The Issue Whether, and to what extent, Magnolia Valley Services, Inc., should be allowed to increase its water and sewer service rates.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: I. The Application By application filed on August 14, 1980, APPLICANT sought authority to increase its water and sewer rates, on an interim and permanent basis, in amounts sufficient to produce $60,847 in annual gross water revenues, and $100,768 in sewer revenues. By Order No. 9571 dated September 30, 1980, the COMMISSION authorized an interim sewer revenue increase, under bond, of $8,205, and denied an interim increase in water revenues. The COMMISSION has approved APPLICANT's use of a test year ending December 31, 1979. At hearing, the APPLICANT amended its application by reducing its requested water revenues to $50,287, and increasing requested sewer revenues to $101,522. (Testimony of Gregg, Prehearing Statement; P-4.) II. Depreciation Rate Depreciation is a method of allocating the cost of fixed assets to their estimated useful life. As an above-the-line operating expense, it affects a utility's net operating income; by its impact on accumulated depreciation of plant-in-service and accumulated amortization of contributions-in-aid-of- construction, it also effects calculation of rate base. (Testimony of Walker, Gregg; P-3, R-1.) The COMMISSION has promulgated no rules as guidelines which establish generally, or in particular, the useful life of utility assets or the method by which their depreciation should be calculated. In practice, however, it has allowed utilities to apply a straight-line 2.5 percent depreciation rate and a 40-year useful life to all depreciable assets. Any deviation from this 2.5 percent across-the-board rate must be justified by the utility. (Testimony of Heiker.) Here, the APPLICANT proposes depreciation rates which vary according to the estimated useful life of the plant or equipment involved. In contends that its shorter estimates of useful life of specific assets reflect reality and actual experience more accurately than an across-the-board 40-year life standard. For example, rate meters are routinely replaced on a 20-year basis and lack of reserve capacity and changing voltages have substantially reduced the expected life of electrical motors and equipment. The APPLICANT's estimates of useful life were established by the opinion of a utility consultant and engineer whose qualifications went unchallenged by the COMMISSION; no competent evidence was offered to discredit or rebut his conclusions. The COMMISSION's engineer candidly admitted that depreciation "is really a nebulous thing," (Tr. 64) and declined to assert that the APPLICANT's depreciation schedules were erroneous. (Tr. 69.) The COMMISSION disputed the APPLICANT's depreciation schedules by referring to an unpublished 1973 staff memorandum retained at the agency's offices and not produced at hearing. That memorandum purportedly adopted 1973 depreciation rates developed by the American Water Works Association. Upon motion of APPLICANT, testimony concerning the contents of that memorandum was subsequently stricken. The COMMISSION engineer also testified that he was unfamiliar, even generally, with how the American Water Works Association's depreciation rates were derived. In light of the quality of the evidence presented of record, the APPLICANT's depreciation rates (including estimated useful life) are accepted as persuasive. (Testimony of Heiker, Gregg; P-1, P-3.) III. Attrition Allowance The APPLICANT seeks to include in operating expenses an attrition allowance of $1,992 for water and $8,161 for sewer operations based on alleged attrition it experienced between 1975 and 1979. It defines attrition as increased annual expenses which cannot be recovered at the time they are incurred. The COMMISSION opposes the requested attrition allowance on the grounds that: (1) the attrition study performed by the APPLICANT is unreliable, and (2) that the recent enactment of Section 367.081(4), Florida Statutes (Supp. 1980), which allows the passing through of certain increased expenses to customers, eliminates the need for a special attrition allowance. (Testimony of Gregg, Walker; P-2.) The COMMISSION's position is well taken. First, a major portion of the cost increases experienced by the APPLICANT in the past will be able to be passed through to its customers pursuant to Section 367.081, Florida Statutes (Supp. 1980). 2/ Those costs include increased power costs and ad valorem taxes. The APPLICANT responds that Section 367.081(4), supra, will not enable it to fully recover increasing expenses when they occur because rates may be adjusted, based on increased operating costs, not more than twice a year. Section 367.081(4)(e), supra. However, this new law should be implemented before it is pronounced inadequate to fulfill its purpose. Experience may show that major costs increase sporadically, or at predictable cycles, which facilitate carefully timed rate increases under Section 367.081(4), and that two such increases a year may prove fully adequate. (Testimony of Gregg, Walker; P- 2, R-1.) Secondly, the attrition study (P-2) submitted by the APPLICANT does not reasonably justify, or provide a reliable basis for projecting an attrition rate into the future. The 1975-1979 historical cost increases have not occurred at a constant rate. The 1979 increase in water operation costs was less than one- half of the average increase experienced between 1975 and 1979; in sewer operations, the 1979 cost increases were less than one-third of the four-year average. Moreover, a major factor in increased sewer costs was the 1978 conversion to a spray irrigation, total retention, sewage treatment system. Since this system meets the 1983 federal Clean Water Act standard of no- discharge, it is unlikely that increased operational costs relating to treatment changes will continue to occur. In short, the 1975-1979 historical cost increases of APPLICANT have been sporadic and do not support an assumption that they will continue to occur at the same rate. To include an attrition allowance based on such an assumption would be unwarranted. (Testimony of Gregg, Walker; P-2, R-1.) IV. Allowance of an Undocumented Operating Charge The APPLICANT proposed a $600 sewer expense item which was opposed by the COMMISSION because of lack of documentation. In response, the APPLICANT submitted--immediately prior to hearing--a cancelled check in the amount of $1,000. The discrepancy between the two amounts remains unexplained. Such action falls short of providing adequate documentation, and the proposed $600 sewer expense item must therefore be rejected. See, 25-10.77, FAC. V. Elements of Ratemaking and Applicant's Gross Revenue Requirements The parties agree: (1) that 14.5 percent is a fair and reasonable rate of return on rate base and reflects the actual cost of capital to APPLICANT; that the new rates should be designed in accordance with the base facility design concept, and that the quality of APPLICANT's water and sewer service is satisfactory. The remaining elements of ratemaking--rate base and net operating income--are not in dispute, and are depicted below: 3/ RATE BASE Test Year Ended 12/31/79 Water Sewer Plant in Service Accumulated $269,887 $511,200 Depreciation $(37,384) 4/ $(54,685) Net Plant $232,503 $456,515 Contributions in Aid of Construction (179,251) (360,055) Accumulated Amortization 22,421 Net Contributions in Aid of 4/ 41,231 4/ Construction (156,830) (318,824) Working Capital 3,515 7,082 TOTAL $ 79,188 $144,773 OPERATING STATEMENT Test Year Ended 12/31/79 Water Sewer Operating Revenues $53,300 $72,608 Operating Expenses: Operations 25,552 45,353 Depreciation 3,848 5/ 4,876 5/ Maintenance 2,572 6/ 11,306 6/ Amortization 1,439 Taxes Other Than Income 4,654 7/ 8,338 7/ TOTAL Operating Expenses $36,626 $71,312 Net Operating Income$16,674 $ 1,296 By applying a 14.5 percent rate of return against a rate base Of $79,188 for water and $144,773 for sewer, it is concluded that the APPLICANT should be allowed an opportunity to earn a return, or net operating income of $11,482 for water and $20,992 for sewer. Annual gross revenues of $48,108 (water) and $92,304 (sewer) are required to produce such a return--resulting in a net annual reduction of water revenues of $5,192 and a net increase of $19,696 in sewer revenues. VI. Interruption of Service Treatment Without Advance Notice Although the overall quality of its service has been adequate, infra, the APPLICANT has unnecessarily inconvenienced customers by interrupting water service without advance notice. These interruptions were planned in advance and not made on an emergency basis. The APPLICANT failed to adequately explain or excuse its failure to give timely notice. (Testimony of Pepper.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Magnolia Valley Services, Inc., be authorized to file new rates structured on the base facility charge concept and designed to generate gross annual revenues of $48,108 for water operations and $92,304 for sewer operations, based on the average number of customers served during the test year. It is further RECOMMENDED that the utility be directed to strictly comply in the future with Section 25-10.56, Florida Administrative Code, by giving advance notice of service interruptions which are not emergency in nature. DONE AND ORDERED this 1st day of April, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1981.
Recommendation Based upon the foregoing, the Hearing Officer recommends that Petitioner's application for Low Income Energy Assistance Program benefits be denied. DONE and ORDERED this 5th day of November, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1981. COPIES FURNISHED: Ms. Rose Marie Johnson 311 Atlantic Avenue North Miami Beach, Florida 33160 Leonard Helfand, Esquire Department of HRS Suite 1040, Rhode Building 410 North West Second Avenue Miami, Florida 33128 David H. Pingree, Secretary Attn: Susan B. Kirkland, Esquire Department of HRS Building One, Room 406 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Anna Juanita and Bernard W. Mannon live together in an apartment on Madison Street in Marianna, Florida. He is 62 and she is 56 years of age. The two of them make up the household. Her health is not good, and certain respiratory problems might be alleviated by air conditioning. Mrs. Mannon has no income. Mr. Mannon has gross income of $298.40 biweekly from the hospital where he works. His own health may preclude his working there much longer. Monthly, the Mannons repay loans from their daughter ($50.00) and from a finance company, Associates Financial Services ($57.00). They also have substantial medical bills.
The Issue Whether the alleged violation exists and, if so, whether orders for corrective action should be made final against respondents or either of them?
Findings Of Fact On October 17, 1984, Sunshine acquired from R & F what had been a filling station at the corner of U.S. Highway 98 and Laurie Avenue in Bay County, Florida. The old gas pumps had been moved some time before October 17, 1984. Only loose pipe connections leading to the underground storage tanks remained. The deed K & F executed in favor of Sunshine made no mention of these tanks. Respondent's Exhibit No. 1. Sunshine later contracted with Jake Walters, who began construction the following April to convert the site into a convenience store with gas pumps. On January 25, 1985, long before bringing any petroleum product onto the property, Jake Walters' construction foreman, John Kenneth Barnes, began taking up the two-foot slab of concrete that overlay K & F's underground storage tanks. The ground underneath the concrete smelled of gasoline. James Guris, who was overseeing the job for Sunshine, ordered work stopped and told Harold Millis, Sunshine's vice-president for real estate and construction, about the feel and smell of the soil. When Mr. Millis learned of the situation, he decided that DER should be notified. Because by then it was too late in the day to reach DER, Jim Guris called DER's office in Panama City on the following Monday, January 28, 1985. He spoke to DER's Grady Swann, who told him to file a discharge notification form with DER. Mr. Swann said removal of the underground tanks could go forward. Before removing the storage tanks, Mr. Barnes, or somebody at his direction, measured the depth of the tanks with a stick to determine how deep to dig. In this way two or three inches of gasoline were discovered in the bottom of each tank. Even though workmen secured a pump and pumped gasoline from each underground tank (into a 500-gallon tank mounted on a truck), they were unable to pump the tanks completely dry. In each of the three underground tanks, about a half inch of gasoline remained. With a crane and lifting rigs, they raised the tanks in an upright position, without spilling any gasoline. Except inside where the half inch of gasoline stood, the tanks and appurtenant pipes and tubing were dry. Mr. Guris ordered pressure tests done on the tanks, each a cylinder some five feet in diameter. Two of the tanks passed this test, but the third failed. That tank had a hole approximately one quarter inch in diameter a little left of center, about half way up one end of the tank. Groundwater on the site came within four and a half or five feet of the surface in early February of 1985. Because it contains less than 10,000 parts per million total dissolved solids, it is properly classified as G-II. A marine clay separates the surficial aquifer from the Floridan, but the surficial aquifer recharges the Floridan. Northeast of where the storage tanks were dug up and 300 to 350 feet way a two-inch well 390 feet deep supplies water from the Floridan aquifer to three households. Nobody has detected any odor or taste of gasoline in water from those wells. Grady Swann took soil samples on site on February 8 and again on February 26, 1985. On his first visit, he noticed no sheen on the surface of the water standing in the area excavated around the old tanks, smelled no odor emanating from the standing water and did not take a sample. On his second visit, he did notice evidence of groundwater contamination and took water as well as soil samples. Mr. Swann returned on March 11, 1986, with Kenneth L. Busen and Mike Wilson of DER's Operation Response Team and used a power augur to put in temporary wells from which additional water samples were taken. These tests confirmed suspicions that the old gas tanks had leaked and revealed groundwater contamination attributable to gasoline including, in some samples, more than 1,000 times the allowable concentration of benzene. Gasoline seeping through soil leaves residual hydrocarbons which contaminate percolating rain or other groundwater moving through the same soil. Petitioner's Exhibit No. 6 depicts the probable initial configuration of the plume of hydrocarbons in the vicinity of the old tanks. Contamination is moving down gradient to the northeast, spreading out but growing more dilute. The steps called for by the proposed corrective orders are a reasonable way to mitigate environmental damage.
Findings Of Fact On June 20, 1981, Petitioner, Laverne A. Nolte, filed a household application for cooling assistance under the Low Income Energy Assistance Program with Respondent, Department of Health and Rehabilitative Services. Petitioner resides in Dade County, Florida, which is a part of the South Cooling Climatic Region for purposes of determining the level of assistance to be given claimants. Respondent reviewed Petitioner's application, and because she receives government assistance for electricity in the private housing project where she resides, determined that Petitioner lives in a household that is partially vulnerable to the rising cost of cooling energy. This means a governmental entity is partially responsible for paying a portion of her energy bill. According to Department regulations, Nolte was entitled to only $75 in energy assistance, and a check was issued to her for that amount. Applicant is the only member of her household. Her total monthly countable income is $238 which falls within acceptable income limitations prescribed by the Department. Except for living in a partially vulnerable household, Nolte was otherwise qualified to receive $290 in total cooling assistance benefits. Petitioner acknowledged that when her application was filed, she received $12 per month in governmental assistance to offset in part her electric bill. This was subsequently increased to $25 per month in July, 1981. However, she contends this aid is minimal in relation to her actual utility bill, and that it is unfair to cut her cooling assistance benefits to $75 for receiving such a small amount of aid.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the request of Petitioner, Laverne A. Nolte, for additional cooling assistance be DENIED. DONE AND ENTERED this 29th day of January, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1982. COPIES FURNISHED: Laverne A. Nolte 1301 Northwest Seventh Street, #212 Miami, Florida 33125 Leonard Helfand, Esquire Suite 1040 401 Northwest Second Avenue Miami, Florida 33128
The Issue Whether Petitioner is eligible for low income energy assistance as provided in Section 409.508, Florida Statutes (1980), Home Energy Assistance Program; Rules 10 CER 81-5 through 81-13, Low Income Energy Assistance Program, amended by Rules 10 CER 81-16 and 81-17, Florida Administrative Code.
Findings Of Fact Petitioner Samuel Gumpee requested a hearing by a letter received in the office of Respondent on July 31, 1981. After the required informal conference with a supervisor in the Respondent Department Petitioner requested a formal hearing. On June 5, 1981 Gumpee, a black male, filed a Household Application for low income energy assistance with the required Medical Certification for Cooling. He lives with one other person and receives food stamps. By Notice of Application Denial mailed June 26, 1981 Petitioner was informed that he was denied assistance for the reason that his monthly household income exceeded the maximum income limits for a household of his size. The action was taken by Respondent within 45 days of Petitioner's application, and he was promptly notified of the reason for denial of benefits. Petitioner did not dispute the evidence presented by Respondent Department but felt that assistance should have been based on need and that medicare payments should not be counted as monthly income. Petitioner Gumpee's monthly household income during the month of his application was $420.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered by the Respondent Department of Health and Rehabilitative Services denying low income energy benefits to Petitioner. DONE and ORDERED this 17th day of September, 1981, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 17th day of September, 1981. COPIES FURNISHED: Mr. Samuel Gumpee 1011 Hamilton Avenue Panama City, Florida 32401 John L. Pearce, Esquire Department of HRS 2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303 Alvin J. Taylor, Secretary Attn: Susan B. Kirkland, Esquire Department of HRS Building One, Room 406 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent is guilty of conduct which violates certain provisions of the Emerald Coast Utilities Authority (ECUA) policy manual amounting to conduct unbecoming an ECUA employee; theft; and violation of ECUA rules or policies concerning outside employment, by allegedly securing outside employment without completing a proper form and receiving advance approval for such outside employment.
Findings Of Fact The Petitioner Emerald Coast Utilities Authority (formerly Escambia County Utilities Authority) is an Agency of local government established pursuant to an enabling act of the Florida Legislature at Chapter 81-376 Laws of Florida, as amended. It is a Regional Water Supply Authority for purposes of Sections 163.01 and 373.1962, Florida Statutes (2006). It is thus given authority to supply utility services to persons and businesses residing in a defined area in Escambia County, Florida, including the provision of water utility service. It is authorized in that Act to employ personnel to secure the provision of such utility services and to regulate the conditions and terms of their employment, their retention, their hiring, and their termination, as well as other forms of employee discipline. It has provided for such regulation of its personnel through the adoption of a "Human Resources Policy Manual" (Manual). That Manual was adopted in accordance with Part 3, Chapter 112, Florida Statutes. The Respondent, at times pertinent hereto, was a utility service technician employed by the ECUA. During his tenure with the ECUA he worked for a number of different supervisors and essentially every district of the ECUA's service area. On April 1, 2006, the Respondent, John Crosby and his wife Patricia Crosby, took title by deed to residential property at 319 West Clay Street, in Pensacola, Florida. They begin renovating that house located at that address for use as a residence. Sometime during the next several months, either because work was being performed on the plumbing or because of inability to pay the water bill, the Respondent had the water service temporarily stopped. The account remained open, however, and was not closed or inactivated on the records of the ECUA. There was an amount billed and outstanding which was unpaid. On or about November 28, 2006, due to the unpaid water bill becoming significantly delinquent, a "cut-off order" to stop water service to the address at 319 West Clay Street was issued and an employee of the ECUA, Donald George, was sent to that address to cut-off the water service. When Mr. George went to 319 West Clay Street and opened the meter box, he saw a "straight pipe" device installed in the meter box and connected to the water line from the street to the house. This straight pipe, thus connected, had the effect of bypassing the water meter so that any water used at that address or residence would not be registered on the water meter and, therefore, it would be impossible to bill for that water. Mr. George called his supervisor, Joe Creary, and asked for instructions concerning this situation. Mr. Creary ordered him to remove the water meter and leave the premises. The next day he was sent back to those premises to turn the water off and to take the straight pipe out of the water line and utility box. He did so and gave the straight pipe device to Mr. Creary. Joel Roberts does Risk Management investigations, as well as performing as a work place Safety and Training Specialist for the ECUA. He received a report regarding the use of the straight pipe at 319 West Clay Street from Mr. Creary. He went to that address and observed the straight pipe installed in the water meter box in the water line to the house at that address and took pictures of it and the residence. He prepared an incident report and then made an investigation to establish who the last customer of record was. The last customer of record was the Respondent, John Crosby, who was still a customer of record on November 28, 2006, when the straight pipe was discovered. The photos of the straight pipe installed were taken November 29, 2006, before it was removed by Mr. George. The Respondent acknowledged that he had a straight pipe device in his possession. He kept it in his personal tool box. He maintained that he used it for making emergency service calls in the area near his home, using his own personal vehicle. He stated during the course of the investigation that he did not know how his straight pipe device became installed at the meter box at the subject property. He speculated that someone was trying to cast him in a bad light or playing a joke possibly, but he did not know who could have done it. During the investigatory phase of this proceeding, he acknowledged that the straight pipe device was his own. Later, he changed his story, to the effect that although he possessed a straight pipe device kept in his personal tool box, that the one placed in the meter box on his water line was not the same one. He maintained that later contention through his testimony at hearing. Several of the ECUA regional supervisors testified, essentially all of whom who had previously supervised the Respondent. Uniformly they established that there was no policy which permitted employees, such as the Respondent, to use their personal vehicles to make service calls after regular working hours or otherwise. They also established that there was no policy which allowed employees to keep or maintain company equipment in their personal possession away from the employment premises of the ECUA as, for instance, a straight pipe device such as the Respondent had possessed at times pertinent to this proceeding. During a February 9th, 2007, hearing conducted by the Petitioner, the Respondent denied placing the straight pipe in the meter box and denied knowledge of who may have done so. He did admit that the straight pipe was property of ECUA which he had previously used in the performance of official duties after hours when responding to "dirty water complaints." He admitted that the straight pipe, ECUA property, had been kept in his personal tool box, but later he changed his story to say that the straight pipe in the meter box was not his own because he had since found his own straight pipe device in another tool box. The fact remains, however, that the Respondent has had difficulty in his ability to keep his water service account current for the above address, and there is a delinquent outstanding balance on that account. The Respondent was the only person who could have benefited from installing the straight pipe in place of his water meter in order to obtain water free of charge, which he did. While it is possible that another person installed the straight pipe in place of the Respondent's water meter and that the testimony of the Respondent's fellow employees is untruthful, the preponderant, persuasive evidence reflects that the Respondent had the greatest motive and the best opportunity to install the straight pipe device and to thus wrongfully obtain free water service at his property. His explanations of how the straight pipe device might have been theoretically placed by some unidentified third party is self-serving testimony. It is testimony which defies logic and which is out- weighed by that of his co-workers to the contrary. The Respondent's testimony in these particulars is thus discounted and not accepted because of insufficient credibility. It has thus been established by preponderant, persuasive evidence that the Respondent is the party who installed the straight pipe device in the water meter box at the property at 319 West Clay Street, Pensacola, Florida, in order to divert un-metered water to the use of persons at that property which belonged to the ECUA. Such water has not been paid for in accordance with the approved rate structure of the ECUA for metered water. The testimony of Tina Shelton establishes that the Petitioner has adopted a code of ethics and a body of personal rules and regulations. These are incorporated in its Human Resources Policy Manual. She established that the current Manual is supplied to all employees; and also established, through Petitioner's Exhibit 11 and her testimony, that the Respondent received the Manual on July 20, 1999. She also established that the Respondent's outside employment with Tom Thumbs Stores, Inc., has not been the subject of any approval form submitted by the Respondent. She established that outside employment had not been approved by the Petitioner and that therefore the Respondent has violated Section A-9(5), of the referenced manual concerning outside employment.
Findings Of Fact Petitioner, Harry M. Noland, Jr., learned of the low income energy assistance program through a notice received with his telephone bill. That program is administered by respondent, Department of Health and Rehabilitative Services (HRS). On December 6, 1983 Noland filled out an application for low income energy assistance at the Cocoa office of HRS. He did so after being advised by HRS personnel that he was qualified to do so. The application indicated that Noland resided with his wife at 3915 Indian River Drive, Cocoa, Florida. It also reflected that he and his wife had no income whatsoever at the time the application was filed, but that he had applied for food stamps. The application was reviewed by a Ms. J. Bunch, an HRS temporary worker, who sent Noland a "request for information" on December 6, 1983. It read as follows: Needed is your income for the month of December, 1983. If you receives (sic) Social Security or SSI a letter from the Social Security office is needed, if you are working a verification of income form is enclosed to be filled out by employer and return it to this office. If you are unemployed a statement is needed explaining how you (are) paying expenses. The statement has to (be) signed and dated and (send) it to this office. The notice stated that the above information had to be brought or mailed to the office no later than December 20, 1983 or the application would be denied. Noland received the above notice and on December 15 prepared the following written reply: This is to verify that I have been unemployed since September 30, 1983, and presently have no prospects for employment. He hand-delivered his reply to Ms. Bunch the same day. She asked how he was paying his current expenses, and Noland told her he had no funds and was therefore unable to pay any current bills and expenses. Bunch accepted this oral reply, told Noland it was "okay", and gave him the impression that no further information was needed to comply with the notice mailed on December 6. In December, 1983 HRS policy was for the program workers to make a written notation in an applicant's file when any clarifying information was obtained by telephone or when the applicant (Noland) was personally interviewed. For some unexplained reason, no written notation was made by Bunch in Noland's file. Noland was not told by Bunch that his application was still incomplete, and she did not request him to put his oral reply in writing. Had she done so, Noland would have provided further written information on a timely basis. Except for the "incomplete" written reply, Noland otherwise qualified for assistance. At a later undisclosed date, Noland's application was reviewed and found to be deficient because he had not fully responded to the "request for information". Thereafter, it sent a notice of denial to Noland on February 15, 1984. That prompted the instant proceeding. HRS processed some 3,287 applications at its Cocoa office between November 1 and December 16, 1983, the last day for filing the same. Only three temporary workers were employed to perform this task. The HRS representative testified that workers were extremely busy during the time Noland visited the Cocoa office due to the manpower shortage and time constraints imposed on that office.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Harry M. Noland, Jr. for low income energy assistance be approved and that he be given the appropriate benefits under Rule 10C-29.19, Florida Administrative Code. DONE and ENTERED this 3rd day of April, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1984. COPIES FURNISHED: Mr. Harry M. Noland, Jr. 3915 Indiana River Drive Cocoa, Florida 32922 Gary L. Clark, Esquire 400 West Robinson Street Suite 912 Orlando, Florida 32801 David H. Pingree, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact The Petitioner is fully eligible to receive benefits under the Low Income Energy Assistance Program. The only issue is as to the amount of benefits she is entitled to receive. On her application, the Petitioner stated that she had been receiving a twenty-dollar stipend from the Federal Department of Housing and Urban Development to assist her with her utilities payment. After December, 1980, the Petitioner ceased receiving the stipend, and since that date she has not received it. She receives no other assistance on her utility bills. The Petitioner has outstanding electric utility bills of over $500.00. She is no able to pay this bill, and her electricity has been off for approximately two months. The Petitioner's total income is $175.00 per month which she receives as an AFDC Payment.
The Issue The issue presented for decision herein is whether or not the Respondent, by failing to advise a prospective purchaser that the residence he was selling contained a solar water heater which was on lease and that therefore the seller could not sell it with the house, engaged in acts and/or conduct amounting to a concealment, misrepresentation, fraud and dishonest dealing in a business transaction violative of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings: Respondent is and has been at all times material hereto a licensed real estate salesperson in the State of Florida and has been issued license number 0395102. Respondent, during times material herein, was employed as a real estate salesperson with Caldwell Banker/Clock Company, 7825 Hollywood Blvd., Hollywood, Florida. On or about July 29, 1983, Respondent solicited and obtained a listing agreement from her brother, Joseph Donnelly, giving exclusive right of sale to the Clock Company Realtors of real estate owned by her brother at 3300 SW 40 Avenue, Hollywood, Florida. On January 28, 1984, the sellers, Joseph and Betty Ann Donnelly, executed a deposit receipt and contract for sale and purchase of the subject residence at 3300 SW 40 Avenue, Hollywood, Florida to Harlen E. Davison, as purchaser. (Petitioner's Exhibit 2) Mr. Davison was a close friend of the Donnellys and was aware that the solar heater was leased and could not be sold. (Testimony of Anthony Nicola, Petitioner's investigator; Joseph and Betty Ann Donnelly) Specifically, Mr. Davison was aware that the solar heater was under a three-year term lease which was paid and that there was one year remaining on the lease term. (Testimony of J. Donnelly, Tr. page 25, lines 8 through 12) This was related to purchaser Davison prior to the time that he closed the transaction to purchase the subject residence. Finally, an examination of the profile sheet and market analysis for the subject property reveals that the solar heater was not listed as one of the features for the subject property. (Respondent's Exhibit 1N11)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the administrative complaint filed herein be dismissed. RECOMMENDED this 20th day of June, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1985. COPIES FURNISHED: Sue Hartmann, Esquire Division of Real Estate 400 W. Robinson St. Orlando, Fla. 32802 John Bernazzoli, Esquire 4747 Hollywood Blvd. Hollywood, Fla. 33024 Harold Huff Executive Director Division of Real Estate 400 W. Robinson Street Orlando, Fla. 32802 Salvatore Carpino General Counsel Department of Professional Regulation 130 N. Monroe St. Tallahassee, Fla. 32301
