The Issue The issue is whether Respondent properly awarded a contract for automated payment options to E-Commerce Group, a non-party.
Findings Of Fact Respondent is a local governmental body, corporate and politic, organized pursuant to Chapter 2001-324, Laws of Florida. Respondent is responsible for providing certain water, wastewater, and sanitation services in Escambia County, Florida. Petitioner is a Florida for-profit corporation. It is organized and authorized to do business under Florida Law. Currently, Respondent offers its utility customers several different types of payment options, including the following: (a) over-the-counter payments; (b) drive-in payment; (c) mail-in payments; (d) automatic bank drafts; and (e) in-person payments. In May 2002, Respondent released Request for Proposal (RFP) 2002-36. Through the RFP, Respondent was seeking the lowest and most responsible proposal for automated payment options for Respondent's utility customers. According to the RFP, the vendors needed to be capable of providing Internet and telephone payment options so that Respondent's customers could use their credit cards to pay their utility bills. The RFP stated that the sealed bids would be opened on June 27, 2002. Section 1, the administrative section of the RFP, provides the following information regarding Respondent's operations as of September 30, 2001: (a) Respondent served 85,000 water customers; (b) Respondent served 55,800 sewage collection and treatment system customers; (c) Respondent served 59,900 solid waste customers; (d) Respondent generates approximately $64,000,000 in revenue per year; and Respondent's average residential bill is $60. Section 2 of the RFP discusses Respondent's current management information system. This section states that Respondent needed to "know about and understand all the costs and changes necessary to implement the solution proposed." Section 3 of the RFP requests information about the vendor. This section includes a vendor questionnaire and request for information about the vendor's prior customers. Section 4 of the RFP sets forth the project requirements. Of particular note is the following reference to a convenience fee in Section 4.1: Convenience Fee Since the convenience fee is the method the vendor will [use to] generate compensation for this service, ECUA requires the rate (fixed or sliding) to be fixed for the duration of the contract. You may propose a sliding scale for lowering or raising the fee based upon use of the solution once a preliminary period has expired (the preliminary period to be set in vendor's contract). Section 4.3 of the RFP sets forth the project considerations. A cost-effective and timely solution is listed as one of six considerations. Section 5 of the RFP sets forth the requirements for vendor responses. Section 5.3 includes the following evaluation criteria: These criteria are to be utilized in the evaluation of qualifications for development of the shortlist of those vendors to be considered by interviews and/or potential negotiations. Individual criteria may in all probability be assigned varying weights at the ECUA's discretion to reflect relative importance. Vendors are required to address each evaluation criteria in the order listed and to be specific in presenting their qualifications. (Emphasis added) Experience/qualifications of Vendor. Vendors (sic) proposed staff, experience with contracts for services similar in scope. Capabilities, features, etc. of the proposed services and the degree to which the proposed services meet the needs of the ECUA. References of only similar contracts. The Vendor must have a demonstrative history of professional, reliable and dependable service. Demonstrated quality assurance procedures and schedule to insure a timely, effective and professional provision of services. Costs. Section 5.4 of the RFP discusses the process for scoring responses. It provides as follows in relevant part: Selection Procedure Selection shall be made of two or more vendors deemed to be fully qualified and best suited among those submitting proposals. The selection will be made on the basis of the factors involved in the Request for Proposal, including price if so stated in the Request for Proposal. Selected vendors will then conduct a presentation to the selection committee. After all presentations are made the selection committee will select the vendor which, in its opinion has made the best proposal and make a recommendation to ECUA's Board. ECUA's Board will award a contract to that vendor. Should the ECUA determine that only one vendor is fully qualified or that one vendor is clearly more highly qualified than the others under consideration, the presentation phase may be skipped. (Emphasis added) * * * Basis for Award Information and/or factors gathered during the interviews and any reference checks, in addition to the evaluation criteria stated in the RFP, and any other information or factors deemed relevant by the ECUA, shall be utilized in the final award. Section 6 of the RFP sets forth the functional requirements. This section is not at issue here. Section 7 of the RFP is entitled "Cost Summary." Section 7.1 includes the proposal form, which states as follows in relevant part: ITEM A - Customer Convenience Fee: ITEM B - Set Up Cost: ITEM C - Other (explain): The RFP does not have a section for definitions. It does not define the term "cost" other than as set forth above. The following four vendors submitted timely proposals to Respondent: (a) E-Commerce Group; (b) Petitioner; (c) Link2Gov Corp.; and (d) BillMatrix. The proposals were as follows: Vendor Name Customer Convenience Fee Setup Cost Other E-Commerce Group $2.95* for $1-$500 pymt. None N/A Optional E Bills fee $.35 per bill** Petitioner $2.50* per I/O, IVR & Web Trans. $3,750 Development hourly rate-- $75** $125 per unit swipe device Link2Gov Corp. $2.49 Internet/$2.89 IVR None $95.00 hosting fee per month BillMatrix $3.95 Per Credit Card Trans. None N/A E-Commerce Group: *If average payment more than $60, or if American Express payments to be accepted in addition to other major credit card associations, the convenience fee would be higher; no costs to ECUA for software use. **No other costs for using software, but if ECUA would like billing services, the fee per bill presented would be $0.35. Petitioner: *Will request review of convenience fee if average payment is more than $60 for three consecutive months. **To be charged only upon request from ECUA for specialized development tasks or if implementation requirements exceed est. setup costs, but only upon negotiation between parties. The proposals were initially reviewed by Respondent's finance department. In reviewing them, the director of finance recognized that the number of users of the automated payment option was unknown. However, Respondent's experience with other alternate payment options had generated very limited customer participation. Therefore, the director of finance concluded that it would be best if Respondent did not absorb a high set-up cost for a service that might have very limited use. Additionally, the director of finance believed it was in Respondent's best interest if the customers electing to use the automated payment option bore the fees and costs associated with those services, rather than having all ratepayers absorb this expense regardless of whether they were using it. Accordingly, the director of finance decided to recommend that Respondent select E-Commerce Group's proposal, as it was the lowest bid with no cost to Respondent. The director of finance's recommendation was presented to Respondent's finance advisory committee on July 16, 2002. The finance advisory committee is composed of members who are not Respondent's employees. After receiving the director of finance's recommendation, the committee members discussed which of the proposals were best for Respondent. Respondent's finance advisory committee decided to recommend that Respondent "select E-Commerce Group, the lowest bidder when considering there is no set-up cost to ECUA, as the vendor to provide these automated payment solutions, and enter into a one-year contract with an optional one-year extension." On July 25, 2002, Respondent considered the finance advisory committee's recommendation. During the meeting, Respondent's director of finance stated that approximately 13,000 people per year used credit card payment services to pay the Escambia County tax collector. There is no evidence that the director of finance had sufficient additional information to calculate the percent of the tax collector's customers that used credit cards. One of Petitioner's employees, John Parkin, also spoke at Respondent's July 25, 2002, meeting. He confirmed the number of people that pay the Escambia County tax collector using a credit card payment option provided pursuant to a contract between the tax collector and Petitioner. However, Mr. Parkin did not provide Respondent with any information about the percentage of taxpayers who availed themselves of this service. He provided no information to show how bills paid to Respondent and the tax collector were similar or dissimilar. During the meeting, Mr. Parkin stated that Petitioner would waive its $3,750 set-up costs. He did not otherwise attempt to explain how Petitioner's set-up costs could be amortized or recaptured over the first year of operation. Respondent did not allow Petitioner to amend its proposal to eliminate the $3,750 set-up costs. Instead, Respondent accepted the finance advisory committee's recommendation, awarding the contract to E-Commerce Group. Petitioner filed a timely protest. The finance advisory committee considered the protest in an informal hearing. During this proceeding, Petitioner had an opportunity to demonstrate why it should have been considered the lowest bidder. Respondent considered Petitioner's protest on October 24, 2002, in a regularly scheduled meeting. During the meeting, Respondent voted to refer the case to the Division of Administrative Hearings. Respondent acted within the requirements of the RFP when it determined that E-Commerce Group was the lowest responsible bidder primarily because there was no cost to Respondent to start the program. Respondent's RFP clearly indicated that set-up costs would be considered as one of the evaluation criteria. The RFP did not require Petitioner to designate any part of its proposed costs as set-up costs. Petitioner's set-up cost amortized over the estimated first year's transactions is approximately $2.63 per transaction. Additionally, it would take Respondent approximately 108 days (and over 8,000 transactions) to recapture the set-up costs by passing them along to the ratepayers. However, the RFP did not require Respondent to recalculate Petitioner's proposed costs using projected customer usage to amortize or recapture Petitioner's set-up costs before making a decision. In fact, Petitioner's proposal on its face did not indicate that Petitioner intended for Respondent to make such recalculations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order awarding the contract to E-Commerce Group. DONE AND ENTERED this 17th day of December, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 17th day of December, 2002. COPIES FURNISHED: Archibald Hovanesian, Jr., Esquire 21 East Garden Street, Suite 201 Pensacola, Florida 32501 Bradley S. Odom, Esquire Stephen G. West, Esquire Kievet, Kelly & Odom 15 West Main Street Pensacola, Florida 32501 Linda Iverson, Board Secretary Escambia County Utilities Authority Post Office Box 15311 Pensacola, Florida 32514
The Issue The primary issues in this case relate to whether Respondent, a licensed check cashing concern, failed to make and maintain various records documenting regulated financial transactions undertaken during a two-year audit period (2011- 2012), as Petitioner alleges. If Respondent is found guilty of any disciplinable offense(s), then it will be necessary to determine the appropriate penalties for such violation(s).
Findings Of Fact At all times relevant to this case, Respondent Greenland Food Market, Inc. (the "Market"), held a license to engage in the business of cashing payment instruments, such as checks, pursuant to chapter 560, part III, Florida Statutes. Bassam Dimiati is the Market's president and sole shareholder. Petitioner Office of Financial Regulation ("OFR" or the "Office") is the state agency charged with licensing and supervising money services businesses in Florida. Licensed check cashers, such as the Market, fall within the Office's regulatory and disciplinary jurisdiction. On at least one previous occasion, the Office imposed discipline against the Market for failing to maintain books and records.1/ On May 6, 2013, OFR conducted a routine on-site examination of the Market's records to evaluate the licensee's compliance with the statutes and rules governing the check cashing business. OFR had given the Market advance notice of the examination. The two-year period under review was from January 1, 2011, through December 31, 2012. The examiners found, and OFR proved at hearing, that the Market had not complied fully with the applicable record-creation and -retention requirements, as detailed below. Missing Identification Numbers Check cashers must maintain an electronic payment instrument log documenting each transaction involving a check in the amount of $1,000 or more. For each such transaction, the log must include, among other required information, the identification number——e.g., the Florida driver license number—— of the person seeking to cash the check, who is referred to formally as a "conductor."2/ The Market's log for 2012 lists 156 transactions. Of these, the conductor's identification number was not recorded 57 times, in violation of section 560.310(1)(c), Florida Statutes (2011),3/ and Florida Administrative Code Rule 69V- 560.704(5)(a). Thus, it is determined, as a matter of ultimate fact, that the Market is guilty as charged of failing to include identification numbers in its electronic payment instrument log. Missing Endorsements A licensed check cashing business is required to make and keep a legible, complete copy (including both sides) of every check accepted. Further, at the time the licensee accepts a payment instrument, the licensee must endorse the instrument using the legal name appearing on its license. Thus, if the licensee is fully compliant, the licensee's copy of each check cashed will show the requisite endorsement. The Market failed properly to maintain copies of every payment instrument received. Showing leniency, OFR allowed the Market to obtain copies of canceled checks from its bank, even though a licensee is not entitled to rely upon bank records as a substitute for the licensee's own records.4/ Out of 720 payment instruments retrieved from the bank, 280 lacked an endorsement, or at least a legible endorsement, in contravention of section 560.309(2) and rule 69V-560.704(2)(a). It is therefore determined, as a matter of ultimate fact, that the Market is guilty as charged of failing to endorse all payment instruments accepted during the period under review, or alternatively of failing to maintain a legible copy of each such check containing an identifiable facsimile of the endorsement. Missing Thumbprints For each payment instrument accepted having a face value of $1,000 or greater, the licensee must——at the time of acceptance——affix the conductor's original thumbprint to the original payment instrument, a copy of which must be maintained, as mentioned above. Of 720 payment instruments retrieved from the Market's bank, 38 exceeded $1,000. Only 23 of these checks bear a visible thumbprint, which means that the Market either accepted at least 15 checks without taking the required thumbprints, or alternatively failed to maintain legible copies of such prints, in violation of section 560.310(1)(b)2.5/ and rule 69V- 560.704(4)(a). Consequently, it is determined, as a matter of ultimate fact, that the Market is guilty as charged of failing to take, or alternatively of failing to maintain a legible copy of, a thumbprint of the customer in connection with every transaction involving a check having a face value of $1,000 or more. Missing Records of Fees Charged For each check accepted, the licensee must keep a record showing the fee charged to cash the payment instrument. The Market created, kept, and made available to the Office a record showing the fee charged for each check having a face amount of $1,000 or more, but it failed to maintain a record of the fees charged for cashing any other checks. Thus, when asked in writing on May 10, 2013, to produce "records that show the fee charged to customers for each payment instrument cashed prior to May 10, 2013," the Market responded that it could not provide additional documentation. On May 17, 2013, Mr. Dimiati signed a statement attesting that "[a]fter a diligent search" of all the Market's books and records, he was unable to locate the requested materials and had "no reasonable basis to believe" that information regarding the fees charged for cashing checks for amounts less than $1,000 would become available. Accordingly, it is determined, as a matter of ultimate fact, that the Market is guilty as charged of failing to maintain and produce records reflecting the fee charged to each customer for the service of cashing a check, in violation of rule 69V-560.704(2)(b). Missing Corporate Customer Files When accepting a check payable to a corporation, which is referred to as a "corporate payment instrument,"6/ the licensee must create and maintain a customer file on the payee if the amount of the check exceeds $1,000. This file must include: (i) documentation from the Secretary of State verifying registration as a corporation or fictitious entity and showing the officers and Federal Employer Identification Number; (ii) articles of incorporation or similar documentation; (iii) documentation of the occupational license; (iv) documentation from the Division of Workers' Compensation website showing proof of coverage; and (v) documentation of individuals authorized to negotiate payment instruments on the corporation or fictitious entity's behalf, including corporate resolutions or powers of attorney. See Fla. Admin. Code R. 69V-560.704(4)(d). During the period under review, the Market cashed corporate payment instruments in amounts exceeding $1,000 for Impact Collision and Main Line Trucking. On May 10, 2013, OFR submitted a written request for the Market's customer files on Impact Collision and Main Line Trucking. Mr. Dimiati replied that, after a diligent search, he was unable to locate in the Market's records all of the information relating to these customers that rule 69V-560.704(4)(d) requires be kept on corporate payees. The Market was unable to provide the following information about Impact Collision: (i) articles of incorporation or similar documentation; (ii) documentation of the occupational license; and (iii) documentation of individuals authorized to negotiate payment instruments on the corporation or fictitious entity's behalf, including corporate resolutions or powers of attorney. The Market was unable to provide the following information about Main Line Trucking: (i) documentation of the occupational license and (ii) documentation of individuals authorized to negotiate payment instruments on the corporation or fictitious entity's behalf, including corporate resolutions or powers of attorney. Consequently, it is determined, as a matter of ultimate fact, that the Market is guilty as charged of failing to maintain a complete customer file, i.e., one meeting all of the requirements prescribed in rule 69V-560.704(4)(d), for each corporate entity named as the payee in a corporate payment instrument, in violation of section 560.310(1)(a), Florida Statutes (2011).7/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Office of Financial Regulation enter a final order finding Greenland Food Market, Inc., guilty of the offenses charged in the Amended Administrative Complaint. It is further RECOMMENDED that the Office impose a fine against the Market in the amount of $10,500 and suspend its license for a period of 30 days. DONE AND ENTERED this 17th day of September, 2014, in Tallahassee, Leon County, Florida. S 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 17th day of September, 2014.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a seller of business opportunities registered with the Petitioner, holding registration number 2000-054, and located at 3101 Twenty-Second Avenue South, St. Petersburg, Florida 33712. The Respondent was the successor in interest to American Cash Machine, Inc., and is responsible for fulfilling the obligations of the previous company. At all times material to this case, Gilbert B. Swarts was the president and chairman of the board of the Respondent. On July 8, 2005, the Respondent entered into a contract with Bonnie Campbell as trustee of the Campbell Family Trust (purchaser) under which the purchaser agreed to purchase 36 "CardPayment" machines from the Respondent, and the Respondent agreed to place the machines in appropriate business locations on behalf of the purchaser. As required by the contract, the purchaser paid a total of $135,000 by check to the Respondent. At the time of the sale, the Respondent provided a disclosure form to the purchaser which stated that 200 "CardPayment Business Opportunities" had been sold by the Respondent to other purchasers by the end of 2005 and that 25 "Internet Kiosk Business Opportunity [sic]" had been sold by the Respondent to other purchasers by the end of 2002. The disclosure form also stated that the Respondent would provide to the purchaser, the names, addresses, and telephone numbers of the ten purchasers located closest to the purchaser; however, the disclosure form did not include the information, and the Respondent did not otherwise provide the information to the purchaser. The Respondent stocked the 36 CardPayment machines, but failed to acquire business locations for all of the machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 36 CardPayment machines identified in the contract to 18 Internet Kiosk machines. The Respondent was subsequently unable to acquire business locations for all of the Internet Kiosk machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 18 Internet Kiosk machines to 18 "Smart Terminal" machines. The CardPayment machines, Internet Kiosk machines, and Smart Terminal machines are different types of machines, and each type has a usage different from the others. The terms of the contract executed between the parties did not provide for the substitution of various machines upon failure by the Respondent to place the machines into operation. The contract required the Respondent to rebate a portion of the sales price for each month during which each CardPayment machine was not placed for operation. No contract for the purchase of either the Internet Kiosk or the Smart Terminal machines was executed by the parties. The disclosure information provided by the Respondent to the purchaser related to the Internet Kiosk machines was insufficient to comply with the statutory requirements addressed herein. No disclosure information related to the Smart Terminal machines was provided by the Respondent to the purchaser.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding that the Respondent has violated Subsections 559.803(11)(a) and (b) and 559.809(11), Florida Statutes (2005); imposing an administrative fine of $10,000; and placing the Respondent on probation for a period of three years subject to such conditions as the Department deems appropriate. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 8th day of February, 2008. COPIES FURNISHED: Eric H. Miller, Esquire Department of Agriculture and Consumer Services 2005 Apalachee Parkway Tallahassee, Florida 32301 Gilbert B. Swarts American Cash Machine, LLC 535 Twenty-Second Street South St. Petersburg, Florida 33712 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact Respondent DeBellonia is president of Respondent CGFS, Inc. At all times material to these proceedings, the Respondents were business consultants who assisted their clients with the preparation and presentation of information for private lenders who were interested in making business loans. Their business offices were located at North Rocky Point Drive, Suite 800, Tampa, Florida. In late July or early August 1989, Constance J. Jones responded by telephone to an advertisement placed by Respondents in the Tampa Tribune newspaper. The ad communicated to her that the Respondent CGFS, Inc. was interested in providing business financing to new and established businesses. Upon receipt of the telephone call, a secretary at CGFS, Inc. scheduled an appointment for Mrs. Jones with Respondent DeBellonia for August 7, 1989. Mrs. Jones was excited about the appointment because the seller of commercial real property purchased by her and her husband had recently filed a foreclosure action to recover the property. The suit occurred because she and her husband had been unable to make the final balloon payment on the property. The seller had agreed to forebear the possibility of such a suit the year before when Mrs. Jones gave him twenty thousand dollars ($20,000.00) and the promise that she would obtain financing within a year's time and pay the outstanding balance in full. At the close of the year, Mrs. Jones had not been successful in her attempts to acquire the money to pay for the property. This appointment renewed her hopes that she could minimize her losses, settle the suit, and preserve her interest in the property. Prior to arranging her appointment with Respondent DeBellonia, Mrs. Jones had made applications for a loan at several banks. Her requests had been turned down because the banks had determined that the present value of the property was insufficient to provide the collateral needed for the secured loan she was seeking. When Mrs. Jones attended her meeting with Respondent DeBellonia, she voluntarily presented him with a copy of her agreement for deed, a property appraisal, and her owner's title insurance policy. Having submitted herself to a number of loan requests at various banks prior to this appointment, she assumed he would want to see the same documents that had been requested during those loan reviews. Respondent DeBellonia allowed Mrs. Jones to present her situation and her documentation to him in her own manner. He made copies of all of the papers offered to him and returned the originals. At the close of Mrs. Jones' presentation, Respondent DeBellonia agreed to be her business consultant and to assist her in her search for funding. Although Mrs. Jones originally stated that she needed to acquire $94,000.00, this amount was reduced to $20,000.00 when she was informed that the Respondents charge a professional service fee of ten percent of the loan amount ultimately accepted by the clients. To begin work on the funding project, the Respondents requested a non-refundable professional service fee of $1,900.00. Although Mrs. Jones did sign the business consultant agreement, she did not have the money with her to pay the non-refundable fee. When she informed Respondent DeBellonia that she did not have the money, he told her he needed the money as soon as possible so that he could go ahead and work on the transaction. He indicated that he could accomplish a fast transaction for the $20,000.00 in about three days time. According to Mrs. Jones, the seller of the commercial property was willing to forebear on the foreclosure for a while if she could give him $20,000.00 now and if she was actively pursuing a loan which would pay off the balance due. This proposal was another reason she changed her request from $94,000.00 to the $20,000.00 amount. Later that evening, Mrs. Jones telephoned Respondent DeBellonia and told him she needed a new document so that her husband could be on the agreement as well. When the second document was sent, the secretary mistakenly sent out the original agreement with a funding goal of $94,000.00 instead of the reduced request for $20,000.00. Mr. Jones' name had been placed on the document in order to obtain his signature. Both agreements given to Mrs. Jones clearly state that Respondent CGFS, Inc. is not a mortgage broker. Before Mrs. Jones returned a fully executed agreement to the Respondents with the non-refundable fee, she decided to call the Comptroller's Office in Tallahassee to get a business rating to see if this was a good-rated business for her own protection. Although nothing negative was stated by the Comptroller's Office, Mrs. Jones did not get the assurances she was seeking. After that, she decided not to retain the Respondents to provide their business consultant services. Without Mrs. Jones' presumption that the Respondents would eventually seek a mortgage on the real property she intended to purchase, there is no reliable circumstantial evidence which demonstrates that the Respondents were seeking to act as a mortgage broker under the set of facts presented at hearing. Even if the circumstantial evidence and ill-conceived presumptions were considered reliable, the evidence is outweighed by the clear statement within the consultant agreement that Respondent CGFS, Inc. is not a mortgage broker. In addition, if the Respondents had intended to see a mortgage for Mrs. Jones, they would have required her to have her husband sign the agreement because she was an equitable owner of the property in a tenancy by the entirety. Instead, it was Mrs. Jones who later requested that her husband's name be included on the agreement. Respondent DeBellonia clearly manufactured Respondents' Exhibit number E. If this proceeding had turned on his credibility versus the credibility of others, he would not have prevailed in the factual determination. Based upon the facts presented at hearing, the Department initially had reason to believe that the Respondents were violating or about to violate the law by acting as a mortgage broker and mortgage broker business without a license. However, the formal hearing process revealed that Mrs. Jones' impressions of what occurred during her meeting with Respondent DeBellonia were faulty. Documentary evidence prepared during the interview and Mrs. Jones' admissions during the cross-examination resolved the case in Respondent's favor. The actions taken by the Department in filing the Cease and Desist Order were proper, and were not harassment of the Respondents.
Recommendation Accordingly, it is RECOMMENDED: That the cease and desist order issued by the Department on February 20, 1990, be dismissed. DONE and ENTERED this 31st day of September, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 21st day of September, 1990. APPENDIX TO RECOMMENDED IN CASE NO. 90-1720 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO number 1. Accepted. Reject the date of the interview. The rest is accepted. See HO number 2-number 6. Accepted. Accepted. See HO number 5. Accepted. See HO number 9 and number 10. Accept the first two sentences. See HO number 9. Reject the third sentence. Contrary to fact. Reject the fourth sentence. Irrelevant. 8. Accepted. See HO number 11 and number 12. 9. Accepted. See HO number 15 and number 18. COPIES FURNISHED: Stephen M. Christian, Esquire Office of the Comptroller Regional Service Center 1313 North Tampa Street, Ste. 615 Tampa, Florida 33602-3394 Michael C. Mone, Esquire 111 Eighth Street Belleair Beach, Florida 33535 Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 William G. Reeves, Esquire General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Charles Vincent Suter (Suter), is a licensed real estate salesman having been issued license number 0502107 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). When the events herein occurred, respondent was employed as a salesman for Tom Roderick Realty, 2440 Palm Ridge Road, Sanibel, Florida. He has been licensed as a salesman since September 1987. Through a mutual friend, Mary Jane Briney, Suter was introduced in 1988 to Norma Winkler, a resident of Indianapolis, Indiana, who occasionally visited Sanibel Island near Fort Myers on vacation during the winter months. Winkler was interested in renting a three bedroom condominium on the beach in January and February 1989. Briney recommended to Winkler that she rent a unit at an apartment/condominium complex known as Janthinia located on Sanibel Island and that she use respondent as her rental agent. Relying on Briney's recommendation, Winkler agreed to rent the unit and telephoned Suter in September 1988 and requested that he make reservations for her. Although Suter did not normally handle rental transactions, he agreed to assist Winkler and thereafter made reservations with Executive Services, Inc. (ESI), a corporation which managed various units in the Sanibel area including Janthinia. On September 21, 1988, Suter sent Winkler a letter confirming her reservations for Unit 2A at Janthinia with an arrival date of January 26, 1989 and a departure date of February 23, 1989. The total rent, including tax, was $7,091.23. Suter also advised Winkler that she needed to furnish a 10% deposit, or $709.12, within ten days to secure the reservation. On September 30, 1989, Winkler sent a check in the amount of $709.23 made payable to Tom Roderick Realty. The check was deposited into the firm's escrow account the same day. On October 4, 1989, the realty company issued a check in the same amount to ESI as a reservation deposit for Winkler. After the deposit was forwarded to the real estate firm, Winkler changed her date of arrival in Florida from January 26 to January 20 but kept her date of departure the same. On December 9, 1989, ESI confirmed Winkler's reservation for those dates and sent a 10% commission to the realty company. The rental fee was shown as $8,395.42 less the deposit, or a total amount still due of $7,686.30. On January 30, 1989, Suter was paid $352.75 as his share of the commission. Approximately a week before her scheduled arrival, Suter telephoned Winkler and advised her the total amount due was $8,686.30, or $1,000 more than was reflected on ESI's statement. However, Winkler had requested that Suter furnish her with a VCR, liquor, piano and other items so Suter estimated the total bill would be approximately $1,000 greater than the rent still due. On January 20, 1989, Winkler, her sister, niece and a neighbor flew from Indianapolis to Fort Myers. They were met at the airport by Suter and two mutual friends. That same morning, and before Winkler arrived, Suter received by mail Winkler's check in the amount of $8,686.30. When Suter received Winkler's check, he immediately deposited it in his own checking account and not the firm's account. The check was made out to Suter, and not the realty firm, since Winkler had suggested that she make it out in that manner. Upon depositing the check, Suter immediately asked the bank to verify if it was good, and after receiving assurances that it was, he went across the street and wrote a $7,686.30 check to ESI to pay for Winkler's rent. When Winkler, Suter and other members of the group reached Janthinia, Suter advised Winkler that he owed her a refund. Winkler told him not to worry, that she would settle up later. She then had Suter purchase a quantity of liquor and obtain a VCR for her apartment. During one of the social gatherings attended by Winkler and Suter a few weeks later, the two had a falling out. At that point, Winkler telephoned Suter's broker and told him she was due money from Suter. On February 7, the broker confronted Suter around 4:00 p.m. regarding Winkler's allegation. Suter readily acknowledged that Winkler still had money due and that he would immediately pay her. He also acknowledged that the money had been placed in his own bank account rather than the broker's escrow account. Although Suter volunteered to hand carry a check to Winkler that afternoon, she insisted he pay it to the broker who would then write her a check. Suter did so within the hour and Winkler later received a check for $1,000 from the real estate firm. The broker then made an inquiry with the Division concerning Suter's actions, and upon advice from a Division attorney, filed a complaint against Suter. Winkler was described by a longtime friend as a 1,dangerous person", a "troublemaker", and someone who had caused problems for many persons over the years with various types of accusations, most of which were unfounded. Suter denied that he knew it was unlawful to deposit the rent check in his personal account since he considered the transaction as a favor for a friend. He blamed the entire episode on Winkler who became mad at him for paying too much attention to a young widow, and not Winkler, at a dinner party in early February 1989. There was no intent on the part of Suter to use the deposited funds in an illicit manner or to defraud his broker and Winkler. Even so, Winkler's check should have been deposited in the broker's escrow account. There is no evidence that Suter has ever been disciplined by the Division on any prior occasion. Further, Suter's initial reluctance to give a statement to an investigator was founded on the valid reason that he first wished to consult an attorney.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts II, III, and IV of the administrative complaint and that Count I be dismissed with prejudice. It is further RECOMMENDED that respondent be given a $500 fine to be paid within thirty days from date of order. DONE and ENTERED this 8th day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER 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 8th day of November, 1990. APPENDIX Petitioner: 1-3. Partially adopted in finding of fact 1. 4. Partially adopted in finding of fact 3. 5-6. Partially adopted in finding of fact 4. Partially adopted in finding of fact 5. Partially adopted in findings of fact 6 and 8. 9-10. Partially adopted in finding of fact 2. 11. Rejected as being unnecessary. 12-13. Partially adopted in finding of fact 6. 14. Partially adopted in findings of fact 7 and 8. 15-16. Partially adopted in finding of fact 10. 17-18. Partially adopted in finding of fact 12. 19-21. Partially adopted in finding of fact 10. Respondent: 1-2. Partially adopted in finding of fact 1. Partially adopted in finding of fact 2. Partially adopted in findings of fact 2 and 3. Partially adopted in finding of fact 4. Partially adopted in finding of fact 5. Partially adopted in findings of fact 5 and 6. 8-9. Partially adopted in finding of fact 5. 10-11. Partially adopted in finding of fact 8. Partially adopted in finding of fact 7. Partially adopted in finding of fact 9. 14-15. Rejected as being unnecessary. 16. Partially adopted in finding of fact 10. Note - Where findings have been partially used, the remainder has been rejected as being cumulative, unnecessary, subordinate, irrelevant or not supported by the more credible and persuasive evidence. COPIES FURNISHED: Steven W. Johnson, Esquire P. O. Box 1900 Orlando, FL 32802-1900 Jerrold S. Stern, Esquire P. O. Box 112 Sanibel, FL 33957 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Darlene Keller, Executive Director Division of Real Estate P. O. Box 1900 Orlando, FL 32802-1900
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
