alarm communicator transmitter shall be connected only to a telephone circuit. “loop start” “ground start” party line single line Respondent maintains that answer A is the best answer. Petitioner answered D. The National Fire Protection Association (NFPA) publishes the National Fire Alarm Code in conjunction with the American National Standard Institute (ANSI). NFPA 72, National Fire Alarm Code (1993), is an approved reference for the subject examination. NFPA 72, §§ 4-2.3.2.1.1 and 4-2.3.2.1.3 (1993) provide as follows: 4-2.3.2.1.1 A DACT [Digital Alarm Communicator Transmitter] shall be connected to the public switched telephone network upstream of any private telephone system at the protected premises. In addition, special attention is required to ensure that this connection shall be made only to a loop start telephone circuit and not to a ground start telephone circuit. * * * 4-2.3.2.1.3 A DACT shall be capable of seizing the telephone line (going off-hook) at the protected premises, disconnecting an outgoing or incoming telephone call, and preventing its use for outgoing telephone calls until signal transmission has been completed. A DACT shall not be connected to a party line telephone facility. Answers A and D are both correct answers to question number 29. However the greater weight of the evidence indicates that answer A is the better answer because a single line can be loop started or ground started. Therefore, Respondent properly determined that Petitioner should receive no credit for question number 29, AM Session. Question number 51, AM Session, states: If the building lost normal power for a period of time in excess of 1-1/2 hours, how many lights would be required to remain functional? 0 2 4 7 Respondent claims that answer A is the best answer. Petitioner chose answer B as the correct answer. Question number 51 requires the candidate to review plans, drawings, and electrical schematics in order to select the correct answer. The plans reveal the existence of two battery powered emergency lights. The electrical legend states that the emergency lights are “[f]lourescent with emergency battery pack to provide 90 minutes of illumination on normal power failure.” Although it is not apparent on the face of the question or the electrical legend, the emergency battery pack would automatically recharge upon the restoration of normal power to the building. Respondent used the word “functional” in question number 51 to test the candidate’s knowledge that emergency light battery life, absent power, was 1-1/2 hours. Respondent’s answer of “zero” reflected that the emergency light battery pack would be completely discharged leaving the emergency lights without the capacity to illuminate after 1-1/2 hours of an on-going power failure. Petitioner, recognizing the recharge capability of the emergency lights, considered the word “functional” to include the proposition that the battery recharging process would occur upon restoration of normal power. This interpretation requires the candidate to assume that normal power will be restored and the battery pack recharged. Depending on the interpretation that a candidate places on the word “functional” in question number 51, either answer A or B could be considered correct. However, the greater weight of the evidence indicates that answer A is more correct than answer B. Answer A, unlike answer B, does not require the test taker make assumptions not apparent on the face of the question. Therefore, Respondent properly determined that Petitioner should not be given credit for correctly answering question number 51, AM Session. Question 90, AM Session, states: The required size of an electrical conductor is determined by all but which of the following? either stranded or solid length material amps Respondent asserts that answer A is the correct answer. Petitioner chose answer B. There is no correct or “best” answer for question number 90. All four choices are useful to some degree in determining the size of an electrical conductor. The NFPA publishes NFPA 70, National Electrical Code (1993), which is an approved reference for the subject test. In that code Table 8, Conductor Properties, clearly shows that the difference between stranded or solid wire has an objective, quantifiable effect on the required size of an electrical conductor. The selection of solid versus stranded wire produces a different result for ohms, i.e. resistance. Resistance is part of the consideration to determine the correct size of the wire. Petitioner’s answer to question number 90 was incorrect because the required size of an electrical conductor is determined in part by its length. Respondent’s answer to question number 90 was also incorrect because the size of an electrical conductor depends in part on whether the wire is solid or stranded. Respondent’s question failed to give sufficient information for Petitioner to select “stranded or solid” as the correct or best answer because the question did not request the candidate to choose the least important factor in determining the size of an electrical conductor. As the question was written, Petitioner’s answer was no more incorrect than Respondent’s. Under these circumstances, Petitioner should receive credit for answering question number 90, AM Session, correctly. Question number 13, PM Session, states: A “credit memo” from your bank could indicate . a charge for preprinted checks a check you deposited has been returned a check you wrote for $100.00 was cleared at $1,100.00 interest given to you Respondent claims that answer D is the best answer. Petitioner chose answer C. The 1987 edition of Builder’s Guide to Accounting, by Michael C. Thomsett, is an approved reference for the subject test. That text states in pertinent part: Error adjustments Your bank notifies you about error they find. For example, if you have a math error on a deposit, the bank will send you either a debit memo (advising you to decrease your balance) or a credit memo (advising you to increase your balance). . . Banking terminology can be confusing. Charges, debits and debit memos are all ways of reducing your balance. Credits and credit memos increase your balance. Thomsett, Michael C., Builder’s Guide to Accounting, Craftsman Book Company (1987) p.80. Respondent’s answer choice of “interest given to you” is correct if the account in question is an interest bearing account. Interest paid on such an account would increase the account balance. However, corporate checking accounts do not pay interest in the state of Florida. Likewise, Petitioner’s answer choice of “a check you wrote for $100.00 was cleared for $1,100.00” would result in a credit memo when the bank realized its error and adjusted the account to reflect the increased balance regardless of whether the account was personal or corporate. Petitioner’s answer is just as correct as Respondent’s because there was not enough information given in the question to allow Petitioner to select answer D as the correct answer or to determine that answer C was an incorrect answer. Accordingly, Petitioner should be given credit for correctly answering question number 13, PM Session. Question number 33, PM Session, states: Bonding capacity is . the maximum value of uncompleted work a bonding company will allow a contractor to default on at any one given time The maximum value of work a bonding company will allow a contractor to bid at any one given time the maximum value of uncompleted work a bonding company will allow a contractor to have on hand at any one given time the maximum value of work a bonding company will allow a contractor to bid in any one year Respondent claims that answer C is the correct answer. Petitioner chose answer B as the correct answer. One of the approved references for the subject test is the 6th edition of Construction Contracting by Richard H. Clough. Section 7.13 of that text states as follows in pertinent part: 7.13 Bonding Capacity A useful concept widely used by the construction industry is that of ’bonding capacity’ or ’bonding line.’ These terms have no precise definition but refer to the maximum value of uncompleted work the surety will allow the contractor to have on hand at any one time. . . . Clough, Richard H., Construction Contracting, 6th edition, John Wiley & Sons (1994) p.188. Answers B and C are both correct in part. Uncompleted work is one of many factors used by sureties to determine bonding capacity. Sureties also consider the applicant’s background, experience, ability, equipment, type of personnel and financial performance. However, the greater weight of the evidence indicates that answer C is the best answer. Therefore, Respondent properly determined that Petitioner should not receive credit for correctly answering question number 33, PM Session.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is recommended that Respondent enter a Final Order finding that Petitioner is entitled to additional credit for correctly answering question numbers 20 and 90 in the AM Session and question number 13 in the PM Session and adjusting his score accordingly on the May 19, 1996 unlimited electrical contractor examination. DONE AND ORDERED this 16th day of April, 1997, in Tallahassee, Florida. SUZANNE F. HOOD 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 16th day of April, 1997. COPIES FURNISHED: Michael F. Coppins, Esquire Cooper, Coppins and Monroe, P.A. Post Office Drawer 14447 Tallahassee, FL 32317-4447 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750 Ila Jones, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Spot audits of the accounts of medicaid providers disclosed a high proportion using incorrect code numbers in reporting patient visits. Specifically many were using the new patient code number for old patients treated for a new illness. Since most of the medicaid billing was processed by computers, a program was devised to screen the accounts of the 15,000 medicaid providers in Florida to determine the overcharges generated by this one billing error. The auditing period from January 1, 1979 to October 27, 1980 was selected and a computer printout was obtained on each provider that was found to have overbilled HRS more than $100 during this period. One reason for selecting January 1, 1979 as the starting point was that Medicaid Information Update of January 1979 published by SDC Integrated Services, Inc. contained a notation that Procedure Codes 90000 - 90026 are to to be used when billing for new patients only. Once a patient has been seen by a physician, subsequent office visits are to be billed with procedure codes 90030 - 90087 (Florida Relative Value Studies, page 23.) Another reason was that Rule 10C-7.38, F.A.C., became effective January 2, 1979. SDC Integrated Services is under contract to HRS to serve as its fiscal agent to receive and pay medicaid claims and issue provider numbers to participating physicians. It maintains a roster of those providers and publishes information bulletins which are mailed to all providers on its list to keep them current on correct medicaid billing procedures. Respondent has been a medicaid provider since 1975. He is a board certified surgeon and has practiced medicine since 1952. He did not receive the medicaid information update of January 1979 (Exhibit 1) Respondent, under the honest and sincere belief that the procedure was correct, used procedure codes 90000 - 90026 for new patients and for previously treated patients who returned with a new ailment. When he received information in October 1980 that he had been using the incorrect billing codes for previously treated patients, Respondent changed to the proper billing codes and procedure. During the period January 1, 1979 to October 27, 1980 Respondent wrongly billed 1,944 office visits and was overpaid by HRS $9,612.44 for treatment of patients billed under procedure codes 90000 - 90026 who should have been billed under procedure codes 90030 - 90087. In the average medicaid office approximately 37 percent of the outpatients are new patients. Some 80 percent of Respondent's outpatients were billed as new patients during the audit period. Respondent's principal objection is that he was not advised sooner that he was using incorrect procedure codes and received over $9,000 in excess payments before learning of the error. Respondent also contends that he performs numerous minor surgeries and gives shorts for which he does not bill medicaid. However, had he been aware of the proper billing procedures for new patients in January 1979, he would have billed properly.
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the scheduled final hearing.
Findings Of Fact Upon receipt of the Petition for Relief at DOAH, an Initial Order was issued on October 8, 2010, requiring Petitioner to coordinate a joint response to provide certain information within seven days or to file a unilateral response, if a joint response was not possible. Petitioner did not respond to the Initial Order. On October 15, 2010, Respondent submitted a unilateral response indicating that Petitioner had not contacted Respondent to coordinate a response. The undersigned issued a Notice of Hearing on November 5, 2010, scheduling the final hearing for December 8, 2010, at the Martin Luther King, Jr., Administrative Center in Naples, Florida. The notice included citations to the procedural statutes and rules governing the hearing and information about the parties' obligation to appear at the hearing with their witnesses and evidence. With the Notice of Hearing, the undersigned issued an Order of Pre-hearing Instructions, which required the parties to exchange witness lists and copies of their proposed exhibits at least seven days before the final hearing and to file their witness lists with DOAH. The Order warned that failure to comply with these requirements "may result in the exclusion at the final hearing of witnesses or exhibits not previously disclosed." The foregoing Orders and notice were mailed to Petitioner at his address of record in New York, New York, and none of these envelopes was returned as undeliverable. Petitioner resides in New York, but as specified in the FCHR Determination of No Cause, Petitioner is a frequent visitor to Naples, Florida, where his mother lives in a condominium she owns at Park Shore Landings. Indeed, it was Petitioner's rental of a unit at Park Shore Landings, on multiple occasions spanning multiple weeks that gave rise to Petitioner's complaint filed with FCHR. On November 23, 2010, Respondent filed a Motion for Continuance because of difficulties coordinating Petitioner's deposition to accommodate Petitioner's holiday travel plans and scheduling conflicts. A continuance was granted for good cause shown, and the final hearing was rescheduled for February 15, 2011, at 9:00 a.m., in Naples, at a location to be determined at a later date. The Order stated that the previous Order of Pre-hearing Instructions remained in full force and effect. An Amended Notice of Hearing was issued on December 9, 2010, to specify the hearing location: Martin Luther King, Jr., Administrative Center, 5775 Osceola Trail, Naples, Florida. This notice repeated the hearing date (February 15, 2011) and time (9:00 a.m.). The notice also reiterated that the parties were required to appear at the time and place of the hearing with their witnesses and evidence and that failure to appear may result in dismissal. The notice listed the name, address, and telephone number for the hearing room contact person at the hearing site. The notice was mailed to Petitioner at his address of record and was not returned undeliverable. On December 15, 2010, Respondent filed a notice of taking Petitioner's deposition in Naples on December 22, 2010, at a court reporter's office near the scheduled location for the final hearing. On February 2, 2011, the undersigned issued another Amended Notice of Hearing to advise that any party desiring a court reporter had to make arrangements at the party's own expense, with notice to the other party and to the undersigned. This notice repeated the final hearing date (February 15, 2011), time (9:00 a.m.), and location (Martin Luther King, Jr., Administrative Center, 5775 Osceola Trail, Naples). The notice also repeated the name, address, and telephone number for the hearing room confirmation contact person. Like all previous notices of hearing, the notice reiterated that parties were required to appear at the time and place of the hearing with their witnesses and evidence and that "[f]ailure to appear at this hearing may be grounds for entry of an order of dismissal." On February 8, 2011, in accordance with the Order of Pre-Hearing Instructions, Respondent filed its witness list, with names and addresses for five witnesses and a certification that Respondent's exhibits had been provided to Petitioner. No witness list was filed by Petitioner. On February 10, 2011, Respondent gave notice to the undersigned and to Petitioner that Respondent had retained a court reporter to record the February 15, 2011, final hearing. The undersigned traveled from Tallahassee to Naples on Monday, February 14, 2011, and stayed overnight at a hotel in Naples, in order to convene the hearing scheduled for 9:00 a.m., the next morning. On February 15, 2011, the undersigned arrived at the noticed hearing location at approximately 8:30 a.m. Counsel for Respondent (from Tampa) and four of Respondent's witnesses were already present. Arriving at the same time as the undersigned was Respondent's fifth witness and the court reporter. At 9:00 a.m., the undersigned went on the record to convene the scheduled hearing to allow counsel for Respondent to enter his appearance for the record and to announce that Petitioner had not appeared or contacted anyone to explain his absence. The undersigned then recessed the hearing for 20 minutes in case Petitioner was running late. At 9:12 a.m. (as time-recorded by the undersigned's mobile phone), the undersigned called her assistant at DOAH to determine whether Petitioner had called DOAH or submitted anything in writing that would explain his failure to appear for the scheduled hearing. The undersigned's assistant stated that no calls or filings had been received and that she would call the undersigned on her mobile phone immediately, if Petitioner contacted her. Meanwhile, to make sure that Petitioner was not on the premises unable to find the hearing room, one of Respondent's representatives checked at the front desk, where anyone entering the building would have to check in and go through the security procedures, and verified that Petitioner had not arrived. Shortly after 9:20 a.m., the undersigned went back on the record to state that Petitioner had still not appeared, nor had Petitioner contacted DOAH or someone at the hearing site. The undersigned recited the steps taken to verify the absence of contact by Petitioner; reviewed the file, noting the multiple notices and Orders mailed to Petitioner; and confirmed Petitioner's address of record to which the notices and Orders were mailed and not returned as undeliverable. Respondent represented that Petitioner did not show up for the first deposition scheduled in coordination with Petitioner's calendar, but that Petitioner did appear the second time his deposition was set. Respondent also represented that Petitioner did not provide Respondent with a witness list or copies of any proposed exhibits. Respondent had no other information about Petitioner's whereabouts or intentions. Based on Petitioner's failure to appear and present a prima facie case to meet his burden of proof, the convened hearing was adjourned shortly before 9:30 a.m. Those present took some time to pack up computers and files and move furniture to restore the room to its prior configuration. Thus, it was after 9:30 a.m., when the undersigned exited the building, after checking again at the front desk to verify there was still no sign of, or word from, Petitioner. The undersigned drove to a hotel located eight minutes from the hearing site. Upon arrival, the undersigned's mobile phone rang, but could not be answered before the call went to voice mail. A voice mail message was left by the undersigned's assistant, time-recorded at 9:51 a.m. The message was that the undersigned's assistant had just spoken with Mr. Ziolkowski, who had called to say that he was at the hearing site, but no one was there. Petitioner told the assistant that he had been at the emergency room until an hour earlier (i.e., until 8:45 a.m.), and he went straight to the hearing site. The undersigned's assistant asked Petitioner why he had not called sooner, and his only response was that he did not have his mobile phone; but when asked how he was calling her then, he said he was calling from his mobile phone, and he gave the assistant his mobile phone number, which had not been provided previously. Petitioner then asked the undersigned's assistant about rescheduling the hearing. She explained that she had no authority to address his request; if Petitioner wanted the undersigned to consider a request for relief, it had to be submitted in writing and should provide any explanation and documentation he had as to why he could not be at the hearing and why he could not call. A memorandum from Mr. Ziolkowski was filed at DOAH by fax on February 16, 2011, at 2:40 p.m. The one-page memorandum, with no attachments and no certificate of service indicating service on Respondent, stated in pertinent part: Please accept my apologies for not being able to communicate with you yesterday regarding my delayed appearance to your courtroom. I was in the emergency room at Naples Community Hospital until 8:11 am Tuesday (2/15/11). I went straight from the hospital to the Administrative center and I didn't have my mobile phone or directions to the Administrative center and finally I reached the Administrative center at approximately 9:30 a.m. Petitioner ended the memorandum with a request to reschedule the final hearing. Copied onto the bottom of the page was a small label, perhaps a hospital-issued identification bracelet bearing Petitioner's name and date of birth, a reference number and several other numbers, "NCH 02/15/11," and a bar code. The undersigned issued a Notice of Ex-Parte Communication with the memorandum attached, which was mailed to both parties. On February 28, 2011, Respondent filed its Objection to Petitioner's Request for Re-Hearing. Respondent's objection asserted that the documentation offered by Petitioner was insufficient to prove that Petitioner was at Naples Community Hospital until 8:11 a.m. on February 15, 2011, because the identification label only showed a date, February 15, 2011, which could be as early as 12:01 a.m., or as late as many hours after the scheduled hearing. Petitioner chose not to provide the documentation that he apparently had to show the precise time that he left the emergency room--8:11 a.m. (more than 30 minutes earlier than he told the undersigned's assistant on the telephone). Such documentation would also likely reveal such information as the time of day or night when Petitioner was clocked in at the emergency room; why Petitioner presented at the emergency room; what, if anything, was wrong with Petitioner; and whether he received any treatment or whether treatment was deemed unnecessary. Respondent's objection went on to note that even assuming the accuracy of Petitioner's stated departure time of 8:11 a.m., from Naples Community Hospital, that hospital has only two campuses, "one of which is six minutes and the other is fifteen minutes away from the location of the hearing." Respondent's objection concluded, "At bottom, Petitioner was not in the emergency room at the time of the hearing, had ample time to attend the hearing, and has provided no evidence to support his request to re-schedule the duly-noticed February 15, 2011 hearing."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, John Ziolkowski's, Petition for Relief. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
The Issue Whether the proposal Petitioner submitted in response to Respondent's Request for Proposal No. 00-DC-7295 was non- responsive.
Findings Of Fact Stipulated Facts On or about August 14, 2000, the Department issued RFP No. 00-DC-7295 for an Inmate Telephone System. Generally, RFP No. 00-DC-7295 requests proposers to submit proposals to provide local, intralata, interlata, and international telephone services for inmates in the Department's facilities identified in the RFP and coin- operated telephones at each site for staff and visitors. The proposer awarded the contract under RFP No. 00-DC-7295 (the Contractor) must provide and install all telephone instruments and all wiring. The Contractor must also provide system administrators and site technicians who will implement and manage pin numbers and calling lists for inmates, and must provide various specified reports and data to the Department All services, equipment, etc., addressed in RFP No. 00-DC-7295 must be provided to the Department at no cost. Instead, the Contractor must pay the Department a commission calculated as a percentage of gross revenues. Consequently, the contract to be awarded under RFP No. 00-DC-7295 is a revenue-generating contract for the Department. Sprint, T-NETIX, WorldCom at AT&T timely submitted proposals to the RFP. On November 6, 2000, the assigned Department Purchasing Staff member, Genanne Wilson, determined the AT&T and Sprint proposals to be non-responsive for failing1 to meet the mandatory requirements of the RFP. Sprint's proposal was also determined to contain a material deviation2 from the RFP. The determination that the Sprint proposal failed3 to meet the mandatory requirements of the RFP and contained a material deviation was based on Sprint's inclusion of the following underlined language on the Supplemental Proposal Sheets wherein the proposers were instructed to appropriately initial in understanding and agreement each paragraph of the RFP: Liquidated Damages With the express understanding the total liquidated damages are limited to $100,000.00 by the Limitation of Remedies in Section 7.32. Following the determination that the Sprint proposal failed4 to meet the mandatory requirements of the RFP and contained a material deviation, Sprint's proposal was not further evaluated by the Department. The T-NETIX5 and WorldCom proposals were individually evaluated by each member of an Evaluation Team pursuant to the criteria specified in the RFP. On Tuesday, December 5, 2000, the Department posted its intended award of the contract for RFP No. 00-DC-7295 to WorldCom. Sprint and T-NETIX each timely filed a protest to this intended award. Findings of Fact Based on the Evidence of the Record On or about October 13, 2000, the Department issued Addendum No. 1 to RFP No. 00-DC-7295 which reprinted the original RFP in its entirety and included 67 revisions. Section 4.3.6 of the RFP specifies that, "[t]he Department shall reject any and all proposals not meeting mandatory responsiveness requirements." Section 5.1 of the RFP, reads in pertinent part as follows: Tab 1 - Mandatory Responsiveness Requirements The following terms, conditions, or requirements must be met by the proposer to be responsive to this RFP. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a proposal. Any proposal rejected for failure to meet responsiveness requirements will not be evaluated. It is mandatory that the proposer supply one (1) original and ten (10) copies of both the Project and the Cost Proposals. Project and Cost Proposals shall be in separately sealed packages each clearly marked "Project Proposal - RFP-00-DC-7295" or "Cost Proposal - RFP-00-DC-7295" respectively. Inclusion of any commission rates or pricing data in the Project Proposal shall result in rejection of the entire proposal. It is mandatory the proposer return, under Tab 1, the Supplemental Proposal Sheets (Attachment 1) of this RFP document, appropriately initialed in understanding and agreement of each paragraph of the RFP and signed by the person with authority to properly bind the proposer. It is mandatory the proposer complete, sign and return, under Tab 1, the PUR Form 7033, State of Florida Request for Proposal/Contractual Services Acknowledgment which is the front cover of this RFP document. A copy of the document that includes both front and back sides is acceptable. (emphasis in original) Section 6.1 of the RFP further provides: 6.1 Review of Mandatory Responsiveness Requirements Proposals will be reviewed by Department staff to determine if they comply with the mandatory requirements listed in Section 5 of the RFP. This will be a yes/no review to determine if all requirements have been met. Failure to meet any of these mandatory requirements will render proposal non-responsive and result in rejection of the proposal. Further evaluation will not be performed. No points will be awarded for passing the mandatory requirements. (emphasis in original) RFP Section 7.30, entitled, "Liquidated Damages," addresses liquidated damages for various requirements and services to be provided by the successful proposer under the contract for an inmate telephone system. Section 7.30 does not contain a cap or limitation on liquidated damages. RFP Section 7.32, entitled "Limitation of Remedies," addresses the limitation of remedies for the performance or non-performance of machines and programming. There is no cap or limitation on liquidated damages established by RFP Section 7.32. Sprint altered the Supplemental Proposal Sheets by limiting liquidated damages under Section 7.30 to $100,000 based upon its understanding of the relationship between Sections 7.30 and 7.32 of the RFP. Specifically, Sprint read Sections 7.30 and 7.32 in para materia and concluded that total liquidated damages would be "limited to $100,000 by the limitation of remedies in Section 7.32." Mike Jewell, who at the time the RFP was issued, was Sprint's Vice President of Sprint Payphone Services, Inc., was responsible for "oversight over the responses that Sprint submitted and to make sure that they were in keeping with the corporation's business interests." Mr. Jewell testified that the purpose of inserting this language in the proposal was to, "point out to the Department of Corrections that our agreement to 7.30 had to be read in conjunction with the language in the agreement in [sic] 2.7.3.2." Mr. Jewell acknowledged that vendors had the opportunity to ask questions prior to the submittal of their proposals to the Department and that Sprint did not ask any questions regarding the relationship between Sections 7.30 and 7.32 of the RFP. A letter written by Paul Eide, Customer Care Manager for Sprint, and faxed to the Department on November 21, 2000, after the opening of the proposals, stated in pertinent part: In response to the RFP, we found the liquidated damages section to [sic] vague and confusing to the exact dollar amount of a penalty situation. Our intentions were to point out the ambiguity and merely cap the amount so the winning vendor was not liable for an infinite amount of money. Although Sprint requested permission from the Department to remove the $100,000 cap on liquidated damages after the opening of the proposals, the Department did not permit Sprint to do so. Genanne Wilson, a purchasing analyst in the Department's bureau of purchasing, was the person charged with reviewing the proposals for responsiveness. Ms. Wilson determined that Sprint did not meet the requirement of Section 5.1.2 and, therefore, failed to meet the mandatory responsiveness requirements of the RFP. That determination was confirmed by her bureau chief. As specified in Section 6.1 of the RFP, further evaluation was not performed on Sprint's proposal. The evidence submitted by Sprint is not sufficient to establish that Sprint's proposal was responsive. Rather, the evidence establishes that Sprint chose to alter or modify the Supplemental Proposal Sheets even though those who submitted proposals were advised in Sections 5.1 and 6.1 that failure to meet any of the mandatory responsiveness requirements would render a proposal non-responsive and result in rejection of the proposal and that further evaluation would not be performed. Sprint's failure to signify its understanding and agreement to Section 7.30 by initialing the supplemental proposal sheets without more resulted in a failure to meet the mandatory requirement in Section 5.1.2. Sprint's failure to meet the mandatory requirement constitutes a material deviation from the RFP. The Department's determination that Sprint's proposal was non-responsive was consistent with the clear, express language of the RFP which informed proposers of mandatory requirements and that proposals found to be non- responsive would not be further evaluated. Sprint's proposal was not responsive to the RFP because it failed to meet a mandatory requirement and it contained a material deviation. Both defects arise from Sprint's attempt to limit its exposure to liquidated damages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Corrections enter a final order dismissing the bid protest filed by Sprint. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 6th day of April, 2001.
The Issue Whether the Petitioner, Gina M. Hunton, filed her request for a formal administrative hearing within the time required by Rule 22T-9.008(1), Florida Administrative Code.
Findings Of Fact Pleadings. The Petitioner, Gina M. Hunton, filed a Charge of Discrimination against Southern Bell Telephone and Telegraph Company (hereinafter referred to as "Southern Bell"), with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"), alleging that Southern Bell had discriminated against her on the basis of sex. On October 11, 1991, the Commission entered a Notice of Determination: No Cause, concluding that there was no reasonable cause to believe that Southern Bell had committed an unlawful employment practice against Ms. Hunton. On January 27, 1992, the Commission entered a Notice of Redetermination: No Cause, (hereinafter referred to as the "Notice") again concluding that there was no reasonable cause to believe that Southern Bell had committed an unlawful employment practice against Ms. Hunton. In the Notice Ms. Hunton was informed of the following: The parties are hereby advised that the Complainant may request that a formal, post- investigative proceeding be conducted. Any Request for Hearing/Petition for Relief must be filed within 30 days of the date of this Notice and should be in compliance with the provisions of Rule 22T-9.008 and Chapter 22T-8, Florida Administrative Code. . . . On June 15, 1992, Southern Bell filed a Motion to Dismiss Ms. Hunton's Petition because it had not been timely filed. No response to the motion was filed by Ms. Hunton on or before June 29, 1992. On July 1, 1992, an Order Granting Motion to Dismiss, Cancelling Final Hearing and Establishing Deadlines was entered by the undersigned. The deadlines established in the Order were July 13, 1992, for the filing of proposed recommended orders and August 3, 1992, for the entry of a recommended order of dismissal in this case. On July 20, 1992, more than two months after the motion to dismiss was filed, and after Southern Bell had filed a proposed recommended order, Ms. Hunton filed a Response to Motion to Dismiss. On July 29, 1992, an Order to Show Cause was entered by the undersigned. In the Order to Show Cause, Southern Bell was given an opportunity to show cause why the motion to dismiss should not be denied in light of Ms. Hunton's explanation of why she had not filed her request for a formal administrative hearing timely. On August 10, 1992, Southern Bell filed a Renewed Motion to Dismiss and Response to Order to Show Cause. Southern Bell argued in the response that the doctrine of equitable tolling should not be applied in this case. No response to the renewed motion to dismiss was filed by Ms. Hunton. On August 17, 1992, a Second Order of Dismissal was entered. In the Second Order the parties were informed that the undersigned intended to grant the renewed motion to dismiss and recommend dismissal of this matter. On September 1, 1992, Ms. Hunton filed a Supplement to Response to Motion to Dismiss. For the first time Ms. Hunton alleged certain facts and gave a further explanation for why she had not timely filed her request for formal hearing in this matter. On September 8, 1992, Southern Bell filed Southern Bell's Reply to the Petitioner's Supplement to Response to Motion to Dismiss. Ms. Hunton's Failure to Timely File Her Petition. Thirty days from the date of the Notice, January 27, 1992, was Wednesday, February 26, 1992. Although Ms. Hunton was referred by the Commission in the Notice to the appropriate rule governing the time for filing a petition for relief, she was not specifically told that to "file" a petition meant that it had to be received by the Commission. Based upon Ms. Hunton's first response to Southern Bell's motion to dismiss, Ms. Hunton believed that she was only required to "serve" or mail her request for hearing within 30 days of the date of the Notice. According to her first response, Ms. Hunton also believed that "30 days" meant "one month". Ms. Hunton further believed that "one month" meant that she had until the same date (the 27th) of the next month (February) that the Notice was dated to mail her petition for relief. Based upon these conclusions, Ms. Hunton assumed that she had until February 27, 1992 to mail her petition for relief: I received a NOTICE OF REDETERMINATION: NO CAUSE on January 30, 1992 which was dated January 27, 1992 and postmarked (mailed) January 28, 1992 (Attachment A). The Notice of Redetermination states 'any request for Hearing/Petition for relief must be filed within 30 days of the date of Notice', my interpretation being one month from January 27, 1992, specifically February 27, 1992. [Emphasis added]. Even though it may have been reasonable for Ms. Hunton to assume that "filed" meant to "mail" her request for hearing, her interpretation of the time within which she was required to "mail" her response was not reasonable. The Notice informed Ms. Hunton that she had "30 days" to act. Even an unrepresented party should understand that "30 days" means just that. By counting 30 days from January 27, 1992, on a calendar, Ms. Hunton should have realized that she had to act no later than February 26, 1992. It was unreasonable for Ms. Hunton to interpret the terms "30 days" to mean a month, and that a month from January 27, 1992, meant February 27, 1992. On Thursday, February 27, 1992, Ms. Hunton spoke to Mr. Hardin King, an employee of the Commission (incorrectly identified as an employee of the Federal Commission on Human Relations by Ms. Hunton). Ms. Hunton telephoned the Commission in an effort to get an extension of time to file her request for hearing. At the time of this conversation, Ms. Hunton had already determined that she was required to mail her request no later than February 27, 1992. Although Mr. King reinforced this conclusion by failing to properly inform Ms. Hunton that her request for hearing was required to be received (filed) no later than February 26, 1992, the fact is that Ms. Hunton had already unreasonably concluded that she was not required to mail her request for hearing until February 27, 1992, and she had already failed to at least mail her request for hearing on February 26, 1992. Therefore, Ms. Hunton's error in this matter was not made in reliance on anything that Mr. King told her. The error had already occurred before her conversation with Mr. King. After speaking to Mr. King on February 27, 1992, Ms. Hunton mailed a Petition for Relief (hereinafter referred to as the "Petition"), to the Commission. A copy of the Petition was also mailed to Southern Bell. The Petition was not received (filed) by the Commission until Monday, March 2, 1992. The Petition was not filed by Ms. Hunton within 30 days of the date of the Notice. It was filed 35 days after the date of the Notice. Giving Ms. Hunton the benefit of the doubt concerning her lack of understanding as to the meaning of the term "filed" and assuming that Ms. Hunton was reasonable in concluding that "filed" meant to mail, Ms. Hunton still did not mail her request for hearing within 30 days of the date of the Notice. Therefore, even accepting Ms. Hunton's explanation of how she interpreted the term "file", Ms. Hunton's Petition was not timely filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief of Gina M. Hunton, as untimely filed. DONE and ENTERED this 29th day of October, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 29th day of October, 1992. COPIES FURNISHED: Gina M. Hunton 4929 Fauna Drive Melbourne, Florida 32934 E. Barlow Keener, Esquire Francis B. Semmes, Esquire Southern Bell Telephone and Telegraph Company Suite 4300 675 West Peachtree Street, N.E. Atlanta, Georgia 30375 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32303-4113
The Issue Whether Petitioner violated Rules 25-24.512 and 25-24.515, Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Wilberth Gaviria, owns Gaviria, which is a pay telephone service provider in Miami, Florida, and which holds Certificate No. 3320 from the Florida Public Service Commission (Commission) issued on April 12, 1993. Wilberth and Heiner Gaviria jointly owned a company named South Telecommunications, Inc. (STI). Rule 25-24.511(4), Florida Administrative Code, restricts a pay telephone provider to a single certificate. In March 1996, the Commission denied STI's application for a certificate to provide public pay telephone service because Wilberth Gaviria held major ownership interests in both Gaviria and STI and a certificate had been issued to Gaviria. The Commission also denied STI's application because the Commission determined that STI had willfully misrepresented that it was not providing pay telephone service without a certificate. In May, 1995, the Florida Pay Telephone Association forwarded to the Commission a complaint from Liberty Tel. Inc. (Liberty), a pay telephone service provider in Miami. Liberty alleged that STI, although not issued a certificate by the Commission, was soliciting location owners under contract with Liberty. Liberty alleged that it had received seven letters from an agent of STI, advising that STI had entered into contracts with seven location owners alleged to be under contract with Liberty and requesting that Liberty remove its pay telephones from those locations. In response to the letters, Liberty advised the seven location owners of their contractual obligations to Liberty. Liberty also alleged in its complaint that it had checked three Gaviria pay telephones and found the following violations: local calls were limited to ten minutes for twenty-five cents; charges in excess of tariff for the Miami-Fort Lauderdale extended calling plan; 0+ calls were not routed to the local exchange company; incoming calls were blocked; the 211 repair message was incomplete; and STI nameplates were on the telephones. On October 23, 1995, the Commission received a complaint from Alberto Menendez of Alberto and Sons Meat Market in Miami, alleging that STI failed to return telephone calls concerning two pay telephones which were damaged and out of operation, failed to respond to messages requesting repair, failed to remove the telephones from Mr. Menedez's property until five weeks after a request to do so, and failed to restore the premises to a reasonable condition after removing the telephones. As a result of the complaints from Libery and Mr. Menendez, the Commission staff conducted four field evaluations, beginning in June, 1995. The Commission staff conducts field service evaluations of pay telephones in Florida using a checklist consisting of the following 29 criteria/violations: Telephone was not in service. Telephone was not accessible to the physically handicapped. Telephone number plate was not displayed. Address of responsible party for refunds/repairs was not displayed. Coin-free number for repairs/refunds did not work properly. Current directory was not available. Extended Area Service and Local calls were not $.25 or less. Wiring not properly terminated or in poor condition. Address of pay telephone location was not displayed. Instrument was not reasonably clean. Enclosure was not adequate or free of trash. Glass was chipped or broken. Insufficient light to read instructions at night. Name of provider (as it appears on the certificate) was not displayed. Local Telephone Company responsibility disclaimer was not displayed. Clear and accurate dialing instructions were not displayed. Statement of services not available was not displayed. Automatic coin return function did not operate properly. Incoming calls could not be received/or bell did not ring loud enough. Direct coin free service to the local operator did not work. Direct coin free service to local Directory Assistance did not work. Access to all available interexchange carriers was not available. Coin free service to 911 did not work. 911 could not verify the street address of the pay phone. Transmission was not adequate or contained noise. Did not comply with 0+ interLATA Toll rate cap - AT and T + opr. chg + $.25. Combinations of nickels and dimes did not operate correctly. Dial pad did not function after call was answered. 0 + area code + local number did not go to LEC operator as required. Hereinafter, these violations will be referenced by the number preceding each violation. For example, telephone not in service will be referenced as "1." On June 7, 1995, Ralph King, an evaluator for the Commission evaluated Gaviria pay telephone number 305 751 8327 and found the following violations: 1, 3, 4, 6, 9, 13, and 14. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 8523 and found the following violations: 3, 4, 6, 8, 9, 14, 15, and 16. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 633 9237 and found the following violations: 3, 4, 5, 6, 7, 9, 10, 15, 16, 19, 22, and 29. On June 9, 1995, Mr. King evaluated Gaviria pay telephone number 305 920 9902 and found the following violations: 2, 3, 4, 5, 6, 7, 9, 15, 16, 19, 21, and 22. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 854 9684 and found the following violations: 3, 4, 5, 6, 7, 9, 14, 15, 16, 22, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 854 9087 and found the following violations: 4, 5, 6, 7, 9, 14, 15, 16, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 324 9023 and found the following violations: 6, 9, 14, 15, 16, 22, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 350 9020 and found the following violations: 1, 4, 5, 6, 9, 13, 14, 20, 22, 23, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 350 9096 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 15, 16, 19, 22, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 573 8079 and found the following violations: 3, 4, 5, 6, 7, 9, 19, 22, 27, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 8248 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 19, 22, and 29. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 8378 and found the following violations: 1, 3, 4, 5, 6, 7, 9, 13, 14, 16, 19, and 29. On June 6, 1995, Mr. King evaluated Gaviria pay telephone number 305 883 8281 and found the following violations: 4, 5, 6, 9, 13, 14, and 15. On June 6, 1995, Mr. King evaluated Gaviria pay telephone number 305 261 9899 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 15, 16, and 19. On June 8, 1995, Mr. King evaluated Gaviria pay telephone number 305 673 9337 and found the following violations: 4, 5, 6, 7, 9, 13, 22, and 29. On June 8, 1995, Mr. King evaluated Gaviria pay telephone number 305 673 9125 and found the following violations: 4, 5, 6, 7, 9, and 29. On June 8, 1995, Mr. King evaluated Gaviria pay telephone number 305 221 9671 and found the following violations: 4, 5, 6, 11, and 17. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9731 and found the following violations: 4, 6, 14, 15, 16, 22, and 29. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9467 and found the following violations: 4, 5, 6, 7, 14, 19, 21, 22, and 29. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9433 and found the following violations: 4, 5, 6, 14, 22, and 29. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9087 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 15, 16, 17, 19, 22, and 29. On June 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 861 9041 and found the following violations: 4, 5, 6, 7, 14, 15, 16, 19, 22, 27, and 29. On June 14, 1995, Mr. King evaluated Gaviria pay telephone number 305 685 9345 and found the following violations: 4, 5, 6, 7, 14, 15, 16, 19, 22, 27, and 29. On June 14, 1995, Mr. King evaluated Gaviria pay telephone number 305 685 9342 and found the following violations: 4, 5, 6, 7, 9, 14, 15, and 16. The Commission staff advised Gaviria of the June, 1995 service evaluation results on June 14, 1995 by regular mail (File Nos. TE793.9501, TE793.9502), on July 11, 1995, by certified mail (File Nos. TE793.501, TE793.9502), on July 12, 1995 by regular mail (File No. TE793.9503), on August 4, 1995, by certified mail (File No. TE793.9503), each time requiring a response within 15 days and corrective measures. Gaviria did not respond to the June 14, 1995 and July 12, 1995, letters or to the July 11, 1995 and August 4, 1995 follow-up letters. On August 9, 1995, Commission staff transmitted the June 14, 1995, July 11, 1995, July 12, 1995, and August 4, 1995 letters to Gaviria by facsimile and advised Gaviria that it appeared to be in violation of the Commission's rule to report changes in circumstances. On August 10, 1995, Commission staff advised counsel for Gaviria that the letters had been transmitted to Gaviria by facsimile and that Gaviria had stated that it would respond by August 21, 1995. Additionally, Commission staff advised counsel for Gaviria that they would consider recommending that the Commission initiate a show cause proceeding if Gaviria's response was not satisfactory and timely. On August 14, 1995, Gaviria responded to File No. TE793.9501. The response consisted of 56 admissions, 45 claims of vandalism without substantiation, 14 denials without substantiation, and 4 claims that the line was going to be transferred. Commission staff considered the response unsatisfactory. On August 21, 1995, Gaviria responded to File No. TE793.9503. The response consisted of 3 admissions, 42 denials without substantiation, and 1 claim that the line was going to be transferred. Commission staff considered the response unsatisfactory. On September 6, 1995, Commission staff advised counsel for Gaviria that, according to Southern Bell, the four lines Gaviria claimed were going to be transferred in response to File No. TE793.9501 were still assigned to Gaviria's certificate. Commission staff also advised counsel for Gaviria that Gaviria had misinterpreted the Commission's directory availability rule, that it had erroneously responded to the Commission's directory access rule, and that telephone number 305 751 9087 did not have required signage. Counsel was also advised of the procedure required to obtain certification for STI. In September 1995, Commission evaluator King returned to Miami and evaluated 39 Gaviria pay telephones, 19 of which had been evaluated in June, 1995. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 8523 and found the following violations: 4, 6, and 13. On September 11, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 920 9902 and found the following violations: 2, 6, 7, 9, 11, and 19. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 350 9020 and found the following violations: 4, 6, 8, 9, and 24. On September 14, Mr. King re-evaluated Gaviria pay telephones numbered 305 751 8327, 305 350 9096 and 305 751 8378 and found violations 4 and 6 at each of the telephones. On September 13, Mr. King re-evaluated Gaviria pay telephones numbered 305 751 8248, 305 673 9125, and 305 673 9337 and found violations 4 and 6 at each of the telephones. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 883 8281 and found the following violations: 4, 6, 7, 9, and 13. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 261 9899 and found the following violations: 6, 7, 9, 13, and 19. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 221 9671 and found violations 6 and 7. On September 13, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 9732 and found the following violations: 4, 6, and 9. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 9467 and found the following violations: 4, 6, 9, and 20. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 9433 and found the following violations: 4, 6, and 9. On September 13, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 751 9087 and found the following violations: 4, 6, and 13. On September 12, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 861 9041 and found the following violations: 4, 6, and 27. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone number 305 685 9341 and found the following violations: 6, 7, and 9. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9848 and found the following violations: 4, 6, and 19. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 8994 and found violations 4 and 6. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9763 and found the following violations: 2, 4, 6, and 14. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9860 and found the following violations: 4, 6, 19, and 24. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number 305 751 9992 and found the following violations: 4, 6, and 19. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 573 9320 and found the following violations: 2, 6, 13, 14, 15, 16, 17, and 19. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 867 9725 and found the following violations: 3, 4, 6, 9, 13, 14 and 19. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 868 9167 and found the following violations: 3, 4, 6, 9, 13, 14, 15, and 19. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 868 9727 and found the following violations: 4, 6, 9, 13, 19, and 24. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 868 9823 and found the following violations: 4, 6, 13, 19, and 24. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number 305 868 9357 and found the following violations: 4, 6, 9, 19, and 24. On September 14, 1995, Mr. King evaluated Gaviria pay telephones numbered 305 751 9906 and 305 751 9778 and found the following violations for each telephone: 2, 4, and 6. On September 14, 1995, Mr. King evaluated Gaviria pay telephones numbered 305 751 8906 and 305 573 9876 and found violations 4 and 6 at each telephone. On September 15, 1995, Mr. King evaluated Gaviria pay telephones numbered 305 691 9068 and 305 694 9415 and found violations 4 and 6 at each telephone. On September 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 693 9451 and found violation 4. On September 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 694 9415 and found the following violations: 4, 6, 9, 13, and 24. On September 15, 1995, Mr. King evaluated Gaviria pay telephone number 305 883 9851 and found the following violations: 2, 6, 7, and 9. Commission staff advised Gaviria of the September 1995 service results on September 20, 1995 by regular mail (File Nos. TE793.9504, TE793.9505, TE793.9506, TE793.9507), requiring a response within 15 days and corrective measures. On October 2, 1995, counsel for Gaviria wrote to Commission staff stating that Gaviria had been unable to discover the majority of violations upon inspection and that Gaviria believed that the evaluator was intentionally misstating the condition of the telephones. In his letter to Commission staff, counsel for Gaviria suggested a meeting with the evaluator and his supervisor. It was left for counsel to arrange for the meeting, but he did not do so. In November, 1995 two other Commission evaluators conducted an evaluation of two Gaviria pay telephones, one of which had been evaluated previously. For each of the telephones, the evaluators found violations 4 and 6. Commission staff advised Gaviria of the November, 1995 evaluation results on November 14, 1995, by regular mail (File No. TE793.95080), requiring a response within 15 days and corrective measures. On November 26, 1995, Gaviria timely responded to the November 14, 1995 letter; however his response consisted of denials without substantiation. Commission staff considered the response unsatisfactory. On February 8, 1996, Commission staff filed a recommendation that the Commission order Gaviria to show cause why it should not have its certificate revoked or be fined for violations of Commission rules. On March 20, 1996, the Commission issued Order No. PSC-96-0388-FOF-TC, in which it ordered Gaviria to show cause why it should not be fined or why the Commission should not revoke its certificate for violations of Rules 25-24.512 and 25-24.515, Florida Administrative Code. On April 9, 1996, Gaviria timely filed an answer and petition to initiate formal proceedings before the Commission. In March, 1996, Mr. King returned to Miami to re-evaluate Gaviria pay telephone number 305 861 9041 and found the following violations on March 15, 1996: 4, 6, 14, 15, 26, and 29. Commission staff advised Gaviria of the March, 1996 service evaluation results on March 20, 1996, by regular mail (File No. TE793.9601), requiring a response within 15 days and corrective measures. On March 31, 1996, Gaviria timely responded to the March 20, 1996 letter by making denials without substantiation. Commission staff considered the response unsatisfactory. In October 1996, Commission evaluator Chester Wade went to Miami to re-evaluate 23 of Gaviria's pay telephones. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 633 9237 and found the following violations: 1, 3, 6, 9, 14, and 19. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 751 9433 and found the following violations: 6, 9, 11, and 14. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 691 8180 and found the following violations: 2, 6, and 14. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 868 9357 and found the following violations: 6, 9, 14, and 24. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 751 9467 and found the following violations: 6, 14, and 20. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 854 9087 and found violations 6 and 14. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephones numbered 305 751 9732; 305 751 8327; 305 751 8900; 305 751 9906; 305 751 9778; 305 751 8378; 305 573 9876; 305 673 9125; 305 673 9337; 305 861 9041; 305 868 9823; and 305 868 9727 and found violations 6 and 14 for each of the telephones. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephones numbered 305 854 9684; 305 693 9451; 305 694 9415; and 305 691 9068 and found violations 6 and 14 at each telephone. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephone number 305 751 9087 and found the following violations: 6, 14, and 20. Commission staff advised Gaviria of the October 1996 service evaluation results on November 6, 1996, by regular mail (File Nos. TE793.9603 and TE793.9604), requiring a response within 15 days and corrective measures. On November 20, 1996, Gaviria timely responded to the letter. The response consisted of 31 denials without substantiation; 23 claims of vandalism without substantiation, 2 admissions, and 1 inaccurate claim of ownership. Commission staff considered the response to be unsatisfactory. Commission Staff performed five separate field service evaluations on 38 Gaviria pay telephones, finding a total of 439 violations. Of that total, twenty percent were repeated violations. Contrary to its assertions, Gaviria placed no orders for telephone directories to Bell South Telecommunications in the period June 6, 1995 to September 15, 1996. Gaviria transferred telephones 305 920 9902; 305 883 8281; 305 262 9899; 305 221 9671; and 305 685 9342 only on September 18, 1995, following the Commission's September 1995 evaluation and even then without correcting the violations as it had claimed. The Commission revokes approximately 90 certificates for public convenience and necessity each year for violations as comparatively minor as a failure to pay regulatory assessment fees or to notify the Commission of a change of location. Therefore, to revoke Gaviria's certificate for its more than 425 violations on 38 telephones over a period of 16 months would be proportionate to the offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Wiberth Gaviria has willfully violated Rule 25-24.515, Florida Administrative Code and that his certificate of public convenience and necessity Certificate No. 3320 be revoked. DONE AND ENTERED this 17th day of January, 1997 in Tallahassee, Leon County, Florida. 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 17th day of January, 1997. COPIES FURNISHED: Charles J. Pellegrini, Esquire Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Wlberth Gaviria 6156 Southwest 133rd Place Miami, Florida 33183-5131 Blanca Bayo Director of Records and Recording Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 William D. Tallbott, 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 in this case is whether Respondent, a noninstructional employee of Petitioner's, should be fired for theft.
Findings Of Fact At all times material to this case, Respondent Osmel Gonzalez-Escalona ("Gonzalez") was a custodian in the Palm Beach County School District ("District"), assigned to work at Berkshire Elementary School ("Berkshire"). Petitioner Palm Beach County School Board ("School Board") operates the schools within the District and has authority over all District personnel, including Gonzalez. As a noninstructional employee of the District, Gonzalez was subject to the collective bargaining agreement entered into between the School Board and the Service Employment International Union, Florida Public Services Union ("SEIU"). Elsa Ramon was a teacher at Berkshire during the 2007- 08 school year. Gonzalez cleaned her classroom as part of his regular duties. Some time in May 2008, Mrs. Ramon realized that she had not seen her cellular phone since using it on May 6 to call her husband. She recalled having placed a call to her husband that morning and leaving the phone on a table in her classroom. Because Mrs. Ramon did not use her phone frequently, she initially thought she had simply lost or misplaced it. When the phone did not turn up after a diligent search, Mrs. Ramon and her husband obtained a replacement phone from their carrier, T-Mobile. Mrs. Ramon's existing number was assigned to the replacement cell phone. Mrs. Ramon immediately began receiving calls on the new phone for a woman whose name she did not recognize. The frequency of these calls caused Mrs. Ramon to suspect that someone was using her old phone. She and her husband went to the T-Mobile store to report their concern about this possibility. They learned that a huge bill of approximately $3,300 had been run up on Mrs. Ramon's account, the result of numerous phone calls, including many international calls to persons in Cuba. T-Mobile promptly deactivated the phone number; it had been used without Mrs. Ramon's permission for about two weeks. Although Mrs. Ramon had not placed the many, expensive phone calls that produced the charges totaling several thousand dollars, T-Mobile nevertheless demanded that she pay the bill, pursuant to the contract between them. After some negotiation, T-Mobile reduced the charges to about $2,600, which Mrs. Ramon paid. Meantime, on June 2, 2008, Mrs. Ramon reported the theft of her cell phone to the School Police Department, because she believed that the phone had been taken from her classroom. After an investigation that lasted several months, the school police identified Gonzalez as the culprit. On October 3, 2008, Gonzalez was arrested on a charge of grand theft. On January 23, 2009, Gonzalez pleaded guilty, in the Circuit Court in and for Palm Beach County, to grand theft, a third-degree felony. He was sentenced to 12 months' probation and ordered to make restitution to Mrs. Ramon. As of the final hearing in this case, Gonzalez had reimbursed Mrs. Ramon for the loss she had incurred as a result of his unlawful use of her cell phone. At the hearing, Gonzalez admitted using Mrs. Ramon's phone, without her permission, to call friends and family in Cuba and other places. He denied having stolen the phone, however, claiming that he had found it in a store. The undersigned rejects this claim, which is not really exculpatory in any event, as being too implausible to believe. The simplest and best explanation for Gonzalez's having come into unauthorized possession of the cell phone of a teacher whose classroom he regularly entered for work related reasons, which phone was last seen and used by its rightful owner in said classroom, is that Gonzalez himself took the phone from the classroom. This, the undersigned finds, is almost certainly what occurred. Assuming Gonzalez's testimony about finding the phone were credible, however, which it was not, the undisputed fact remains that Gonzalez stole lots of expensive airtime, running up a bill of more than three thousand dollars in just two weeks by making numerous international phone calls, among others, for which Mrs. Ramon was liable. Thus, even in Gonzalez's telling, he committed a crime (to which he pleaded guilty), albeit one whose victim was a stranger rather than a co-worker. Ultimate Factual Determinations Gonzalez stole property from a teacher in whose classroom he worked as a custodian. As a result of this criminal behavior, he was arrested and accused of committing felony grand theft, a charge to which he eventually pleaded guilty. Having admitted to the commission of a felony that victimized an employee of the District, Gonzalez has given the School Board just cause to terminate his employment. Therefore, it is determined that the School Board has sustained its burden of proving, by clear and convincing evidence, the allegations forming the basis for dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing Gonzalez from his position as a custodian in the Palm Beach County School District. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 3rd day of December, 2009.
