The Issue The issue is whether the School Board’s action in awarding the contract for the sale of declared surplus to Develyn M. Smith was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On October 17 and 24, 1996, respondent, Putnam County School Board (Board), published a notice in the Palatka Daily News soliciting bids on a five-acre parcel of surplus property in Putnam Hall, a small rural community in northwestern Putnam County. The notice provided that “(s)ealed bids should be submitted . . . by 1:00 p.m. on November 4, 1996,” and that the bids would be opened at 1:30 p.m. the same day. In response to that notice, petitioner, Positive Images Alternative Enrichment Group, Inc. (petitioner or PIAEG), and respondent, Develyn M. Smith (Smith), submitted offers of $10,000.00 and $3,500.00, respectively. On November 25, 1996, the Board awarded the contract to PIAEG, the highest bidder. When PIAEG failed to provide a binder and sign a contract for sale and purchase by the Board’s January 13, 1997 meeting, the Board rescinded its earlier action and awarded the contract to Smith, the next highest bidder. On January 24, 1997, petitioner filed its written protest of the Board’s action. The facts underpinning the Board’s action are set forth below. On November 4, 1996, the two bids were opened by assistant superintendent Anthony C. Thompson. On November 6, 1996, Thompson submitted a memorandum to the Board in which he recommended that PIAEG’s bid be accepted. This recommendation was formally approved by the Board at a meeting held on November 25, 1996. Whether notice of this intended award was posted is not of record. On November 25, 1996, or the Monday before Thanksgiving, the Board’s general counsel, Joe Pickens, telephoned PIAEG’s representative, Lawrence Hutcherson, and advised him that, as the successful bidder, PIAEG must give the Board a $1,000.00 binder and execute a contract to purchase the property. He was further told that after doing so, the Board would commence title work on the land. Hutcherson asked if he could delay providing a binder and signing the contract until after the holidays, or until the week of December 2. Pickens orally agreed to this request. Pickens heard nothing from Hutcherson until he received a copy of a letter to the Board’s superintendent dated December 23, 1996, in which PIAEG’s secretary, Jonathan Williams, asked that “any action on said property (be) withheld until our meeting with the Rural Development Agency in Ocala January 7, 1997.” The letter added that the “request is made to allow our organization to seek resources for the planned community facility.” The delay was sought after PIAEG learned of possible federal grant moneys available through the State, and decided to use that source of money for financing the acquisition rather than relying upon its own funds. Hutcherson made no inquiry with the superintendent or Pickens to determine if the extension of time had been granted. Rather, he just assumed that his request would be approved since he was unaware of any time constraints on purchasing the property. By the same token, neither Pickens nor the superintendent responded to the letter. Pickens, however, discussed the matter with a Board representative, and the two agreed an extension of time would be satisfactory since the next Board meeting was not until January 13, 1997, or after PIAEG’s meeting on January 7. While Pickens expected Hutcherson to contact him before the next meeting, he did not convey this advice to Hutcherson. At the January 7 meeting in Ocala, PIAEG learned that until rules were adopted by the Department of Community Affairs, no grant applications could even be considered. At that time, Hutcherson was led to believe that such rules would not be adopted before May 1997. At hearing, he stated that this time had subsequently been extended, and he is now unsure when the rules will be adopted. Hutcherson did not report this information to Pickens before the January 13 Board meeting because he says he needed several weeks to prepare an appropriate report. Also, until the afternoon of January 10, he was unaware of the meeting. Finally, he had received no response to his letter of December 23 requesting a delay, and he reasonably assumed that no action would be taken until after he filed his report. After receiving no advice, oral or written, from Hutcherson regarding PIAEG’s January 7 meeting in Ocala, Pickens recommended to the Board at its January 13 meeting that it rescind its earlier award of the contract to PIAEG and that Smith’s bid be accepted. The Board approved this recommendation. The Board acknowledges that it did not post notice of this intended action. On January 17, 1997, and without knowledge that its award had been rescinded, PIAEG’s secretary sent a letter to the Board’s superintendent asking that a further extension be granted. The letter explained that PIAEG planned “to have a pre- application (for grant moneys) ready within the next 45 days.” Shortly thereafter, Hutcherson learned of the Board’s action, and PIAEG filed its protest on January 24, 1997. After settlement negotiations failed, this proceeding was begun. Except for the notice pertaining to the date on which sealed bids had to be filed, there were no other specifications governing this bid solicitation. Thus, there was no written requirement that a binder had to be filed by a date certain, or that the successful bidder had a specified period of time in which to close on the property or risk loss of the contract. When PIAEG filed its sealed bid, it erroneously used the name “Positive Images Alternative Group, Inc.” instead of its correct name. After its bid was submitted, PIAEG sent a letter to the Board’s general counsel and superintendent on December 23, 1996, using its correct name. The Board has represented that this change was immaterial, did not affect the outcome of the case, and would not be a disqualifying factor.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Putnam County School Board enter a final order rescinding its action taken on January 13, 1997, and awarding the contract to petitioner. DONE AND ENTERED this 8th day of May, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER 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 8th day of May, 1997. COPIES FURNISHED: Geri Melosh, Superintendent Putnam County School Board 200 South Seventh Street Palatka, Florida 32177 Lawrence Hutcherson Post Office Box 2186 Palatka, Florida 32178-2186 Joe H. Pickens, Esquire 222 North Third Street Palatka, Florida 32177-3710 Develyn M. Smith 1116 Bellamy Road Melrose, Florida 32666
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Respondent, Stephen Philips Kilmon, is presently licensed as a professional surveyor and mapper, having been issued license number LS5439 on January 26, 1995. On or about November 4, 1994, the Respondent filed an application for licensure as a professional surveyor and mapper on a form provided by the Board of Professional Surveyors and Mappers. In order to be eligible for licensure as a professional surveyor and mapper, the Respondent had to be a high school graduate. The Respondent graduated high school in 1976 and included proof of his graduation with his license application.3 In order to be eligible for licensure as a professional surveyor and mapper, it was not necessary that the Respondent have any formal education beyond graduation from high school. Among other things, under the caption "EDUCATIONAL HISTORY" the application form requested the following information: "Name of School, College, or University Attended," "Year of Graduation," and "Degree." On his application form the Respondent wrote that he had attended the University of Maryland, that he graduated in 1980, and that his degree was "BSCE." At one time the Respondent studied civil engineering at the University of Maryland, but he never obtained a degree in civil engineering from the University of Maryland. During the course of a deposition taken on April 1, 1998, the Respondent described his education formal education following high school as follows: Q. Okay. And what was your major course of study while you were attending the University of Maryland? A. Civil engineering. Q. And did you obtain a degree? A. No, I did not. Q. What years did you attend the University of Maryland? A. I attended the University of Maryland between 1976 and 1979. Q. All right. Whay did you leave school without a degree; was there any particular reason why? A. No particular reason. * * * Q. Okay. What year did you leave the University of Maryland? A. In 1979. * * * Q. Okay. How many credit hours did you accumulate prior to leaving college? A. I don't recall what the final number really was. Q. How many was [sic] required for graduation? A. Because I never graduated, I don't really recall what was required. * * * Q. All right. I'm trying to determine, and perhaps you can help me, did you leave in your sophomore year, junior or senior year? A. It was in my sophomore year. Later, in a letter dated September 30, 2001, the Respondent wrote to the Board of Professional Surveyors and Mappers and explained his education after high school as follows: While being a "Fact" and "Expert" witness for a Plaintiff in Court, it has been brought to my attention by attorneys on our team that my University of Maryland Bachelor of Science Civil Engineering (BSCE) degree had become unaccredited over time due to University administrative circumstances beyond a student's (my) control. When I was at the age of 18, I was severely handicapped with chronic vision disorientation (Lazy Eyes). Following my freshman first semester I underwent major eye surgery to begin to correct my handicap. I transferred from UM, College Park Campus to become enrolled at the University of Maryland Baltimore County (UMBC) Campus in a specialized handicapped program for persons with various disabilities for nearly two and a half years completing my MSCE degree there. Within a few days of my graduation in May of 1979, my degree I received was taken back and held in limbo due to a program administration accreditation error (University Red Tape Error) which went on for years contested by several sets of parents, and by my father on my behalf. At this same time my mother pas[sed] away in a car accident and I left Maryland behind. I moved to Miami in late November of 1979 and began my career in Surveying with Zurwelle-Whittaker on Miami Beach. My father indicated to me in 1991 before he pas[sed] away from liver cancer, that after litigation settled the dispute, my degree was reinstated. After all this time had pas[sed] I never used or mentioned having a degree unaccredited or otherwise, because I knew technically I didn't keep it. Besides[,] my life went on without any need for a degree. In 1994 I applied to obtain a Surveyor and Mapper's license, which does not require a college degree, only a high school diploma. However, on my license application I did write that I received my Bachelor of Science Civil Engineering (BSCE) degree from the University of Maryland, which as I recall, my father said it became reinstated. Well here's an update - it wasn't. And in hindsight I should have checked out my degree status myself, but I didn't. I don't wish to misrepresent my credentials to anyone. Its [sic] hard enough to have done the time in school, and not be rewarded with the credit for it. Which brings me to this conclusion. I have learned over the past 25 years what really matters most. I acquired the discipline and knowledge to successfully open doors in life and move on, without regrets. If you have any further questions or need additional information please do not hesitate to contact me, directly.4 Item 4 of the application form required that the Respondent provide the following: Proof of employment in responsible charge as a photogrammetric mapper in the state for 24 months as of November 30, 1994, such proof to consist of five topographic or planimetric maps of areas in the state which maps were prepared by or under the supervision of the applicant using photogrammetric techniques, along with a verified, itemized report detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map. Item 5 of the application form required that the Respondent provide a sworn affidavit including the following: The name and address of the applicant. Certification that the applicant has been in responsible charge of photogrammetric mapping in the state for at least 24 months as of November 30, 1994, which mapping meets National Map Accuracy Standards. Certification that the submitted maps are of areas in the state, that they were prepared by or under the supervision of the applicant using photogrammetric techniques, and that they meet the requirements of National Map Accuracy Standards. A statement that the applicant has no criminal record related to fraudulent practices or directly related to the practice of surveying and mapping. In response to the foregoing requirement, the Respondent included information about six specific projects he had worked on while he was employed with Carr Smith Associates. Those specific projects were described as: Palmetto Expressway Improvement Project [From SW 16 St. to SW 2 St.]; Florida Board of Regents [FL Inter. Univ., University Park Campus]; Metro-Dade County, Port of Miami Authority [Port of Miami Landbase Model]; Florida Board of Regents [FL. Inter. Univ., North Miami Campus]; City of Coral Gables, FL. Public Works Dept. [City-Wide GIS]; Broward County Aviation Department [Ft. Lauderdale-Hollywood International Airport GIS Project and North Perry Airport GIS Project]. With regard to all six of the itemized projects mentioned immediately above, the Respondent submitted the maps and the verified, itemized reports "detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map," as required by item 4 of the application form.5 Those maps and reports were sufficient to establish that the six projects described immediately above were all performed under the supervision of the Respondent. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates did not have the equipment necessary to do photogrammetry. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates subcontracted photogrammetric services to Southern Resource Mapping of Miami, Inc. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates subcontracted with Southern Resource Mapping of Miami, Inc., for photogrammetric services for the projects described in paragraph 9, above. The fact that these projects were subcontracted to Southern Resource Mapping of Miami, Inc., was disclosed in affidavits submitted with the Respondent's application.6 At all times material to this case, Joseph Bilu has been a certified aerial photogrammetrist, and has been a vice- president of Southern Resource Mapping of Miami, Inc. Joseph Bilu provided photogrammetric mapping services in the name of Southern Resource Mapping of Miami, Inc., on all of the projects itemized in paragraph 8, above. The photogrammetric mapping services provided by Joseph Bilu under his subcontracts with Carr Smith Associates for the projects itemized in paragraph 9, above, were all performed under the supervision of the Respondent. The Respondent was in responsible charge of the photogrammetric mapping projects itemized in paragraph 9, above.7
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order dismissing in its entirety the Administrative Complaint issued against the Respondent. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 25th day of January, 2006.
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint, as amended, and, if so, what disciplinary action should be taken.
Findings Of Fact Preliminary matters At all times material hereto, respondent, Eston Mansfield, held Florida teaching certificate number 691581, covering the area of middle grades mathematics, grades 5 through 9. Such certificate expired June 30, 1995. At the time of the incidents at issue, respondent was, from time to time, employed as a substitute teacher by the School Board of Dade County, Florida, and the School Board of Broward County, Florida. Moreover, during such times, respondent was also self-employed, as a professional photographer. The incident in question In or about February 1993, A. E., a fifteen year old female, was referred to respondent, who she understood to be a professional photographer. 2/ At the time, A. E. was entertaining an interest in modeling, and had need for a modeling portfolio. A. E. and respondent spoke by telephone, and respondent agreed to do the photographs for the portfolio, and quoted a price between $1,500 and $2,000. When A. E. told respondent she could not afford the cost, respondent countered by telling her that he was looking for a model to practice some nude photography and that if she would agree to pose for the photographs he would do the photographs for the portfolio at no charge. A. E. agreed to the trade. At the time A. E. spoke with respondent, she was not a student, having "legally withdrawn" from school, was sharing an apartment with her older sister, age 18, and their respective boyfriends. A. E.'s boyfriend at the time was older than A. E., and A. E., although underage, was not a stranger to alcohol. Although A. E. and respondent had no personal contact prior to their telephone conversation, respondent had visited with her sister in the past, in an effort to interest her in a wedding portfolio, and was aware of A. E. and her living arrangements. Respondent was further aware that A. E. was the younger of the two sisters and knew, before the photography session hereinafter discussed, that A. E. was 15 years of age. In February or March, 1993, A. E., together with her friend, Wendy Colvin, went to respondent's home for the anticipated photography session. As described at hearing, respondent's home included an area that was suitably equipped for professional photography and the session, based on the persuasive proof, appears to have been conducted in a professional manner. 3/ Before the session began, respondent offered and A. E. accepted an alcoholic drink to help her "relax". Thereafter, A. E. posed in several sets of lingerie that she had brought for the session, and then posed for a number of nude photographs. Apart from the observation that some of the lingerie A. E. wore was her sister's wedding lingerie, the record is devoid of any descriptive observations from which one could draw any reliable, as opposed to speculative, conclusion as to its character. Likewise, the record is largely devoid of any descriptive observations of the lingerie or nude photographs, such that one cannot draw any reliable, as opposed to speculative, conclusion regarding their character or content. Notably, the photographs were not exhibited or offered at hearing, and only the vaguest of descriptions elicited from the witnesses. In A. E.'s opinion, some of the photographs "were tasteful, some were not." In respondent's opinion, some of the photographs that might be described as "tasteless" did not meet "a professional standard," which he attributed to A. E.'s amateur status and unfamiliarity with proper positioning or posing. 4/ Given the paucity of proof concerning the character or content of the photographs, it cannot be concluded that the photographs, in whole or in part, offended contemporary community standards by predominantly appealing to prurient, shameful or morbid interest, that the photographs were without any serious artistic value, or that the photographs were otherwise obscene, as that term is commonly understood. Moreover, there was no proof offered, by student, teacher, or otherwise, that respondent's practice of nude photography, albeit with a 15-year-old girl, otherwise offended community values or reduced his effectiveness as a teacher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That a final order be rendered dismissing the charges filed against respondent. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1996.
The Issue Did Respondent discriminate against Petitioner in her employment because of a physical handicap?
Findings Of Fact Respondent, Double Envelope Corporation (Double Envelope), is engaged in the manufacturing and printing of envelopes and has a plant in Gainesville, Florida. (Tr. 252) Petitioner, Alicia Hart, became a full-time employee of Double Envelope in Gainesville, Florida in April 1987. (R. Ex. 18) Petitioner worked from April 1987 until July 14, 1989, and during most of that time she held the position of inspector/operator on the second shift in the Open-End Department. (Tr. 57) The Open-End Department manufactures small and large envelopes which are open on one end. (Tr. 198-99) In August 1987, Petitioner viewed a film strip on safety and inspecting of envelopes, and she signed a form reflecting that she had viewed the film and that she understood the importance of safety and production of quality merchandise. (Tr. 62, R. Ex. 14) The film strip presented by Double Envelope is one of several ways inspector/operators learn how to produce and inspect quality envelopes. (Tr. 197) Inspector/operators also learn about their jobs through employee orientation. A memorandum describing the procedures for producing quality envelopes is posted on each envelope making machine. (Tr. 197-98, R. Ex. 6) The memorandum on procedures for inspecting quality envelopes provides in pertinent part as follows: Checking Envelopes When envelope comes off your machine, check your perforations, seal gum, side gum and bottom gum, and envelope fold . . If any of the above checks does not meet your inspection, turn your machine off and ask (R. Ex. 6) your adjuster to check your machine. When running a job, do not close your cartons until you start your 2nd layer on a skid then inspect envelopes again. Petitioner understood that inspection of the envelopes was an important part of her job. (Tr. 60) During her employment, Petitioner worked most of the time in the small open-end (S.O.) department, and was very familiar with the small open-end machines. (Tr. 60) Mr. Durette was foreman of the Open-End Department and was Petitioner's supervisor throughout her employment at Double Envelope. (Tr. 197, 199) Mr. Durette taught the Petitioner the particulars of her job as an inspector/operator, showing her (a) how to fan through the stock that she put on the machine to make it easier for the machine to push envelopes through the machine; (b) how to fan through the envelopes after she picked them up and checked the quality of the envelopes, the gum, the seal, and the perforations; (c) how to pack the envelopes in cartons; and (d) how to pull out and replace any bad envelopes she might find. (Tr. 200) Throughout her employment, Petitioner had problems getting along with various coworkers and supervisors. (Tr. 200- 01, 249, R. Ex. 1-A) On several occasions before July 1988, Mr. Durette verbally counseled Petitioner concerning her attitude and failure to get along with other employees. (Tr. 201, 203) Mr. Durette gave Petitioner a written warning on July 7, 1988, for her failure to follow the instructions of an adjuster. An adjuster adjusted the machine to make quality envelopes. An adjuster was authorized to supervise inspector/operators. (Tr. 201-03, 106, R. Ex. 1-A) In this warning, Mr. Durette informed Petitioner that "next time this may result in a suspension." (R. Ex. 1-A) The July 1988 warning was issued around the time the Petitioner first reported problems with her hands at Double Envelope. The date she reported the problems she was having and the date the report were formalized are not certain. On February 24, 1989, Petitioner reported to work. Shortly thereafter, Petitioner told Mr. Durette that she needed time off from the job right away to take care of a garnishment problem. Mr. Durette informed Petitioner that he needed her to work and denied her permission to leave. Petitioner then requested to see Audrey Weeks, Production Coordination, about leaving work that day and Mr. Durette agreed. (Tr. 55, 67-68, 204-06) Petitioner saw Ms. Weeks that day and advised Ms. Weeks that she needed to go to the courthouse right away to handle a problem with a garnishment. Ms. Weeks advised her that she would have to see Mr. Durette regarding the matter. (Tr. 129) Immediately thereafter, Petitioner went to talk to Vice President and General Manger of the plant, Holt Vaughan. Petitioner asked Mr. Vaughan if she could leave work to go to the courthouse to handle the garnishment. Mr. Vaughan denied Petitioner permission to leave and told her she was needed to work. (Tr. 254, 55) After being told by her supervisor, the production supervisor, and general manager she could not have time off, Petitioner left the plant. Mr. Vaughan, seeing Petitioner leave a few minutes later, told her that if she left, she would have to suffer the consequences. (Tr. 255) Petitioner left the workplace and did not return that day. (Tr. 204) On February 27, 1989, Mr. Durette issued a written notice to Petitioner suspending her for one day, with pay, in accordance with Company policy. (Tr. 204, 255, R. Ex. 1-B) Petitioner was not on light duty status at the time of this suspension. (Tr. 250) After investigation, Plant Manager Wayne Secrist upheld the suspension and issued a typewritten memorandum to Petitioner on March 2, 1989, warning Petitioner that "any further problem whatsoever with Petitioner will result in her dismissal." (R. Ex. 1-C) On March 14, 1989, Mr. Durette issued a written message warning to Petitioner because she left a dirty gum table and paper around and on her machine the previous day. (Tr. 205- 06; R. Ex. 1-D) At the time the March 14, 1989, warning was issued, Petitioner was not on light duty status and had not filed a workers' compensation claim regarding her left wrist. (Tr. 207, 268-69, R. Ex. 24) Petitioner talked to Ms. Weeks around March 15, 1989, about her left wrist and filed a workers' compensation claim that day. (Tr. 268-69) Ms. Weeks referred Petitioner to the Company doctor, Dr. Evans, who in turn referred Petitioner to a hand specialist, Dr. Osborne, at the Ramadan Institute. (Tr. 48-49, 271) Dr. Evans placed Petitioner on light duty status in March 1989, and Dr. Osborne confirmed that status. (Tr. 50, 271- 72) Ms. Weeks, Mr. Vaughan and Mr. Secrist determined what Petitioner's light duty job would be based upon a description of light duty status from their insurance company and a telephone conversation between Ms. Weeks and Dr. Osborne. Petitioner was restricted on the amount of weight she would lift and the size of the envelopes she would handle. (Tr. 256-57, 272) Double Envelope assigned Petitioner to work on a S.O. machine which is slower in speed than other machines, and the lifting required is lighter. The work assigned was consistent with the doctor's limitations. (Tr. 109-10, 208, 256- 57, 272) Petitioner advised Ms. Weeks that she had discussed her situation with Dr. Osborne, and that she had described what she was doing to Dr. Osborne. The Petitioner advised Ms. Weeks that there was no problem with the machine she was running, and that her duties were consistent with the doctor's orders. (Tr. 272) Petitioner advised Mr. Vaughan that the work she was doing on light duty in March 1989 was consistent with what she thought the doctor had requested for light duty. (Tr. 256) Petitioner's condition in 1989 did not interfere with her carrying out the responsibilities of her light duty job and she was able to keep up on the machines. (Tr. 109-10) In April 1989 both Petitioner and another employee refused to work on their machines. (Tr. 215, 256, 264) Mr. Vaughan and Ms. Weeks met with Petitioner on the day she refused to continue working on her machine. Mr. Vaughan asked if Petitioner was having a problem due to her injury. The Petitioner advised Mr. Vaughan that the work she had been assigned was consistent with her restrictions, and she was not having a problem. Mr. Vaughan replied that she should either continue to do this work or see her doctor to get a written statement that she was not able to perform the work for that reflected new duties. Petitioner returned to work. (Tr. 256, 265) On April 5, 1989, Mr. Durette gave Petitioner a written warning advising her that a number of envelopes which she had produced on April 4, 1989, were stuck together in cartons with her signature. (Tr. 208, 212, R. Ex. 1-E) On April 5, 1989, Mr. Durette discovered additional envelopes which she had packed and which were sticking together. Mr. Durette gave her another written warning on April 5, 1989, on this deficiency. (Tr. 211, 213-14, R. Ex. 1-F) Mr. Durette was able to determine that Petitioner had packed the defective envelopes from her signature on the cartons, the job numbers on her time sheet, and the department log with matching job numbers. (Tr. 209, 213) Operator/inspectors were suppose to shut down their machines if their inspections revealed a problem and call an adjuster. The adjuster would fix the machine and the operator would restart the machine. On several occasions prior to May 1, 1989, Mr. Durette talked to Petitioner about her failure to keep her machine running, and her failure to immediately report jams. (Tr. 214-15) On May 1, 1989, Mr. Durette gave a written warning to Petitioner concerning her poor attitude and low production. (Tr. 214, R. Ex. 1-G) On May 2, 1989, Petitioner was examined by Dr. Osborne and she brought back to Ms. Weeks a note from Dr. Osborne releasing her to return to work performing her normal duties with no restrictions. (Tr. 38, 111, R. Ex. 13-B) Several employees complained to Mr. Durette at various times that Petitioner was not coming back from breaks on time and that she was taking more time than was allotted. (Tr. 217) As a result of these complaint, Mr. Durette counseled the Petitioner about returning from breaks and lunch on time. He still received complaints about Petitioner's lateness. (Tr. 218) On May 12, 1989, Petitioner left for her lunch break at approximately 7:00 p.m. and called in sometime during her 30 minute break to advise that she had car problems and would be a little late. Petitioner came back into the plant at 7:45 p.m., but she indicated on her time sheet that she returned at 7:30 p.m. Petitioner was warned by her supervisor about returning to work on time and reporting her time accurately. (Tr. 87, 218, R. Ex. 3) From May 8, 1989, through the date of her discharge, Petitioner did not complain that she was having any problems with her hand or that her wrist was locking up. (Tr. 234, 273-74) On June 13, 1989, Mr. Durette issued a written message warning to Petitioner with regard to her failing to attend four consecutive safety meetings. (Tr. 219, R. Ex. 1-J) On June 19, 1989, at the end of her shift, Petitioner told Mr. Durette she could not come in the following day because she had real estate business. Mr. Durette advised her that she could not take the day off and that he needed her to work and she would have to be there. Petitioner asked if she could make up the time, work another shift, or make up the production some other way, but was denied the time off. (Tr. 94, 222) On June 20, 1989, Petitioner took the day off without calling in, despite Mr. Durette's instructions on the previous day. (Tr. 222) On June 23,1989, Mr. Durette issued a written notice of disciplinary action, warning Petitioner concerning her insubordination and misconduct in failing to show up for work on June 20, 1989. The notice of disciplinary action warned her that this was a final warning and any further violations "will result in your dismissal from Double Envelope." (Tr. 221, R. Ex. 1-K) On July 12, 1989, Petitioner worked from 3:30 p.m. until 11:30 p.m. on an S.O. machine manufacturing open-end photo processing envelopes for Jack Eckerd Corporation on job number 3327295. (Tr. 96-97, R. Ex. 7) The envelopes being manufactured have a flap at the top of the envelope, and a perforation across the end of the flap closure which was a receipt. (Tr. 60) Petitioner's job responsibilities on this job included inspecting the envelopes to ensure that they were satisfactory by looking carefully through the envelopes for the perforation and the "gum line", the area where the gum is placed to seal the flap. (Tr. 165-66, 228). Petitioner was supposed to inspect the envelopes and, as stated above, shut her machine done and notify her supervisor or adjuster immediately if she found any problems. (R. Ex. 6, Tr. 199). When inspecting the envelopes, Petitioner knew that she should pick up a stack of envelopes, thumb through the entire stack making a visual inspection, and look for anything that was out of place or odd. (Tr. 62-63). On July 12, 1989, Petitioner had some problems twice during her shift with her machine jamming, but she did not notice any problems with the perforation of envelopes. The machine was adjusted and restarted. (Tr. 105, 233). On the morning of July 13, 1989, adjusters Charles Wood and Bill Harmon were notified by a first shift employee that there were envelopes from the night before that had not been perforated. (Tr. 143, 167-68). Charles Wood and Bill Harmon then looked back through envelopes completed the prior night on the second shift to determine if there were any bad envelopes that had not been discovered. They found that approximately 2,000 envelopes packed the prior evening were defective in that they had no perforation. (Tr. 14, 168, 224) Messrs. Wood, Harmon and Durette determined from the box numbers and machine logs, and Petitioner's initials on the cartons, that on July 12, 1989, Petitioner had packed the 2,000 envelopes with defective perforations in four cartons. (Tr. 148, 167-68, 224). Petitioner acknowledged she had worked on the boxes of envelopes which contained the defective envelopes. (Tr. 98) Petitioner had not discovered and reported the 2,000 envelopes without proper perforations before leaving her shift on July 12, 1989. Mr. Durette, with the approval of Ms. Weeks and Mr. Vaughan, determined to terminate Petitioner on the basis of her failure to follow instructions concerning inspection of envelopes and her poor work history over the past months. (Tr. 223, 259, 274, R. Ex. 2) At the time of terminating Petitioner, the Company officials involved in the termination decision were not aware that Petitioner had any permanent or temporary disability. The Petitioner had been returned to regular duty. (Tr. 234, 259, 274) No medical evidence exists in the record to establish that Petitioner has ever been permanently disabled. (Tr. 234, 259, 276) No evidence, medical or otherwise, exists in the record to show that Petitioner was permanently or temporarily disabled when she was discharged. (Tr. 234, 259, 274) Petitioner never submitted any information to Double Envelope from the time she returned to normal duties until the time of her termination which would indicate that she was permanently or temporarily disabled. (Tr. 234, 259, 274). Disability ratings were not issued on Petitioner's right hand until after she was terminated from Double Envelope. (Tr. 112-13) According to Petitioner's understanding, she was not diagnosed as having permanent impairment to her left wrist until after her termination from employment at Double Envelope. (Tr. 112-13) Shortly after her termination from Double Envelope, Petitioner understood from Ramandan Hand Institute that she should not return to the type of work she had been doing at Double Envelope. (Tr. 109) As a result, Petitioner has never applied for employment with an envelope manufacturing company since her termination on July 14, 1989. (Tr. 109) On September 5, 1989, Petitioner filed a timely charge of discrimination with the Florida Commission on Human Relations (FCHR). This charge was signed by Petitioner under oath and, according to Petitioner, was accurate at the time. (Tr. 114, R. Ex 18) In her charge of discrimination, Petitioner referred to her handicap as "permanent damage to my left wrist." Petitioner did not mention her right hand or thumb anywhere in her charge of discrimination. (Tr. 115, R. Ex. 18) In her charge of discrimination, Petitioner asserted under oath that "Ms. Vicki Williams, on July 14, 1989, also wasted four boxes of envelopes on job no. 3327295, but was not reprimanded or terminated." (R. Ex. 18) Ms. Williams testified, without any rebuttal, that she did not run four boxes of defective envelopes on that day or any other day. (Tr. 187) Petitioner stated that in 1989 Mr. Durette allegedly referred to Petitioner and Deborah Turbyfield as "goddam cripples' or "goddam invalids." Mr. Durette denied making such a statement. (Tr. 116-17, 190-91, 234) Double Envelope has several employees who have a physical disability of some type including: John Durette (50% disability in left thumb) Doug Milligan (tips of two fingers missing) Betty Martin (cut finger tip off twice) Len Walton (1 leg; blind in one eye) (Tr. 235, 275) Double Envelope has terminated at least three other employees (Jean Robbins, Gail Montgomery, Ellen Vaughan) in recent years for running bad envelopes, where such other employees did not have any handicap or physical disability of which Double Envelope was aware. (Tr. 275) After investigating this matter, the Interim Executive Director of the FCHR issued a Notice of Determination on October 29, 1990, finding that "there is no reasonable cause to believe that an unlawful employment practice has occurred." (R. Ex. 15) After Petitioner filed a Request for Redetermination and arguments were advanced by both parties, the Interim Executive Director of the FCHR concluded that the "initial determination properly found no reasonable cause to believe that an unlawful employment practice occurred." (R. Ex. 16)
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence contained in the record and the demeanor and credibility of the witnesses, it is RECOMMENDED Petitioner's Petition of Relief from Unlawful Employment Practice should be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February 1992. STEPHEN F. DEAN 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 26th day of February 1992. APPENDIX The Respondent filed a Proposed Recommended Order which contained proposed findings of fact. These proposed findings were read and considered. The following states which findings were adopted, and which were rejected and why: Paragraphs 1-16 Adopted. Paragraph 17 Rejected. Contrary to the most credible evidence. Paragraph 18-20 Adopted. Paragraph 21 Rejected. Irrelevant. Paragraph 22-26 Adopted. Paragraph 27 Although true, the warning in Paragraph 28 is the important thing. Paragraph 28-40 Adopted. Paragraph 41 Rewritten. Paragraph 42-54 Adopted. Paragraph 55 Facts added to Paragraph 54. Paragraph 56-79 Adopted. Paragraph 80 Rejected. Contrary to the most credible evidence. Paragraph 81-84 Adopted. COPIES FURNISHED: Alicia A. Hart, pro se 1037 East 222nd Street Bronx, New York 10469 Robert G. Riegel, Jr., Esquire Coffman, Coleman, Andrews & Grogan, P.A. 2065 Herschel Street Jacksonville, Florida 32203 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue is whether Respondent, Model 2000, Inc., a talent agency, violated Sections 468.402(1)(d), 468.402(1)(e), 468.402(1)(s), 468.402(t), 468.410(2), 468.410(3), 468.412(6) and 468.413(2)(e), Florida Statutes, through solicitation, fraud, misrepresentation, concealment, false promises, false pretenses, exploitation, trick, scheme, or device, exercise of undue influence, requiring photography services as a prerequisite condition of employment, and failure to provide contracts of representation as alleged in each of the 15 separate Administrative Complaints filed in this cause.
Findings Of Fact Petitioner is responsible for the licensing and regulation of talent agents in Florida. Authority for the licensure and regulation is set forth in Chapter 468, Florida Statutes, and associated provisions of the Florida Administrative Code. At all times relevant and material to this inquiry, Respondent, Model 2000, Inc., was owned and operated by Nancy Sniffen, a.k.a. Nancy Keogh (Sniffen), and was licensed in the State of Florida as a Talent Agency, having been issued license number TA 0000618. The last known address for Respondent is 4852 West Gandy Boulevard, Tampa, Florida. At all times relevant to this case, Sniffen advertised in print, served, operated, managed, and held herself out to the public as a Talent Agent by and through Model 2000, Inc. In the Tampa Tribune daily newspaper under the headings, Classified, Employment General Section, Sniffen published the following ad and variations thereof: ACT/MODEL NOW Kids! Teens! Adults! For TV commercials, print, catalogs, movies. Get started the right way now!! Call 837-5700 for interview. No fees Model 2000 Inc. TA#681. As a direct result of the above advertisement, Renee Donaldson, Irma Avery, Charlene Mars, Gina Hughes, and Robert Mikolajczak responded to the Tampa Tribune advertisement. In the Weekly Planet, a hiring ad, similar in content to the Tampa Tribune ad, containing "Call 837-5700" was published by Model 2000, Inc. As a direct result of this advertisement in the Weekly Planet, Athena Lopez and Lisa Menuto responded. During the initial meeting between Sniffen and the witnesses herein, she made promises, guarantees, and statements known to be false when made regarding each individual's looks and their latent talents. They were told that each had great employment opportunities as models, and with her connections with several department stores, J.C. Penny, Beall's, and Dillards, and her connections with their catalog companies, each model was assured of employment. Based upon their individual looks and ethnic differences, Sniffen stated to one or more of the witnesses who testified that there was: "a high demand for ethnic models" (non-whites), "lots of job for Hispanics," "abundance for work for people with your looks," "they are looking for someone your age," and "there is a demand and need for someone like you." Sniffen intended these statement to induce individuals to rely upon her assessment and expertise as a modeling agent to secure employment. At the time Sniffen made the above statements, she knew or should have known that employment opportunities for models required more than her one-look assessment. Sniffen assured each witness that "there was a lot of work in the area"; "companies were looking for people like [sic]"; "have so much work and not enough models to fill jobs"; "I'm affiliated with J.C. Penny, Burdines, and Dillards in their casting area for hiring for photo shots"; and "Florida is number one in hiring for print work." Based upon these representations or variations thereof, Athena Lopez, Irma Avery, Charlene Mars, Fiona West (for her daughter Christy West), Lisa Menuto, Robert Mikolajaczak, Gina Hughes (for her daughter Gabriella Hughes), Tom Stanton, and Nelita Parris agreed to have their photographs taken and agreed to engage Sniffen as their respective modeling agent and representative. The record contains no evidence that Sniffen presently had or had in the past "affiliations" with any of the major chain stores or their casting departments. During the initial meeting with these witnesses, Sniffen required them, as a condition precedent to beginning their modeling career, to have photographs made. These photographs were to be taken by Sniffen's staff photographers, and from those photographs each model was required to have composite cards printed at an additional cost. Based upon the representations made by Sniffen requiring each model to have composite card photography, each witness agreed and paid Sniffen a photograph and composite card fee. The witnesses below made payments either in cash and/or by credit card to have their photographs taken by Sniffen's photographers at a location she designated. Spencer Borisoff $934.07 Tom Stanton $855.00 Athena Lopez $466.94 Lisa Menuto $693.00 Gina Hughes $1,040.82 Robert Mikolijcak $347.00 Aaliyah Womack $603.92 Charlene Mars $261.15 Irma Avery $774.90 Nelita Parris $150.00 Christy West3 $855.00 Nelita Parris $150.00 No witness hereinabove secured employment with any company as a result of the composite card photographs. Sniffen's representation as their talent agent that composite cards were a pre-employment requirement in the modeling business was untrue and knowingly made with the intent to, and in fact did, cause each witnesses to reply thereon to their determinant. Sniffen hired Anthony Guagliardo, a Florida-licensed public service photographer since 1999, as one of her three photographers to take photographs of her clients. From November 1999 to April 2000, Guagliardo worked for Sniffen taking photographs of her clients. Sniffen called the Photo Hut were he worked seeking a photographer that would assist her with photographing her clients who came in to have their composite cards made. Sniffen's initial phone conversation at Photo Hut was with another person on duty who asked other employees if anyone was interested in part-time work. After a brief conversation, Guagliardo agreed to be a photographer and began working for Model 2000, Inc. According to his testimony, Guarliardo's daily employment hours were from 9:00 a.m. to 5/6:00 p.m. daily. He worked infrequently on Saturdays and Sundays. For his photography services, he was paid $25.00 per hour. During a routine day, Guagliardo testified that as many as 20 persons would arrive to have their pictures taken, and he would take 18 shots of each client in three different poses or positions. Mr. Guagliardo testified that a bulk purchase of film reduced cost of each roll of film to $2.00 per roll. The contact sheet cost $20.00 per sheet from which 72 photographs were made. A single roll of film was needed to photograph two clients. The cost to Sniffen for one hour of the photographer's time, a roll of film, and two contact sheets averaged $65. The average amount Sniffen charged each of the 11 clients listed above for their photo-shoot was $583.00 each. During the time he was on duty, Guagliardo testified that normally two additional photographers were also working doing photo shoots for Sniffen. The evidence clearly demonstrates that Sniffen advertised to attract customers, each of whom she required payment for photographs upon her representations that composite photograph cards were a pre-employment requirement for modeling. The evidence sufficiently demonstrates that Sniffen had no honest intent; her singular purpose was financial gain, and her means was the photography/composite card requirement. Once monies were paid, few of the witnesses were able to contact Sniffen and none secured modeling employment through Sniffen's efforts. The models, believing Sniffen's assurances that composite card photographs were necessary for securing employment in modeling, later came to realize Sniffen's intent was only to secure payment for the photo sessions. Sniffen's continued refusals to answer phone calls, to communicate with the witnesses after composite card payments were made, and the lack of leads and/or contacts from potential employers demonstrated her single-minded purpose not to assist them as their modeling agent. They were intentionally misled by Sniffen's false promises. The Agency proved the allegations in the following Administrative Complaints: DOAH 02-2982 - Spencer Borisoff DOAH 02-2983 - Tom Stanton DOAH 02-2984 - Athena Lopez DOAH 02-2985 - Lisa Menuto DOAH 02-2988 - Gina Hughes DOAH 02-2990 - Robert Mikolkczak DOAH 02-2992 - Aaliyah Womack DOAH 02-2993 - Charlene Mars DOAH 02-2994 - Irma Avery DOAH 02-2995 - Nelita Parris DOAH 02-2996 - Christy West The Agency presented no evidence concerning the administrative complaints below and have not met its required burden of proof. DOAH 02-2986 - Bilan Evans DOAH 02-2987 - Louis Kelbs DOAH 02-2989 - John Greene DOAH 02-2991 - Van Saint Meyer
Recommendation Upon consideration of the facts found, the evidence admitted, and the Conclusions of Law reached, it is hereby RECOMMENDED that: Petitioner enter a final order dismissing the following Administrative Complaints: DOAH Case No 02-2986; DOAH Case No. 02-2987; DOAH Case No. 02-2989; and DOAH Case No. 02-2991. It is further Recommended that: Petitioner enter a final order finding Respondent in violation of Section 468.413(2), (3) and (4), Florida Statutes, and impose the following penalties: Require Respondent to make restitution to the Complainants below within 60 days: Case Nos. Complainants Amount DOAH 02-2982 Spencer Borisoff $934.07 DOAH 02-2983 Tom Stanton $855.00 DOAH 02-2984 Athena Lopez $466.94 DOAH 02-2985 Lisa Menuto $693.02 DOAH 02-2988 Gina Hughes $1,040.82 DOAH 02-2990 Robert Mikolkczak $347.00 DOAH 02-2992 Aaliyah Womack $603.92 DOAH 02-2993 Charlene Mars $261.15 DOAH 02-2994 Irma Avery $774.90 DOAH 02-2995 Nelita Parris $150.00 DOAH 02-2996 Christy West $855.00 Impose a fine in the amount of $1,000 for each of the following Administrative Complaints: DOAH Case No. 02-2982; DOAH Case No. 02-2983; DOAH Case No. 02-2984; DOAH Case No. 02-2985; DOAH Case No. 02-2988; DOAH Case No. 02-2990; DOAH Case No. 02-2992; DOAH Case No. 02-2993; DOAH Case No. 02-2994; DOAH Case No. 02-2995; and DOAH Case No. 02-2996, for a total of $11,000 in fines. Permanent revocation of Respondent's license. Should Respondent fail to timely comply with full payment of the restitutions and the fines as herein ordered, the Agency pursue those sanctions as provided in Sections 468.413(2) and 468.413(4), Florida Statutes. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 10th day of January, 2003.
Findings Of Fact Sandor Koltay, Petitioner herein, is an electronic repair dealer registrant who holds registration no. 2615. William C. Kimbrel, Electronic Registration Bureau Chief since approximately April 12, 1971, is in charge of overseeing and supervising the Electronic Repair Dealer Registration Division. During early 1972, Kimbrel ordered two colored TV set which were shipped to the Miami Division Office, for use in checking repair dealer registrants who were the subject of complaints from collsumers. Joseph Hytha, an electronic inspector-investigator, working under Kimbrel for the past three years was employed by RCA for approximately 20 years in various positions of responsibility. He also was employed by Teledyne Corporation and supervised as many as 30 technicians. During his employ:nent career as an electronic repairman, he has repaired in excess of approximately 40,000 TV sets. He has been qualified as an expert in the courts of Duval and Volusia counties. Evidence reveals that the Bureau had received some complaints about the quality of workmanship engaged in by the Petitioner and working through tile assistance of the Consumer Affairs Division of Plnellas County, the Respondent used one of the referenced TV sets which was repaiied and marked and given to a citizen to be repaired by the Petitioner. The TV set was marked on the cabinet, chassis, the picture tube and the high voltage cage. Prior to being given to the citizen for repair, the set was initially checked by DivisIon employees Uytha, Stanley T. Crocker, an electronic inspector-investigator and Richard Hughes, a Division employee who is also a certified electronic technician. Crocker removed the tubes from the set and placed them in a cathode-ray tester and Hughes recorded the data with employee Hytha noting and checking all functions (State's Exhibit #3). During the examination by the Division, the filaments were closed and there was continuity in the picture tube. All tubes were marked by a nick on the number one pin for each tube removed from the set. The focus tube was removed from the set and scientifically knocked out to get a "no picture" condition. (State's Exhibit #4) initially, the set was given to Doris Dano, an employee of the Pinellas County Consumer Affairs Division, who called Petitioner to get the TV serviced. The "no picture" condition was shown to a Mr. Richards, who is also a Consumer Affairs employee, prior to the time that the Petitioner was called. John K. Kyle, a Pinellas County resident was given the set since he lived in the service area in which the Petitioner operated. When the TV set was carried to Kyle's apartment, he called the Petitioner who came and examined the set. Kyle explained to Petitioner that "he had no picutre and therefore he probably needed a new picture tube." Koltay examined the set and stated that it required a new tube after an examiniation of approximately 15 to 20 minutes. Kyle was explained his various options and after Petitioner used his phone, he was given several quotes based on estimates that Petitioner had received from two suppliers for various quality and guarantees on picture tubes. The evidence reveals that while examining the set, .the Petitioner commented that the set was dirty and called Kyle ever to the back of the set with the curtains drawn in the apartment to show him that the picture tube was not lighting up and therefore the picture tube was defective. The Petitioner was instructed by Kyle to use the better of the two picture tubes discussed and Petitioner gave him a quote of $210.00. The set was repaired for this price and it was redelivered to Kyle as agreed. Petitioner carried the set to his shop which is located at 3580- 66th Avenue North, in Pinellas Park and replaced the tube with a Grade C (used) Montgomery Ward Airline tube. Prior to installing the new tube, Petitioner testified that he tried to "spark" the tube. After conducting the "spark" test, he was certain that the tube was defective as he had suspected at Kyle's apartment. However, after he installed the new tube, the set still would net play and he checked the focus tube which was replaced. Thereafter the Petitioner made some adjustments to the set and when it was in good operating condition, he phoned Kyle and made an appointment to return the set. Petitioner admitted that he used a "1AV" tube as opposed to a "2AV2" tube inasmuch as the tubes are interchangeable and in fact some manufacturers suggest such a replacement with the original "2AV2" tube malfunctions. Later that day, Deputy Poorbaugh, who assisted in the investigation of the Petitioner beginning sometime around May 19,.1977, executed an affidavit, obtained a warrant and searched the Petitioner's shop after the set was returned to Kyle. Depuy PoorBaugh confiscated the tube which the Petitioner had removed from Kyle's set. The Petitioner had the tube marked "re-do." When questioned by Deputy Poorbaugh, Petitioner told him that he did not use a picture tube tester since his tester was inoperable, however, he had used other comparable tests and that the filament did not light up. Respecting the allegation that the Respondent charged for and applied a cleaning agent to Kyle's VHF tuner, the evidence revelas that Koltay, as a matter of practice cleans all TV tuners since the St. Petersburg area is very humid and cleaning the tuner seems to be a means of preventative maintenance which alleviates future problems. For this service, Petitioner did not charge Kyle a fee. When Deputy Poorbaugh seized the picture tube removed from Kyle's set, it was turned over to the State Attorney's office after it has been transported to the Division Office for a check. Richard Hughes, a certified electronic technician (CET) with approximately 31 years experience in the television repair field, testified that when the tube that had been removed from Kyle's set was checked, it had consistent readings of 11.9 on all three guns. (State's Exhibit #4 composite). Hughes testified that readings on new sets varied from 11.5 to 12. He estimated that based on the 20,000 to 25,000 sets of this type which he has repaired, he never witnessed an intermittent type fi1ament in a set of this type. He further testified on cross-examination that newer TV sets are not easily shaken by jostling because the elements are spot welded ridgidly in position. Sometime during the year 1976, Respondent's agent visited the Petitioner's home and demanded to inspect his invoice and other operating receipts. Petitioner refused, explaining that his wife, who maintained his books and invoices, was not at home. After an exchange of harsh words, Petitioner asked the agents to leave because he was "about to lose his temper". The following day, the Petitioner and his wife made phone calls to the Respondent's Division office in Tampa and a call was also made to the headquarters office in Tallahassee. Petitioner was advised to carry his invoices and all other operating receipts to the Tampa Office for inspection, which was done. Sandor T. Koltay, (Petitioner) has been in business at the above address for more than seven years and has approximately 15 years experience in television repair service. He has taken basic electronic courses, however, he is net a certified electronics technician. Petitioner's business phone rings at his home and he admits to the requirement that he make available to the Division all records and invoices upon request. He testified that this was done in all cases. Petitioner expressed an opinion that the State was "out to get him" based on the prior visit of Division employees Schreder and Crocker. He opined that they attempted to "shake him doqn" for approximately $3,000.00 based on six alleged violations. Sandra Koltay, Petitioner's wife, testified that she recalled the incident involving the Respondent's agents Crocker and Hytha as having occurred during the summer of 1975. She testified that the agents threatened her husband and told him that "he was in a great deal of trouble; that complaints had been received from numerous customers and that he owed six violations at $500.00 each for a total aalount of $3,000.00." She persuaded her husband to call the Bureau Chief in Tallahassee and express his desire to cooperate with the Division in any way possible. Kimbrel suggested that Petitioner carry all files for the previous six months to Tampa, for inspection. As stated, the records were carried to Tampa for inspection. Joseph W. Hytha recalled the visit to Petitioner's home during the summer of 1975 with agent Crocker. He testified that this visit was prompted by the Division's receipt of two irregular complaints and the Department's desire to discuss other matters. He testified that the invoices were illegible and inasmuch as they were at Petitioner's home, (office) they decided to carry out a regular office inspection. Mr. Hytha denied any threats having been voiced by himself or agent Crocker. Warren Quibelle, a CET with approximately 30 years in the electronic repair service business, testified that he had, during his career, worked on many RCA picture tubes such as the one in question here and that he has witnessed numerous "open" filament or intermittent problems problems existing on such tubes. BH testified that he has personally rejected TV tubes based on intermittent filaments. He testified that this is especially so in this instance inasmuch as the set was approximately five years old when it was serviced by the Petitioiier and that the average tube life span is five to seven years. Quibelle expressed doubts as to the accuracy of the 11.9 reading on a five year old picture tube. He further said that there was no way to determine whether or not an intermittent problem existed unless the problem occurs when the technician is present. Numerous witnesses testified that they had had their TV sets repaired by the Petitioner and expressed their opinion that he was reliable, honest and trustworthy. They all testified that they never voiced any complaint to the State or the Division of Consumer Affairs. (Witnesses Neal and Irving)
Conclusions Although the record reveals that there was at least a one day's delay in the Division's ability to inspect Petitioner's records - as requested, the person who was denied the inspection, Stanley Crocker, was not present and therefore it is difficult to determine on this record whether or not the request was actually made. Respecting the allegation that the Petitioner made untrue and misleading statements to John K. Kyle to the effect that he needed a new picture tube, the evidence reveals that the Petitioner, in fact, replaced the tube based on his examination which revealed that the filament in the picture tube was open. This is a problem of an intermittent type and witnesses for the Petitioner and the Respondent both testified that an intermittent problem is one which "is not apparent...and it cannot be traced. The only time such a problem can be traced is when the problem actually exists". This is the intermittent condition warranty given to Messr. Kyle and which apparently has the Respondent's imprimatur. I therefore conclude that these allegations have not been established by competent and substantial evidence nor has the allegation been substantiated that the Petitioner knowingly replaced the tube in Kyle's set when he knowingly was aware that the tube was not defective and replacement was not necessary as alleged as being violative of Chapter 468.159(1)(a) and (b), Florida Statutes. Respecting the allegation that the Petitioner charged for and applied a cleaning agent to Kyle's VHP tuner, the evidence reveals that no charge was made for the tuner cleaning repair. (State's Exhibit #5) Respecting the allegation that the Petitioner presented to John K. Kyle an illegible invoice ill violation of Rules and Regulations 7E-2.10, the evidence reveals that although Petitioner's handwriting leaves something to be desired, the undersigned can read such and therefore I cannot conclude that it is illegible in violation of Rule and Regulation 7B-2.10 of the Department's rules. The undersigned was unable to find any requirement in Florida Statute 468.155 to the effect that the Petitioner was required to notify the Division of a change of home address on or about June 1, 1976, as alleged in paragraph seven of the amended notice to show cause filed herein. It was further noted that Petitioner's registration has his business address denoted thereon and was available there at all times. Finally, I conclude that Petitioner, in fact, installed a Montgomery Ward- Airline brand picture tube in Kyle's TV set as alleged in paragraph six of the amended notice to show cause filed herein. The remaining allegations in paragraph six are rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Petitioner be assessed a civil penalty of $250.00 based on the violation found above. In all other respects I hereby recommend that the allegations contained in the amended notice to show cause filed herein be dismissed. RECOMMENDED this 1st day of December, 1977, Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Richard E. Gentry, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 Charles H. Scully, Esquire 445-31st Street, North Suite 204 St. Petersburg, Florida 33713 Charles E. H. Beck, Esquire 3806 Central Avenue St. Petersburg, Florida 33711 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF BUSINESS REGULATION DIVISION OF GENERAL REGULATION STATE OF FLORIDA SANDOR KOLTAY t/a/ CITY TV, Petitioner, vs. CASE NO. 77-1531 STATE OF FLORIDA, DIVISION OF GENERAL REGULATION, Respondent. /
The Issue Whether Petitioner lacks the moral character to be licensed as a Florida real estate salesperson.
Findings Of Fact On May 4, 2004, Petitioner, Rene Anthony Acker, filed an application for licensure with the Florida Real Estate Commission as a real estate salesperson. On that application, Acker revealed that he had pled nolo contendere and was placed on probation for twelve months on July 2, 2003, for fraudulent use of a credit card. At hearing, Acker testified regarding the events that led to his arrest. In November of 2003 during the beginning of the Christmas shopping season, while he was a clerk at a Target Department Store, a person of interest to local law enforcement for credit card theft and who was under surveillance, presented merchandise to Acker for purchase with a credit card. The card was in the name of someone other than the customer. The card was accepted by Acker and the system, and the transaction completed. Subsequently, the customer returned with a high- dollar item and attempted to purchase it with the same credit card. Acker accepted the card, but the system refused to accept the card on the second occasion. Several months later, the deputy sheriff, who was working the case, came to Acker and asked him to identify the customer as part of an effort to make a case against the customer, a person with whom Acker was acquainted as the son of the owner of a restaurant where Acker had worked as a waiter. Acker told the deputy that he had no independent recollection of the transaction, and could not identify the customer from the surveillance camera pictures he was shown. The deputy indicated that if Acker did not cooperate and identify the individual, Acker would be charged with credit card fraud. Acker stated that he could not identify the customer from the photographs as the person with whom he was acquainted. Acker was subsequently charged with credit card fraud. After consulting an attorney, Acker pled nolo contendere to the charge. It was clear that this was a plea of convenience under the plea agreement that was worked out. The only evidence introduced by the Commission was Acker's file that reflected that Acker revealed the plea on his application and the court records of his plea, probation, and early release from probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: It is recommended that application of Petitioner be granted pursuant to the Commission's discretion upon consideration of the matters presented in mitigation. DONE AND ENTERED this 12th day of August, 2005, in Tallahassee, Leon County, Florida. S __ STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 2005. COPIES FURNISHED: Rene Anthony Acker 138 Via Tisdelle Orange Park, Florida 32073 Barbara Rockhill Edwards, Esquire Department of Legal Affairs Administrative Law Division The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Guy Sanchez, Chairman Florida Real Estate Commission 400 West Robinson Street, Suite 801N Orlando, Florida 32801
