The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on November 12, 2013.
Findings Of Fact On or about November 12, 2007, Respondent hired Petitioner to work as a full-time installation technician. Respondent terminated Petitioner’s employment on or about December 19, 2012. Petitioner, who is of Puerto Rican descent, alleges, in his Charge of Discrimination filed on November 12, 2013, the following: My termination from Bright House Networks is clearly a pretext. As a benefit of being an employee I received complimentary cable. In June 2012, I relocated and connected the complimentary cable to my new residence. I was never informed upon hire that I could not connect my complimentary cable if I relocated. In November 2012 I advised a manager that my route was too far from my residence and he told me to update my address with the company. Shortly after I did so I was terminated. I feel I was treated adversely as similarly situated employees have relocated and connected their own cable. Based on the foregoing actions of Bright House Networks described herein, I believe that I have been discriminated against including my unlawful termination, based on my national origin in violation of the Florida Civil Rights Act of 1992, [and] Title VII of the Civil Rights Act. Due to my unlawful termination, I have suffered and continue to suffer severe financial and emotional damages. Respondent’s policies and procedures provide in part that “[a]ll full and part-time Bright House Networks employees are entitled to free cable television service as long as their home is located within an area served by Bright House Networks.” The policies and procedures also provide that “[f]ree cable service is not transferable to another person’s residence.” Respondent’s procedures also provide that “[c]omplimentary service is provided for viewing, monitoring, and product knowledge by the employee at his/her own personal residence [and] [t]his benefit is not in any way transferable to another party or residence.” According to Christopher Kranert and Brinkley Ruffin, the intent of the policies and procedures governing free cable television is to allow employees to receive free cable television service at a single residential address. This is a reasonable interpretation by Respondent of its policies and procedures. When initially hired by Respondent, Petitioner resided at 1203 Arrowsmith Avenue, Orlando, Florida (Arrowsmith), and this is the address of record for Petitioner that Respondent maintained in its database of employee addresses. In June 2012 Petitioner moved out of the Arrowsmith property and relocated to 4413 Kirkman Road, Apartment F205 (Kirkman), which is also in Orlando, Florida. Petitioner did not initially inform Respondent that he had moved to the Kirkman address. Both the Arrowsmith and Kirkman addresses are in areas where Respondent provides cable television service. 7 During Petitioner’s term of employment, Respondent assigned Petitioner a truck that was equipped with a GPS device which allowed Respondent to approximate the whereabouts of the vehicle at all times. As an efficiency measure, Respondent, at the beginning of each workday, assigns service calls to its individual technicians based on a customer’s proximity to the technician’s home address of record. In furtherance of this efficiency measure, Petitioner, at the end of each workday, was authorized to drive his assigned vehicle to his home so that the following workday he could leave directly from home and report to his assigned service call(s). Petitioner noticed, at some point after June 2012, that the locations for his daily work assignments were a significant distance from his Kirkman address. This meant that not only did Petitioner have to wake-up earlier, and drive further, each morning in order to timely arrive for his service calls, but it also meant that he drove further when returning home at the end of each workday. Petitioner complained to Respondent about the distance that he was travelling to and from his daily service calls. In investigating Petitioner’s complaint, Respondent pulled the GPS data log for the truck assigned to Petitioner. The GPS data revealed that at the beginning and end of each workday, the truck was parked at a location other than Petitioner’s home address of record (Arrowsmith) and that this apparent anomaly had been happening for a significant period of time. Armed with this information, Respondent sent two of its employees to the Arrowsmith address for the purpose of finding out if cable service remained active. The employees confirmed that cable service for the Arrowsmith address was active and that the service was listed in Petitioner’s name. Next, Respondent identified the location where Petitioner’s assigned truck was parked at the end of each workday (Kirkman). Respondent sent employees to the Kirkman address and determined that the address was receiving cable television service and that the address was not listed as an active account in Respondent’s billing system. Respondent reasonably concluded that Petitioner was receiving unauthorized cable service at the Kirkman address while simultaneously receiving authorized cable service at the Arrowsmith address. Petitioner believes that his actions complied with company policy because, according to Petitioner, the policy authorizes him to activate service when moving to a new address without having to notify Respondent. While Respondent’s policies do not prohibit Petitioner from personally connecting cable service at his residence, the policies do prohibit Petitioner from doing so without first notifying Respondent. After consulting with Petitioner’s immediate supervisor Victor Gomez and Brinkley Ruffin, Chris Kranert terminated Petitioner’s employment with Respondent. Petitioner alleges that Respondent treated him differently from another employee that engaged in the exact same conduct that resulted in Petitioner’s termination from employment. Petitioner’s only evidence in support of this allegation is a conversation that he overheard between his former supervisor Allen Summers and Bright House employee M.S., who is African-American. According to Petitioner, Allen Summers asked M.S. if he was simultaneously receiving free cable service at more than one address. M.S. answered the question in the affirmative and explained to Allen Summers that he (M.S.) forgot to fill out the paperwork that would have informed Bright House about the transfer of cable service to M.S.’s new address. According to Petitioner, Respondent did not discipline M.S. for his violation of company policy. Petitioner relies on the conversation between M.S. and Allen Summers to prove that the facts asserted in the conversation are true. The referenced statements attributed to M.S. and Allen Summers are hearsay. Respondent denies having knowledge of any instance where M.S. was allowed to receive free cable service at multiple addresses. Respondent did, however, offer evidence where two former employees were terminated as a result of theft of cable television services.2/ Petitioner offered no evidence that his national origin played a role in Respondent’s decision to terminate his employment.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Bright House Networks, did not commit an unlawful employment practice as alleged by Petitioner, Manny Rolon, and denying Petitioner's Charge of Discrimination. DONE AND ENTERED this 22nd day of September, 2014, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2014.
The Issue Whether TestCorp's bid was contingent on DHSMV's entering into a maintenance and service contract with TestCorp? Whether TestCorp's offer of a 12-month cost-free warranty was contingent on DHSMV's entering into a maintenance and service contract with TestCorp? Whether TestCorp failed to offer a 12-month warranty at no charge? Whether DHSMV impermissibly proposes to consider the cost of maintenance in awarding the bid? Whether TestCorp's failure to register to do business in Florida until June 20, 1986 precludes an award to TestCorp? Whether TestCorp's failure to offer all right, title and interest in and to its system renders its bid unresponsive? Whether TestCorp failed to provide sufficient technical information to show that its system would meet specifications? Whether TestCorp failed to furnish the names of three customers with like or similar equipment? Whether TestCorp failed clearly and concisely to describe variances between its bid and the specifications set out in the ITB? Whether Juno's proposal has bilingual capability consistent with clearly visible images even on handicap display units?
Findings Of Fact ITB No. 2887-85 (Rebid) is in evidence as Joint Exhibit No. 1. The parties stipulated that pages 26 through 34 of Joint Exhibit No. 3, which replace two of the original ITB pages and consist otherwise of bidders' questions about the ITB and DHSMV's answers, also constitute part of the invitation to bid, whose purpose "is to secure Automated Driver Testing Equipment for the Florida Division of Driver Licenses." Joint Exhibit No. 1, p. 2. ITB No. 2887-85 (Rebid) calls for ten testing machines to be tied to an examiner's console in each of five systems, and specifies that the testing systems have both "English and foreign language capability," Joint Exhibit No. 1, p. 13, 3.3.02, that they "function in such a manner that controls and operations for both examiner and examinee are minimal," Joint Exhibit No. 1, p. 14, 3.4, and that they be "capable of presenting a visual question test" to all examinees, including handicapped (seated) examinees. With each system, ITB No. 2887-85 (Rebid) as modified in response to questions from TTSS, Inc., calls for 80 questions, consisting of "30 operator questions, 30 chauffeur questions, and 20 road signs." Joint Exhibit No. 3, p. DHSMV would administer 40-question tests to applicants for operator's licenses and to applicants for chauffeur's licenses, each consisting of "20 written questions and 20 road signs." Joint Exhibit No. 3, p. 34. The specifications also call for "the highest quality professional duplicating film" and specify that "[n]o visible deterioration . . . be noticeable in the quality of the projected image during the warranty period." Joint Exhibit No. 1, p. 23, 4.6.2(c). ITB No. 2887-85 (Rebid) calls for "[c]omplete product information, including technical and descriptive literature sufficiently detailed to substantiate [that] the system offered meet[s] or exceed[s] the specifications." Joint Exhibit No 1, p. 3. ITB No. 2887-85 (Rebid) requires that each bidder use the "bid forms furnished by this Department," Joint Exhibit No. 1, p. 5, 2.21A, see Joint Exhibit No. 1, p. 1, which both TestCorp and Juno did. While warning that "[b]ids containing terms and conditions conflicting with those contained in this Invitation to Bid shall be rejected," Joint Exhibit No. 1, p. 6, 2.24, the ITB also reserves to DHSMV the right to waive "minor deviations or exceptions . . . defined as those that have no adverse effect upon the State's interest and would not affect the amount of the bid by giving a bidder an advantage or benefit not enjoyed by other bidders." Joint Exhibit No. 1, p. 5, 2.18. In a related provision, the ITB requires that any nonconformity "be clearly and concisely described with a request for variance . . . accompanied by a full explanation as to the advantages and/or disadvantages." Joint Exhibit No. 1, p. 5, 2.19. Bids Submitted DHSMV received four bids in response to ITB No. 2887-85 (Rebid). Low at $94,470.00 was Computer Specialties, Inc., but DHSMV deemed this bid unresponsive and Computer Specialties, Inc., filed no notice of protest. Second low was Juno's alternate bid of $237,795.00, which tracked the bid DHSMV now proposes to accept, except that the alternate bid did not provide for a performance bond. DHSMV rejected Juno's alternate bid as unresponsive, and Juno has not questioned this determination. Third low was TestCorp's bid at $242,000, and Juno's bid was high at $246,795.00. Juno's Bid The parties stipulated that the lack of bilingual capability would be material, but did not agree that Juno's system was deficient in that respect (T.73). Juno's bid states that each display unit "shall utilize an unnotified Kodak Ektagraphic Slide Projector Model E-2 . . . [and] shall be capable of displaying up to eighty (80) separate question slides." Joint Exhibit No. 3, p. The sample slide representations Juno furnished with its bid depicted traffic scenes and accompanying questions in English only. Joint Exhibit No. 3, pp. 111, 111a. Foreign language capability would require either separate slides with foreign language questions or the same slides with questions in English as well as in foreign language(s). In the event of separate slides, one machine of the ten called for (in each of the five systems specified) could be dedicated to each foreign language in which the tests were to be administered, or foreign language slide trays could be substituted as needed. TestCorp's Bid Set out as a general condition in ITB No. 2887-85 (Rebid) was the following: SERVICE AND WARRANTY: Unless otherwise specified, the bidder shall define any warranty service and replacements that will be provided during and subsequent to this contract. Bidders must explain on an attached sheet to what extent warranty and service facilities are provided. Joint Exhibit No. 1. In the event of a conflict between a general condition and a specification, the ITB states that the specification is to take precedence. Among the specifications included in ITB No. 2887-85 (Rebid) were these: 2.1 Bidder must submit copy of maintenance and service contract and costs with bid. (Informa- tion on maintenance during warranty and after warranty expires). Joint Exhibit No. 1, p. 4 2.27.2 If maintenance of the equipment is to be the responsibility of the State, training necessary to properly maintain the equipment must also be provided. Joint Exhibit No. 3, p.27 2.30 Warranty - Service - Mai[n]tenance Parts Replacement: Parts determined to be defective must be repaired or replaced at no charge to this Department for a period of twelve (12) months. Labor must be furnished (normal working hours) at no charge to this Department for a period of twelve (12) months. EXCEPTION: It is understood that warranty does not include consumable parts/ supplies. Joint Exhibit No. 3, p.27. 2.31. If a defect in the equipment occurs because of obvious misuse or after expiration of the warranty, vendor or his authorized service representative will make repairs promptly for a period of five years from date of acceptance at a reasonable cost to the purchaser. Joint Exhibit No. 3, p. 28. Maintenance Bidder shall submit a maintenance plan with his bid response. Maintenance should be outlined in a schedule or table showing how and when it is to be performed. If the State must perform its own maintenance, this must be specified. Any replacement parts required to be installed under normal main- tenance procedures must be listed, along with cost, method of delivery, and how installation is to be performed. Bid Award - Special Conditions Cost of maintenance, if applicable, will not considered in award of bid . . . Joint Exhibit No. 3, p. 28. Finally, the specifications provided that the "complete system cost" included a year's spare parts and required each bidder to attach "a list of all equipment, service and spare parts included in his bid for each location." Joint Exhibit No. 1, p. 25. Maintenance and Warranty Tied 11. With reference to specification 2.27.2, TestCorp's bid states, "Maintenance will be the responsibility of TestCorp." Joint Exhibit No. 2, p. Otherwise TestCorp's bid responds to maintenance and service specifications by reference to and inclusion of a form "TestCorp Warranty and PerTest Maintenance Agreement." Joint Exhibit No. 2, pp. 34 through 38. On TestCorp's bid sheet is written, "PLEASE SEE REQUIRED MAINTENANCE AGREEMENT ATTACHED." Joint Exhibit No. 2, p. 25. With reference to specification 2.12, TestCorp's bid states, "Warranty and PerTest Maintenance contract is enclosed." Joint Exhibit No. 2, p. 31. Among the provisions of the form contract are the following: This agreement shall be in effect for 5 years from the date of purchase of the system. Service as described below will be provided at no charge during the "Warranty Period," which is the first year following installation. Joint Exhibit No. 2, p. 34. There is no charge for service under this agreement during the 12 month Warranty Period. During the 48-month pre-test maintenance period . . . you will be charged at the rate of $0.48 per test. Joint Exhibit No. 2, p. 35. Variance from the terms and conditions of this agreement in any order or other written notification from you will be of no effect. Joint Exhibit No. 2, p. 38. DHSMV originally determined TestCorp's bid to be responsive to ITB No. 2887-85 (Rebid) and proposed to award to TestCorp on June 23, 1986. Another Look During the pendency of Juno's ensuing protest, DHSMV staff changed their minds. In their prehearing stipulation, the parties set out the following sequence: On July 14, 1986, Merelyn Grubbs, Chief of the Bureau of General Services of the Department, placed a phone call to Ken Muir, Vice President of Sales and Marketing for TestCorp, in order to clarify questions that had arisen with regard to TestCorp's bid. As a result of the July 14 telephone conversation and reexamination of TestCrop's bid, the Department concluded that in order to get TestCorp's 12-month cost-free warranty, the Department would be required to sign the maintenance and service agreement with TestCorp. As a result of tube July 14 telephone conversation and reexamination of TestCrop's bid, the Department concluded that in order to get the TestCorp equipment at the bid price, the Department would be required to sign the maintenance and service agreement with TestCorp. On July 15, 1986, Ken Muir called Merelyn Grubbs to discuss TestCorp's position with regard to the maintenance and service contract. On July 15, 1986, Merelyn Grubbs sent a letter informing TestCorp that its bid had been rejected as nonresponsive because the "bid for equipment was predicated upon the Department agreeing to enter into the four- year maintenance contract." On July 15, 1986, C. W. Keith, Director of the Division of Driver Licenses, sent a memorandum to Fred O. Dickinson, III, Deputy Executive Director of the Department, which said, in relevant part: In view of the recent discovery of the main- tenance contract on TestCorp's bid which would in effect cost our Department approximately $300,000 for a four year period, which we obviously cannot afford and was not listed in the bid, we recommend that TestCorp be notified that they are nonresponsive to the bid and that they be disqualified. Ms. Grubbs verified on July 14 with TestCorp [sic] that their bid was invalid unless we also accepted their maintenance contract at a price of 49 cents per examination administered. ([sic] and 49 in original) In short, DHSMV reconsidered, decided that TestCorp's bid was unresponsive, and proposed to award to Juno, on that account. This is DHSMV's current position. The form contract TestCorp attached to its bid, entitled "TestCorp Warranty and Per-Test Maintenance Agreement," covers five years. After the initial year in which there were to be no maintenance charges, the contract specifies maintenance charges "at a rate of $0.48 per test . . . based on the estimated number of tests given in Addenda #1 to this bid, ITB-DHSMV-2887-85 (Rebid)." Joint Exhibit No. 2, p. 35. The estimated number of tests to which the form contract refers amounted to 950 daily in January of 1986. Joint Exhibit No. 3, p. 33. For years two through five, TestCorp's annual revenues from DHSMV under the maintenance contract can be calculated at $114,000, by multiplying 950 times $0.48 times 250 working days (approximate). If January is an unusually busy month or if the testing centers are not open fully 250 days a year, the figure would be less. Registration At the time TestCorp submitted its bid in response to ITB No. 2887-85 (Rebid), on May 16, 1986, it had not registered with Florida's Department of State as a foreign corporation doing business in Florida. Among the special conditions set out in ITB No. 2887-85 (Rebid) was the following. 2.1 All corporations seeking to do business with the State shall, at the time of submitting a bid in response hereto, be on file with the Department of State in accordance with the Provisions of Chapter 607, Florida Statutes; Chapter 607, Florida Statutes; TestCorp registered with the Department of State in accordance with the provisions of Chapter 607, Florida Statutes (1985) on June 20, 1986, three days before the original tabulation on the rebid was posted. When TestCorp originally applied for registration is not clear from the record. Purchase Contemplated The ITB No 2887-85 (Rebid) announces DHSMV's intention to purchase five complete systems, and defined purchase as "acquisition of all rights, titles and interest in the systems in exchange for payment . . . ." Joint Exhibit No. 1, p. 2, 1.3. With reference to the bidder's use of any patented or copyrighted "design, device or materials" the specifications provide that "bid prices shall include all royalties . . . . " Joint Exhibit No. 1, p. 12. TestCorp conditioned its bid by stating The Department will acquire all rights, titles and interest in the systems purchased save and except the department shall not sell, lease, transfer, duplicate or copy the TestCorp hardware configuration, software, or video disc for any purpose whatsoever. In using this language, the drafter of TestCorp's bid referred by section number, 1.3, to that part of the ITB calling far sale outright. Product Information TestCorp's bid represents that all components of the systems it offers "are of standard manufacture." Joint Exhibit No. 2, p. 31. It proposes touch screens in lieu of keyboards. Included in its bid are technical specifications for the touch screens, as well as for the Hitachi video disc player, the multi- user host adapter and the monitor components. Technical specifications for the cable, the Roland printer, the TestCorp housing and the IBM-compatible microcomputer components are not included in the bid, which describes the software and video disc components only as "proprietary." A narrative description of how the system works is also included with TestCorp's bid, however, and the bid recites that the software for the examiner's station "controls all Testing/Information stations and saves all the answers given during each test." Joint Exhibit No. 2, p 29. TestCorp's substitution of touch screens for keyboards, while not framed as a request for variance, was clearly and concisely described. An explanation of the perceived advantages of touch screens accompanied the description. Right and Wrong ITB No. 2887-85 (Rebid) calls for "correct answer feedback," Joint Exhibit No. 1, p. 13, 3.3.05, which the specifications describe in some detail, after first making clear that "wording and procedures . . . serve only as a guideline [and that d]ifferent procedures, wording or indications will be acceptable." Joint Exhibit No. 1, p. 16. "WHEN SURE PUSH SCORE" should be an indicator and shall come on after an answer choice has been made to advise the applicant to depress the "SCORE" selection device. "RIGHT" [or] "WRONG" will appear after the "SCORE" selection device has been depressed and will indicate the correctness of the applicant's answer choice. Joint Exhibit No. 1, pp. 16 and 17, 3.9.5 3. 9.5 3.9.7 The final answer selection device, when activated by the applicant, shall cause the selected answer to be recorded and the correct or incorrect indicator to be activated. It shall not be possible to activate the final answer selection device until an answer selection has been made. Joint Exhibit No. 1. p. TestCorp's bid, which states, "The test can be presented as specified in this proposal," Joint Exhibit No. 2, p. 29, indicates that the "TestCorp method uses an answer until correct procedure for administering tests." Joint Exhibit No. 2, p. 30. "The computer does the scoring . . . . Examinees know the correct answer to each question at the end of the test." Joint Exhibit No. 2, p. 30. TestCorp's bid also includes the following description: When the test begins, the software chooses a question at random and presents it to the examinee. The examinee touches a key to register the answer of his choice. If it is wrong, the computer tells him to try again until he gets the right answer . . . Joint Exhibit No. 2, p. 71. Apparently TestCorp's system would cause a "Try Again" panel rather than a "Wrong" panel to light up, but this difference is not material, as Section 3.9.5 explicitly states. Cabinetry ITB No. 2887-85 (Rebid) requires that the cabinet for the "handicapped display unit . . . be so constructed as to permit an applicant for a driver's license test to remain seated while taking the test," Joint Exhibit No. 1, p. 15, 3.8.1; and requires that the examiner's console cabinet "be a small desk top unit with a sloping panel for ease of operation and readout viewing." Joint Exhibit No. 1, p. 19, 8.14. TestCorp's bid does not explicitly address the cabinetry either for the handicapped display unit or for the examiner's station. TestCorp's bid does say, "Any testing station can be used as an alternate Examiner's Station." Joint Exhibit No. 2, p. 27. TestCorp's bid also states, however that the "Examiner's Station consist[s] of the same components [as make up an examinee's station, viz., housing, cables, a microcomputer, a monitor, a touchscreen and a video disc player] with the exception of the video player, which is replaced by a printer," Joint Exhibit No. 2, p. 29, and that the "Examiner's Console also includes the local area network hardware that controls the Testing/Information Stations." Joint Exhibit No. 2, p. 29. The latter statements raise some question about the asserted interchangeability. In context, the claims that the different types of stations are similar or interchangeable must relate to their technical construction, and not to the cabinets in which the working components would be housed. References ITB No. 2887-85 (Rebid) calls for a "list of three (3) customers having equipment like or similar to that being bid." Joint Exhibit No. 1, p 4, 2.17. TestCorp supplied the names of four customers, for only two of whom, however, TestCorp had installed automated driver testing systems. TestCorp furnished the other two customers hardware identical to that called for by ITB No. 2887-85 (Rebid), albeit "not all tied together to a command console or master console as" (T.63) called for by ITB No. 2887-85 (Rebid). As for the software TestCorp furnished these other two customers, "[t]here are some differences in terms of commands, but the program, software program, is not a dissimilar program" (T. 64) even though these customers use the systems for purposes other than testing drivers, purposes requiring the input of different data.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a seller of business opportunities registered with the Petitioner, holding registration number 2000-054, and located at 3101 Twenty-Second Avenue South, St. Petersburg, Florida 33712. The Respondent was the successor in interest to American Cash Machine, Inc., and is responsible for fulfilling the obligations of the previous company. At all times material to this case, Gilbert B. Swarts was the president and chairman of the board of the Respondent. On July 8, 2005, the Respondent entered into a contract with Bonnie Campbell as trustee of the Campbell Family Trust (purchaser) under which the purchaser agreed to purchase 36 "CardPayment" machines from the Respondent, and the Respondent agreed to place the machines in appropriate business locations on behalf of the purchaser. As required by the contract, the purchaser paid a total of $135,000 by check to the Respondent. At the time of the sale, the Respondent provided a disclosure form to the purchaser which stated that 200 "CardPayment Business Opportunities" had been sold by the Respondent to other purchasers by the end of 2005 and that 25 "Internet Kiosk Business Opportunity [sic]" had been sold by the Respondent to other purchasers by the end of 2002. The disclosure form also stated that the Respondent would provide to the purchaser, the names, addresses, and telephone numbers of the ten purchasers located closest to the purchaser; however, the disclosure form did not include the information, and the Respondent did not otherwise provide the information to the purchaser. The Respondent stocked the 36 CardPayment machines, but failed to acquire business locations for all of the machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 36 CardPayment machines identified in the contract to 18 Internet Kiosk machines. The Respondent was subsequently unable to acquire business locations for all of the Internet Kiosk machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 18 Internet Kiosk machines to 18 "Smart Terminal" machines. The CardPayment machines, Internet Kiosk machines, and Smart Terminal machines are different types of machines, and each type has a usage different from the others. The terms of the contract executed between the parties did not provide for the substitution of various machines upon failure by the Respondent to place the machines into operation. The contract required the Respondent to rebate a portion of the sales price for each month during which each CardPayment machine was not placed for operation. No contract for the purchase of either the Internet Kiosk or the Smart Terminal machines was executed by the parties. The disclosure information provided by the Respondent to the purchaser related to the Internet Kiosk machines was insufficient to comply with the statutory requirements addressed herein. No disclosure information related to the Smart Terminal machines was provided by the Respondent to the purchaser.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding that the Respondent has violated Subsections 559.803(11)(a) and (b) and 559.809(11), Florida Statutes (2005); imposing an administrative fine of $10,000; and placing the Respondent on probation for a period of three years subject to such conditions as the Department deems appropriate. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2008. COPIES FURNISHED: Eric H. Miller, Esquire Department of Agriculture and Consumer Services 2005 Apalachee Parkway Tallahassee, Florida 32301 Gilbert B. Swarts American Cash Machine, LLC 535 Twenty-Second Street South St. Petersburg, Florida 33712 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact In early 1984, the Florida Department of Law Enforcement in its Fingerprint Identification Section decided to replace some equipment used for purposes of analyzing finger prints. That equipment was three Kodak PR-1's, known as readers. The reason for the replacement concerned the fact that these machines had been in operation since 1969 and Kodak was no longer willing to undertake the service of the machines through a service agreement. Initially, the staff favored the idea of replacing the Kodak equipment with other Kodak equipment, having in mind the idea that Kodak was the only manufacturer that could meet the needs of this function within the Florida Department of Law Enforcement. If this suggestion had been accepted, then it would have been on the basis of a request to the Department of General Services to be given permission to enter into a contract with a sole source, namely Eastman Kodak. Indeed, preliminary steps were taken to purchase the Kodak IMT-50 reader-printer to substitute for the three PR-1's, as a noncompetitive purchase from the single source, Kodak. There had also been some discussion about the purchase of Kodak IMT-100's, a reader-printer which allowed multilevel blipping. That type of feature, i.e., multilevel blipping, was determined not to be necessary. Ultimately, the Florida Department of Law Enforcement determined to meet their needs for replacement of the PR-1 machines through a' competitive bidding, Bid No. 83-50. A copy of the invitation to bid may be found as Petitioner's Exhibit 14. This particular item is a response on the part of Lanier Business Products to the invitation to bid. Among the instructions in the invitation to bid was general condition Number 7 which reminded the prospective vendors to direct questions concerning the conditions and specifications set forth in the bid invitation to the Florida Department of Law Enforcement no later than ten days prior to the bid opening. Bid opening was scheduled for May 31, 1984. None of the vendors who offered bid responses questioned the meaning of any of the general conditions or specifications set forth in the invitation to bid related to the purchase of microfilm reader-printers as contemplated in the bid invitation. Eastman Kodak Company also submitted a bid. The bid response by Lanier Business Products was for the provision of a reader-printer known as the 900 Page Search manufactured by 3M. The Kodak product which was bid was the IMT-50 reader-printer. Another prospective bidder, Office Systems Consultants, submitted a "no bid," signifying the inability to meet the specifications of the invitation to bid. On May 31, 1984, the bid opening was held and a tabulation was made as to the bid responses offered by Lanier and Kodak. The unit price for each of the three microfilm reader-printers was $8,650 by Lanier and $9,040 by Kodak. Therefore, Lanier was the apparent low bidder on the project. Within the bid specifications are requirements which set forth specific needs for this project. One of those items pertains to film retrieval capability, and that provision states: Unit will retrieve, by automated means, 100 feet 16mm rolls of 5.4 mil film or 215 feet 16mm rolls of 2.5 mil film (such as Recordak AHU microfilm). Retrieval unit must be able to read, randomly, and ANSI standard document reference (Blip), and must have an advance-- return transport speed of 12 feet per second minimum. Related to lens requirements, the bid specifications indicated: Lens magnification must be 24:1 to be compat- operation. ible with present standards and be designed so that additional lens can be interchanged without interrupting the reader-printer Under the heading of general requirements the invitation to bid stated: By nature of the work requirements and pro- duction schedule, the equipment may be gener- ally described as a 16mm reader-printer capable of retrieving microfilm images by means of ANSI Standard Blips, and will be compatible with existing system. Prior to bid consideration, potential bidders will review, on site, typical production required as part of the overall routine of the finger- print section. Appointment for this inspec- tion will be made by calling (904) 488-9953. The Department will not alter the current production system. After bid opening and prior to award, vendors will conduct tests and provide demonstrations to personnel of the Department to assure a quality product compatible with the existing system. Where applicable, the film retrieval unit will conform to Florida Administrative Code, Chapter 1A-26. At the time the decision was made to replace the three PR-1 microfilm readers, the Identification Section within the Florida Department of Law Enforcement had four other machines which had reading capability. Those machines were also Kodak and are referred to as Starvue. As can be seen, neither the PR-1 nor the Starvue referred to had the capability to print. A review of Petitioner's Exhibit 3 reveals that the ability to print identification cards was accomplished through another Starvue type machine in operation prior to the bid invitation. When processing fingerprint cards within the Identification Section of the Respondent agency, the task of fingerprint identification and verification is addressed. Over and above this reading function, prints are sometimes made of fingerprint identification cards or documents related to a given subject. These prints either are made from the positive film being reviewed, the copy appearing as a negative image of that film, or in the alternative, the positive film is replaced with negative film and a positive print is made through the copying process. Copies were reproduced on the separate printer which the agency had available to it, prior to bidding for the purchase of three reader-printers contemplated by the invitation to bid under discussion. This required removing the film from the reader or substituting the film before printing. In addition, some lens changes within the readers would be necessary, on average a couple of times a day. The PR-1 machine had a telescoping lens which would allow magnification without lens replacement. The Starvue reader requires the replacement of the lens to gain greater magnification. This Kodak machine, following the lens substitution, would not lose contact with the image which had been on the screen prior to the substitution. The fingerprint analysis operators or technicians, at the time that the bid was prepared, used a 30:1 lens in performing their function of reading the fingerprint microfilm image. A 24:1 lens was needed for printing. Under these circumstances the Respondent indicates that in the bid specifications reference should have been made to a 30:1 lens as opposed to a 24:1 lens in describing lens requirements. The PR-1 machines that were being replaced did not have the capability to read blips on the given frames or images within the microfilm cartridges, thus automatic access of the roughly ten per cent of microfilm cartridges that contained the blips was not possible. Both the 3M 900 Series and the IMT-50 microfilm reader-printers allow for automatic retrieval of the image within the microfilm cartridge, as stated before, a required feature set forth in the invitation to bid. The operation of the Fingerprint Identification Section at the time of the bid invitation dealt with approximately forty-eight hundred reels of microfilm, 90 per cent of which could only be accessed manually. Most of the microfilm cartridges contained one hundred feet of microfilm. When reference is made in the bid document to the fact that the proposed equipment should allow for the changing of lenses without interrupting the operation of the reader-printer, this is a literal impossibility. While the first lens is being removed and the second lens is being placed, no reading or printing may occur. As a consequence, when officials with Lanier read this requirement, they perceived it as being some form of inconsequential mistake and did not seek clarification as contemplated by clause Number 7 of the general conditions to the invitation to bid. While it is not apparent from the reading of this requirement, the Florida Department of Law Enforcement intended this provision pertaining to lenses to mean that once the second lens had been placed in the machine, the image that had been being examined prior to the lens replacement would be immediately available for reading or printing. The IMT-50 Kodak equipment allows for that, the Starvue equipment by Kodak allows for that, and the PR-1 did not require lens replacement. By contrast, either in the manual mode or in the automated mode, the 3M 900 Series equipment might require a slight adjustment to recapture the image once the lens had been changed. This adjustment would take approximately two seconds to achieve. The reason for the differences between the 3M equipment and Kodak equipment concerns the fact that the power source in the 3M equipment is turned off when the lens is out of the machinery and the power source within the Kodak equipment remains constant even when the lens is removed. When the lens requirement is considered in the context of the idea expressed in the general requirements, that the Department did not intend by the replacement of its equipment to alter its current production system, use of the 3M equipment at times of lens interchange is not found to be out of compliance with that general requirement or condition. That determination is made realizing that the lens requirement was ambiguous, at best, and the more important fact that the amount of delay caused in using the 3M equipment in a lens change posture amounts to three operators x two occasions per day x two seconds per occasion or 12 seconds per day. This delay is inconsequential. On this topic, in its position in justifying its choice to reject Lanier's equipment as not complying with the lens requirement, suggestion has been made by the Florida Department of Law Enforcement that eight to ten lens changes per hour might be necessary in the "hard" identification of prints. This comment as offered as a justification for rejecting the Lanier bid as nonresponsive to the lens requirement is not borne out in the record of the hearing by competent proof. This information was imparted in Petitioner's Exhibit 45 which is information that the Florida Department of Law Enforcement submitted to the Department of General Services, having determined that the Lanier bid was not responsive because of a failure to comply with the lens requirement and the requirement for film retrieval capability, which will be discussed subsequently. That information in the exhibit was hearsay and was contradicted by the comments by two of the operators who utilized the reader-printers in the Fingerprint Identification Section. They are the source of the idea that lens changes occur once or twice a day, and their position has been accepted as factually correct. In summary, Lanier is found to have complied with the specific requirements for lens compatibility with existing needs of the Fingerprint Identification Section and future needs of that section. An official within the Florida Department of Law Enforcement had been informed by Kodak that the Starvue equipment in use by the Fingerprint Identification Section at the time that the bid invitation was prepared had a capability of performing the retrieval function at a pace of twelve feet per second. This pertained to both the forward and the return phase of that operation. Having this in mind, the previously described requirement for film retrieval capability was included within the bid specifications. Again, it was the intention of the Department, as expressed in that provision and the general requirements, that the replacement equipment maintain the same efficiency of production as existed. The manufacturers of the equipment which was offered in response to the bid have described their equipment in this fashion: The Kodak IMT-50 is described as having a speed advance of up to fourteen feet per second. The 3M 900 Series which was offered by Lanier carried a "rating" of twelve feet per second. The author of the bid specifications pertaining to film retrieval speed included within that section the phrase ". . . advance--return transport speed " This phrase is not used in the microfilm industry to describe film retrieval capability. Officials at Lanier perceived this as a manufacturer's speed "rating." Officials with Kodak who offered testimony at the hearing had various ideas about what advance and return transport speed meant, which opinions were not constant. Likewise, the author of this provision within the bid specifications offered variety in his explanation of the meaning of that phrase, that variety ranging from the idea of maximum speed when the machine was operating at full capacity in terms of the advancement or return of the microfilm within the machine, to the idea of maximum speed as ascertained shortly after the machine had started to advance or return the microfilm. In any event, he states that it did not mean transport speed as an average of time for a given length of film to move through the machine. Nothing about the specifications suggests that return transport speed equates to the idea of average speed, meaning the amount of time necessary to transport a given length of film through the machine either in the forward or reverse mode. When this requirement of transport speed is seen as a function of protecting against the acquisition of equipment that would not be as efficient as existing equipment, a further dilemma is presented. Edward E. Ricord, author of the specification related to film retrieval speed testified that testing had been done, unrelated to the present hearing, with the intention of describing the transport capabilities of preexisting equipment within the Florida Department of Law Enforcement. The recount of that testing was not offered as evidence by way of documentation. Nonetheless, the equipment that was existing is depicted as having the capability of transporting a ninety-six foot length of microfilm through the older machine, Starvue, in a shorter length of time than could be achieved by the 3M 900 Series. The Starvue was four seconds faster in the forward mode and ten seconds faster in the reverse or rewind phase than the 3M 900 Series, according to Ricord. The old machine was also described as being slower at one end and a little bit faster at the other end in transporting the ninety-six foot length of microfilm when contrasted with the IMT-50 Kodak. (The transport of ninety-six feet of film becomes significant in a later paragraph describing the basis for rejecting the Lanier bid offering as being unresponsive.) On the other hand, Carl Durian, one of the operators or technicians who has used the PR-1, the Starvue, the 3M 900 Series and the IMT-50 machines had these observations, in terms of a subjective analysis of speed. He felt that the Kodak IMT-50 was a subjectively faster operating machine when performing the retrieval function related to the movement of the microfilm through the machine when compared to the 3M 900 Series; however, the 3M 900 Series was found to be subjectively faster than either the Starvue or the PR-1. Finally, Durian felt that the Starvue was faster than the PR-1 when considering the retrieval capabilities of the various machines. Again, this firsthand information, though subjective, is of a better quality than the information offered by Ricord who recounted test results not produced at hearing. Looking at this problem in the most favorable light, there is conflict within the agency as to the issue of whether the 3M 900 Series equipment is as capable in the retrieval of microfilm, as a function of speed, as existing equipment within the Fingerprint Identification Section at the time that the bid invitation went out. This is significant, because, having no industry standards related to return transport speed and having no clear indication of what that term meant at the point of the preparation of the bid specification which is separate and apart from the capabilities of existing machines, it is taken to mean the capabilities of those existing machines, and the uncertainty about those capabilities must be resolved in favor of Lanier. Moreover, on this occasion the Florida Department of Law Enforcement cannot point to Lanier's obligation to ask the question about the meaning of return transport speed as a reason to reject the bid response, in that such a theoretical inquiry would not have elicited a satisfactory answer to the question and alerted Lanier that it was potentially incapable of satisfying the bid specifications related to microfilm retrieval. In accordance with the bid document, the vendors Lanier and Kodak were required to present one of their machines to the Department following the bid opening for purposes of evaluation. Once the machines were in place, some concerns were expressed about the difference in operating capabilities in the retrieval function of the two machines. To gain some understanding of those differences, a test was devised to measure the responsiveness of the two machines. The test, by its terms, measured the average time necessary to move ninety-six feet of microfilm through the machines in a forward and reverse mode. The tests were conducted, forward and reverse on each machine, by using a person holding a wrist watch and gaining an average of the time necessary to accomplish the functions, after an operator switched the machine into the fast forward and reverse positions to commence the test. The tests forward and reverse were executed three times. It was revealed that in the forward mode, the best performance by the 3M 900 Series was a speed of 5.99 feet per second and in the reserve mode 8.30 feet per second. By contrast, the speed of the Kodak IMT-50 was, at best, 12.80 feet per second in the forward mode and 16.16 feet per second in the reverse mode. No comparison was made at the time of that testing between the two proposed machines and the existing Starvue or PR-1 equipment. For that reason it is not graphically depicted whether the 3M 900 Series machine would slow down the operation of the Fingerprint Identification Section because of its inability to comply with the requirement for film retrieval. A description of the testing that was done between the 3M 900 Series and the IMT-50 cannot be found as a requirement within the bid specifications, nor does it comport with any expressed statement of what transport speed meant as described in the bid specification document. While it does point out a remarkable difference between the film retrieval capabilities of the Kodak IMT-50 and the 3M 900 Series, it does not establish that Lanier failed to comply with the bid specification related to film retrieval when offering the 3M 900 Series machine in response to the bid invitation. Lanier has met the requirement for film retrieval. In support of this finding, the scope of this inquiry as stipulated to between the parties does not allow for the discussion of the implications of the greater film retrieval capability of the Kodak IMT-50 when compared to the 3M 900 Series as it might pertain to work efficiency within the Fingerprint Identification Section. More significantly, even should it be demonstrated that this difference in film retrieval speed has a profound influence on work efficiency, it could not be said that the Lanier bid failed to meet specifications. The only consequence of this revelation might be that the agency would rebid the project, when examined in the abstract. Given what the agency considered to be a lack of responsiveness on the part of Lanier related to the lens requirement and film retrieval requirement, it was determined to seek permission from the State of Florida, Department of General Services to obtain the IMT-50 equipment from Kodak as a sole source. This is under the theory that in a competitive bid setting where only one responsive bidder has responded, a sole source purchase opportunity must be sought from the Department of General Services. Following some explanation, that authority was granted. When the authority was granted, the Department of General Services did not realize that Lanier had not been given a point of entry to question the rejection of its bid. When this circumstance was discovered, the Department of General Services recanted its stated permission pending the opportunity for Lanier to have due process concerning its claim of compliance with bid specifications. The decision by Department of General Services to change its position on permission for sole sourcing occurred on October 2, 1984. In the face of that statement and the advice by the Department of General Services that the Florida Department of Law Enforcement should give a point of entry to Lanier to contest the question of a determination that Lanier's bid was unresponsive, the Florida Department of Law Enforcement on December 17, 1984, officially noticed Lanier of the choice to award the contract to Eastman Kodak. Given this notification, a letter of protest was filed by counsel for Lanier on December 21, 1984. Kodak had been awarded the contract through the issuance of a purchase order from the Florida Department of Law Enforcement at a time when the Department of General Services had initially indicated the acceptability of a sole source arrangement, but before the October 2, 1984, decision by Department of General Services to rescind its permission to go sole source. As a part of the arrangement with Eastman Kodak, $262 per machine was allowed in the way of trade-in of the three PR-1 machines which were being replaced. The IMT-50 equipment is presently in place in the Fingerprint Identification Section of the Florida Department of Law Enforcement. Had Lanier placed the 3M 900 Series machines with the Florida Department of Law Enforcement, it would have made a profit of $5,700. This is offset by the cost of $4,080 which would have been necessary to convert the existing microfilm reels to fit the 3M equipment. With that deletion, the total profit from the sale becomes $1,620. The effective life of the 3M 900 Series of equipment is five years, and service revenues from those three reader-printers averages $2,940 per year x five years = $14,700 as total service revenues. The loss of revenues over the five-year span for the three reader-printers related to paper supplies is $24,300 based upon three reader-printers $4,860 per year. The figures given relate to gross charges for paper supplies. That paper has not been supplied, and no indication has been given on the difference between the vendor's cost for producing the paper and the retail price of the paper, giving a net figure as to profit. In view of the fact that the paper has not actually been delivered and in the absence of some indication as to the amount of net profit, this item of damages is not allowed. Finally, no indication was made as to the amount of labor cost and net profit related to the overall service charge, and, as with the paper supplies, this claim is disallowed. These items of damages are disallowed because the Petitioner would only be entitled to claim net profits, having never actually offered the services or supplies. An additional $810 is lost in interest income at a rate of ten per cent per year over the five-year effective life of the equipment, pertaining to use of the profits realized in selling the machines. The proven total damages to Lanier is $2,430. Claims by Lanier for loss of future earnings related to the sale of unrelated machines are not found to be convincing, in that they are too speculative in nature. The related claim for past damages if the 3M machines are installed is rejected in that the effective life of the machines starts from the time of their installation. Therefore, profits for sale, supplies and service would commence at that moment. Lanier is the lowest responsive bidder on Bid No. 83-50.
Findings Of Fact CENTRAL FLORIDA's complaint for Unfair Termination in the form of a letter dated July 9, 1986, was filed in triplicate with the Department of Highway Safety and Motor vehicles on July 10, 1986, and alleged as follows: CENTRAL FLORIDA MACK TRUCKS, INC. has two agreements with MACK TRUCK, INC. The first agreement is a Mack Distributor Agreement dated July 1, 1967. The second agreement is a Mack Mid-Liner distributor Agreement dated September 20, 1979. MACK TRUCKS' letter of April 10, 1986, indicates they are "terminating" my agreements. As alleged by Petitioner CENTRAL FLORIDA, Respondent has terminated two Distributor Agreements, the MACK Agreement dated July 1, 1967, and the Mid-Liner Agreement dated September 20, 1979. To the extent the letter/complaint addresses the Mack Distributor Agreement dated July 1, 1967, it should be dismissed upon authority of Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla. 1975). In Yamaha, the Florida Supreme Court was faced with the unfair termination statute here at issue, Section 320.641 Florida Statutes, and the issue of its applicability to dealer agreements entered into between manufacturers and dealers prior to the effective date of the statute, January 1, 1971. On the basis of Article I, Section 10, of the U.S. Constitution and Article I, Section 10, of the Florida Constitution, regarding impairment of contracts, the Supreme Court held We hold that Section 320.641, Florida Statutes, applies prospectively to motor vehicles franchise contracts signed after its effective date. Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d at 560. Yamaha is unambiguous. Therefore, as to the Mack Distributor Agreement, Section 320.641 does not apply. The Department of Highway Safety and Motor Vehicles, and through it the Division of Administrative Hearings and the undersigned hearing officer, have no jurisdiction to adjudicate the Complaint for Unfair Termination as it addresses the July 1, 1967 Mack Distributor Agreement. This determination was made in an Order entered in DOAH Case No. 86- 2622 on August 28, 1986. Since August 28, 1986, Petitioner has provided a more definite statement as to the Mack Mid-Liner Distributor Agreement which has been determined by the under signed Hearing Officer to be in compliance with her previous order. On October 3, 1986 Respondent moved for severance of the two distributor agreements, which severance was granted by an Corrected Order entered October 27, 1986. That order re-numbered the cause as pertains to the July 1, 1967 Mack Distributor Agreement as DOAH Case No. 86-4136 and retained DOAH Case No. 86-2622 for the cause as it pertains to the Mack Mid-Liner Distributor Agreement. Within its motion, Respondent represented that a recommended order (presumably leading to a final order) be entered at this time. Respondent has shown good cause for granting the relief prayed for. Without such relief, the Mack Distributor agreement hangs in limbo until such time as a recommended order is entered incorporating the August 28, 1986 ruling on the Mack Distributor Agreement and resolving all disputed issues of material fact concerning the Mack Mid-Liner Distributor Agreement is entered (presumably at least 30 days after conclusion of the final formal evidentiary hearing now scheduled to conclude January 6, 1987). Continuation of this situation pending the formal evidentiary hearing on the Mack Mid-Liner Distributor Agreement, typing of transcripts, submission of proposed findings of fact and conclusions of law, entry of a recommended order, filing of exceptions, and entry of the agency's final order prejudices Respondent Mack in that Mack is unable to appoint a new distributor in Central Florida.
Recommendation That the Secretary of the Department of Highway Safety and Motor Vehicles enter a final order dismissing this cause only as the July 1, 1967 Mack Distributor Agreement. DONE and ORDERED this 28th day of October, 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 28th day of October, 1986. COPIES FURNISHED: Donald E. Cabaniss, Esquire 11 East Pine Street Post Office Box 1873 Orlando, Florida 32302 Dean Bunch, Esquire 305 South Gadsden Street Post Office Drawer 1170 Tallahassee, Florida 32302 C. Jeffrey Arnold, Esquire 857 North Orange Avenue Post Office Box 2967 Orlando, Florida 32802
The Issue The issue is whether Respondent committed an act of discrimination in employment based on age, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner was born on December 11, 1951. She was employed by Respondent from 1977 until December 27, 1999, at which time Respondent terminated her. During the entire term of her employment, Petitioner has served as an outside sales representative. As an outside sales representative, Petitioner was typically assigned a territory within which she was to serve existing advertisers and develop new advertisers. Petitioner often helped customers prepare their advertisements and plan and budget their advertising campaigns. While employed with Respondent, Petitioner helped train Mr. Fine, who has been employed with Respondent for nearly 13 years. Mr. Fine is currently the National Advertising Director, but, during the time in question, served as the Broward Advertising Sales Manager, and, as such, he supervised Petitioner. He served as the Broward Advertising Sales Manager from September 1998 through February or March 2000. While Broward Advertising Sales Manager, Mr. Fine supervised eight sales representatives. Mr. Fine found that Petitioner was strong in persuasiveness, but weak at times when she displayed a negative attitude and sense of entitlement to her job and her way of doing her job. She also treated customers inconsistently. In February 1999, Mr. Fine disciplined Petitioner for her handling of an internal fax that the Broward office received from an employee of Respondent in another office. The fax was addressed to a member of management and contained salary information about five persons in the office. Petitioner happened to find the fax and revealed its contents to her coworkers before delivering it to the addressee. When Mr. Fine reprimanded Petitioner for her actions, she denied any wrongdoing. Next, Mr. Fine began receiving complaints from various of Petitioner's customers, mostly over a relatively short period of time. A marketing person at the Swap Shop complained that Petitioner was brusque in dealing with her. Another customer representative mentioned that Petitioner had criticized one of her coworkers in suggesting that the customer place all of its business with Petitioner. A similar situation arose with another customer, to whom Petitioner claimed that its outside sales representative handled only smaller accounts. A representative of the Florida Philharmonic Orchestra requested that Mr. Fine assign it a new outside sales representative because Petitioner raised her voice and talked down to its young, inexperienced marketing person. On June 29, 1999, Mr. Fine sent a memorandum to his supervisor, Donna Sasser, who was then Advertising Director. The memorandum describes Petitioner as "dynamite" and expresses concern as to when she "will blow and who she will hurt." At the time, Mr. Fine was concerned that Petitioner's actions might undermine morale among the other staff for whom he was responsible. Ms. Sasser advised Mr. Fine to communicate to Petitioner specific expectations in terms of job performance and customer interaction in particular. Mr. Fine met with Petitioner and detailed his problems with her job performance and his expectations for improvement. By memorandum dated July 30, 1999, Mr. Fine memorialized the meeting, including specific customer complaints, and warned that Petitioner's job "will end, even within the next few weeks, if you are unable to achieve the following: no additional customer complaints, monthly goals [met] on a consistent basis; positive, collaborative attitude with co-workers, customers, and managers; [and] acceptance of responsibility for what goes well and what does not go well." Petitioner resisted Mr. Fine's criticism. By memorandum dated August 22, 1999, she defended her actions by pointing to shortcomings elsewhere within Respondent. Significantly, the memorandum does not address the complaints about brusque, discourteous treatment of employees of customers. At this point, Mr. Fine, who was a young manager, was legitimately concerned about whether Petitioner's attitude would undermine his ability to do his job. Mr. Fine resolved to assess over the next three to six months whether Petitioner met the goals that he stated in the July 30 memorandum. In late October 1999, a representative of the Cleveland Clinic complained about Petitioner's handling of its account. The complaints included Petitioner's "flip attitude" and "lack of professionalism." Two months later, Mr. Fine received a more serious complaint because it involved a loss of revenue to Respondent and the advertiser. Due to some miscommunication, Respondent published the wrong advertisement for a customer. When the customer's representative telephoned Petitioner and complained, she blamed someone at the Fort Lauderdale Sun Sentinel, who had supplied her the wrong advertisement for publication. When she did not call him back on the day that she had promised, the customer representative called Respondent, complained about the poor handling of the account, noted the reduction in advertising from his company over the past year as compared to the prior year, and requested a different outside sales representative. Mr. Fine consulted with Ms. Sasser and Janet Stone, the Human Relations specialist assigned to advertising. The three agreed that Respondent should terminate Petitioner. Their decision was submitted through four levels of management--up to the level of Publisher--and each level approved the decision before it was implemented. On December 27, 1999--six days after the receipt of the last complaint--Mr. Fine and Ms. Stone met with Petitioner and told her that she had been terminated. At the hearing, Petitioner presented evidence of a contemporaneous complaint about age discrimination that she had made to a Human Relations specialist who had since left the employment of Respondent. Respondent contested this assertion, but Petitioner's August 22 memorandum states that, as a "female over 40 I feel the harassment and stress that you have been putting on me is totally unnecessary." Although not a formal complaint concerning age discrimination, this memorandum is an early mention of Petitioner's age within the context of harassment. Based on the testimony of coworkers, Mr. Fine was a high-pressure manager, given to yelling, but he did not make age-related comments to Petitioner. Even if Petitioner had timely made comprehensive complaints about age discrimination, the record in this case does not support her claim that her termination was due to age discrimination. Mr. Fine hired two outside sales representatives over 40 years old, and the only other outside sales representative whom he fired was under 40 years old. More importantly, he treated employees the same without regard to age. Most importantly, Petitioner's job performance provided Mr. Fine with ample reason to fire her. Without regard to the quality of the support that Petitioner received, customer satisfaction is paramount in advertising. In a competitive environment, Mr. Fine justifiably sought satisfaction of all customers, not just favored customers. Mr. Fine could not reasonably allow Petitioner to continue to treat discourteously representatives of advertisers, regardless of the merits of her claims of inadequate support. Past evaluations suggest that interpersonal relations was never Petitioner's strength. Despite an obvious talent at advertising sales and considerable experience, Petitioner's frustrations with the perceived incompetence of her coworkers and customers' employees weakened her interpersonal skills beyond a critical point, so that her other strengths no longer offset this important deficit.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 2nd day of July, 2002. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jan Hall-Szugye 3834 Panther Creek Road Clyde, North Carolina 28721 Ellen M. Leibovitch Adorno & Yoss, P.A. 700 South Federal Highway, Suite 200 Boca Raton, Florida 33432
The Issue Whether the Respondent, Bernard Hart, violated Section 112.313(4), Florida Statutes, by accepting free cable television service from a company holding a franchise with the City of Tamarac, Florida? Whether the Respondent violated Section 112.313(6), Florida Statutes, by using his official position to obtain such free cable television services? Whether the Respondent violated Section 111.011, Florida Statutes (1987), by failing to disclose such free cable television service?
Findings Of Fact General. The Respondent, Bernard Hart, was elected Mayor of the City of Tamarac (hereinafter referred to as "Tamarac"), Broward County, Florida, in March, 1986. The Respondent was the Mayor of Tamarac at all times pertinent to the Complaint at issue in this proceeding. The Respondent was sworn in as Mayor of Tamarac on April 26, 1986. Prior to holding office as Mayor of Tamarac, the Respondent had never held any public elective office. The Respondent served as Mayor of Tamarac for approximately two years until March, 1988. When the Respondent served as Mayor of Tamarac, the position was a part-time position and the Respondent was paid $90.00 a week. The Respondent is approximately 80 years of age. The Respondent does not now hold public office. Cable Television Services in The City of Tamarac. During the term of the Respondent's office as Mayor of Tamarac cable television services in Tamarac were provided pursuant to a franchise granted from Tamarac. From June, 1983, until February, 1988, the franchise for the cable television system in Tamarac was held by American Cable Systems of Florida, Ltd. (hereinafter referred to as "American Cable"). In approximately February, 1988, Continental Cablevision, Inc. (hereinafter referred to as "Continental"), acquired control of American Cable and took over the management of cable television services in Tamarac. American Cable's and Continental's Free Cable Television Services. During all times relevant to this proceeding, it was the policy of American Cable and Continental (hereinafter jointly referred to as the "Cable Companies"), to provide free cable service to public officials in the areas the Cable Companies served, including Tamarac. Free cable television services were provided to public officials by the Cable Companies only if requested by the public official. During the time that the Respondent served as Mayor of Tamarac, public officials other than the Respondent, including some in Broward County, received free cable television services from the Cable Companies. Any public official that requested free cable television service from the Cable Companies was requested to "monitor" the service he or she received. The request to monitor, however, was not the real reason why the free cable service was provided to the public official. The Cable Companies did not expect any public official to report to the Cable Companies or expect that the Cable Companies would gain any useful information from any report. The request to monitor, when made, was made to make the public official feel more comfortable about getting a free service. Monitoring cable television services would not provide a great deal of useful information to the Cable Companies because the picture quality received at one location would not necessarily reflect the quality of the picture received at other locations. The reason that the Cable Companies provided free cable television services to public officials was described as "good will." It was assumed that providing free cable television services to public officials "couldn't hurt". Although the weight of the evidence failed to prove that any public official, including the Respondent, agreed to vote on any matter favorably to the Cable Companies or otherwise use their official position (or the Respondent's position) to benefit the Cable Companies, the free cable television services were provided by the Cable Companies in the hope that public officials, including the Respondent, would be favorably inclined to the Cable Companies. Free cable television services were provided to public officials to influence them to look favorably on the Cable Companies. The free cable television services provided by the Cable Companies to public officials were generally not available to persons, who were not public officials. Free cable television services were, however, provided to officials of some condominium associations and employees of the Cable Companies. As a general rule, the Cable Companies did not solicit, offer, or invite public officials to take free cable television services. The free cable services were only provided if the public official requested the services. American Cable did offer free services to some public officials in the "western part of Broward County in 1986". Tamarac is in the western part of Broward County. The weight of the evidence, however, failed to prove if the Respondent or any other official of Tamarac was approached by the Cable Companies and offered free cable television services. The Cable Companies have also provided free cable television services in municipal buildings, such as police departments, fire stations and city halls. When the Respondent took office as Mayor in 1986, free cable television services were being provided by American Cable to the Mayor's office in the Tamarac City Hall. Walter Falck, the Mayor of Tamarac from March, 1976, though March, 1984, had the cable outlet moved into the Mayor's office in the Tamarac City Hall. Mayor Falck did not, however, review cable services when he received a complaint about the service from a constituent. The Mayor referred all complaints to the Tamarac City Manager to handle. Free Cable Television Services Provided to the Respondent. On April 12, 1986, cable television was installed by American Cable in the Respondent's home. From April 12, 1986, until January 30, 1990, the Respondent received basic cable television service, pay channels other than an adult channel, and remote control from the Cable Companies. The cable television services received by the Respondent from the Cable Companies during and after his term as Mayor of Tamarac were received without any charge to, or the payment by, the Respondent. The Respondent did not request that the free cable television services be disconnected or that he be charged for the services at any time while he was Mayor of Tamarac or when he left office in March, 1988. During late 1989, or early 1990, an employee of Continental was reviewing a list of persons who were receiving free cable television services. The employee noticed the Respondent's name on the list. The employee knew that the Respondent was no longer a public official. Therefore, the Respondent was informed that he would have to begin paying for the cable television services he was receiving in order to continue receiving the services. The Respondent requested that the service be disconnected. The free cable television services the Respondent received from the Cable Companies were terminated on January 30, 1990, after he indicated he did not want to pay for the services and requested that they be disconnected. In light of the policy of the Cable Companies that free cable television services were provided only upon a request of a public official, it is concluded that the Respondent requested, directly or indirectly, that the free cable television services be provided to him. Pending Cable Television Service Rate Increase. Prior to the Respondent's election as Mayor of Tamarac, American Cable had requested that Tamarac approve a rate increase. Because of the number of complaints about the services provided by American Cable, the requested rate increase was tabled for six months. American Cable's rate increase request was still pending when the Respondent took office as Mayor of Tamarac and when the Respondent was first provided with free cable television services by American Cable. Subsequent to the Respondent becoming Mayor of Tamarac, the American Cable rate increase request was approved. On May 14, 1986, on first reading the rate increase request was approved unanimously. On second reading the rate increase request was approved 4-1. Both readings of the American Cable rate increase request occurred after the Respondent began receiving free cable television services from American Cable. The Respondent voted in favor of the American Cable rate increase request on both readings. The Respondent's vote was the last vote cast. The American Cable increase in rate was contingent upon certain outstanding problems being corrected by July 1, 1986. The rate increase raised the rates charged in Tamarac to the middle of the rates charged by America Cable. The weight of the evidence failed to prove that the Respondent voted in favor of the American Cable rate increase in 1986, in exchange for the free cable television services provided to him by American Cable. In January, 1987, Tamarac lost the right to regulate the rates that Cable Companies charged. Municipalities, however, still had the right to grant franchises to operate cable television systems within their jurisdiction after January, 1987. The Respondent's Reason for Accepting Free Cable Television Services. Mr. Falck, the former Mayor of Tamarac, had received numerous complaints from residents of Tamarac about the quality of cable television services in the area. When the Respondent became Mayor in 1986, the Respondent also received complaints from his constituents about cable television services in Tamarac. The Respondent received complaints prior to the approval of American Cable's rate increase. After becoming Mayor, the Respondent had the cable television service in the Mayor's office in City Hall removed. The Respondent was in the Mayor's office until approximately noon each day. The Respondent removed the cable television hookup from the Mayor's office because he did not want to spend the time he spent in the Mayor's office monitoring cable television. The Respondent reported complaints that he received while serving as Mayor of Tamarac to the City Manager. He did not call the Cable Companies directly and report any complaints or problems with the cable television service he was aware of. Other Tamarac officials, including former Mayor Falck, Helen Massaro, who served on the Tamarac City Council in 1972, and from 1974 to 1988, and Sydney Stein, who served on the Tamarac City Council from 1984 until 1988, reported complaints they received about cable television services to the City Manager to handle. The Respondent testified during the formal hearing that he accepted the free cable television services while he was Mayor of Tamarac because he "considered it a function that [he] was doing on behalf of the citizens of the city." Transcript of June 4, 1991, Formal Hearing, page 115, lines 13-14. The Respondent indicated that he accepted the free services so that he could "monitor" the service when he received constituent complaints. The Respondent's testimony is rejected because of the following facts: The Respondent was aware that reception varied from location to location; The Respondent never contacted the Cable Companies directly to report any results of his purported monitoring; The Respondent removed the cable hookup from the Mayor's office. Therefore, the Respondent was not able to perform his "monitoring" service during the part of each day that he was in the Mayor's office; The Respondent continued to receive the free cable television services after he was no longer the Mayor of Tamarac and his need to "monitor" the services ended. The Respondent also testified that Sydney Stein, a member of the Tamarac City Council when the Respondent became Mayor, suggested that he accept the free cable television service so that the Respondent would be able to determine whether the complaints were valid. The Respondent indicated that Mr. Stein offered to make the necessary arrangements with American Cable for the free service to be provided to the Respondent. Based upon the weight of the evidence, it is concluded that Mr. Stein did not make the arrangements with American Cable for the Respondent's free cable services. Even if the evidence had proved that Mr. Stein requested that American Cable provide the Respondent with free cable television services, he would have done so on behalf of, and as agent for, the Respondent. Based upon the fact that the Cable Companies provided free cable television services to public officials to influence them to look favorably on the Cable Companies, it is concluded that the Respondent was provided free cable television services by the Cable Companies during his term as Mayor of Tamarac to influence him in his official capacity. The weight of the evidence also proved that the Respondent should have known why he was being provided free cable television services. The Respondent had not received free cable television services prior to being elected Mayor of Tamarac. The Respondent should have been aware, therefore, that cable television services were not generally available to members of the public without charge. Immediately after his election he was provided the free cable service. He should have realized that the free service was being provided to him because he had become the Mayor of Tamarac. Shortly thereafter the Respondent was required to vote on a rate increase request from American Cable, the company that first provided him with the free cable service. The Respondent should have had no doubt at that time why he was being provided free cable television services. Value of the Free Cable Television Services. The retail value of the free cable television services that the Respondent received between April 12, 1986, and March of 1988, was $1,649.43. The retail value of the free cable television services that the Respondent received for the entire period of time that free services were provided to the Respondent was $3,416.46. Although the Respondent received part of the $3,416.46 worth of free cable television services after his term as Mayor of Tamarac expired, all of the free services were received as a direct result of his position as Mayor of Tamarac. The cost to the Cable Companies for the free services provided to the Respondent was relatively insignificant. Failure to Report. The Respondent did not report the value of the free cable television services he received while Mayor of Tamarac pursuant to Chapter 111, Florida Statutes (1987).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report: (1) finding that the Respondent, violated Sections 112,313(4) and 112.313(6), Florida Statutes, as alleged in Complaint No. 90-31; (2) concluding that the Commission has no jurisdiction over the Respondent's alleged violation of Section 111.011, Florida Statutes, and, therefore, that portion of Complaint No. 90-31 is dismissed; and (3) imposing a civil penalty of $7,000.00 on the Respondent. DONE and ENTERED this 21st day of August, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 4. 26 and 31. The weight of the evidence proved that the services was installed on April 12, 1986. 3 27. 4 28. 5-6 35 and 37. 7-8 See 29 and 41. 9 29. 10 Not supported by the weight of the evidence. The Respondent's testimony on this point was not credible. 11 30. 12 56. 13 52. 14 53. 15 Not supported by the weight of the evidence. See 55. 16 23. 17 24. 18 25. 19 47. 20 Not relevant and cumulative. 21-22 47. 23 45. 24 11. 25 19. 26 12 and 20. But see 21. 27 18 and 32. 28 49. 29 18. 30 14-15. 31 15-16. 32 Hereby accepted. 33 16. 34-35 48. 36 49. 37 50. 38 35, 37 and 51. 39* 48-51. * Appears as a second proposed finding of fact 38. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3. 4 4. 5 8-9. 6-7 10. 8-12 Hereby accepted. 13 23-24. 14 24 and 42. 15 Not supported by the weight of the evidence. 16 33-34. 17 43. 18 13. Not supported by the weight of the evidence. Mr. Olmetti admitted that his testimony on this point was "total speculation." See 22. Although true, what is currently being provided is not relevant. 22 13 and 22. See 14-18. 23-27 Although these proposed findings of fact are generally true, they are not relevant to this proceeding. 28 See 12 and 20-21. 29 21. Official recognition that Tamarac is in western Broward County is taken. 30 18. See 21. Not supported by the weight of the evidence. Hereby accepted. See 32 and 49. 35 See 50-51. 36 See 18 and 50-51. 37 55. Not supported by the weight of the evidence. Not supported by the weight of the evidence. See 18 and 49. Not supported by the weight of the evidence. Hereby accepted. 42 44-45. 43 45. 44 5. Not supported by the weight of the evidence. The Respondent's testimony on this point was not credible. Although true, not relevant to this proceeding. The evidence also proved that the Respondent was well aware that Mr. Stein did not dictate what the Respondent should or should not do. 47 47. Hereby accepted. Not supported by the weight of the evidence. Mr. Stein merely testified that it was possible that made such a statement to the Respondent but that he did not known whether he actually did. 50-53 Not supported by the weight of the evidence. See 49. 54 Not supported by the weight of the evidence. Mr. Stein did not answer the question about whether he would release his records because an objection to the question was sustained as not being relevant. 55 43. 56 Hereby accepted. 57 45. 58 36. 59 See 37. The rate increase was not approved until all votes were cast. 60 38. 56. Why the Respondent failed to report the free cable service is not supported by the weight of the evidence. Not supported by the weight of the evidence. See 48. 63-64 Not relevant. 65 25 and 46-47. 66 Although generally true, this proposed finding of fact is not relevant. 67 36. 68 39. Not supported by the weight of the evidence. The improvements were made before the rate increase was finally approved. Although generally true, not relevant. 71-72 41. 73-74 Although generally true, not relevant. 75 Not supported by the weight of the evidence. The witnesses who testified on this matter indicated that his testimony about what discounts the Respondent might have been entitled to was merely speculation. 76-77 Although generally true, not relevant. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 Harry Boreth, Esquire Lloyd Glasser, Esquire GLASSER & BORETH 8751 West Broward Boulevard Plantation, Florida 33324 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Whether the application of Petitioner for registration as an electronic repair dealer should be denied.
Findings Of Fact Petitioner Jack Resnick d/b/a Smart Service petitioned for an administrative hearing upon receipt from the Respondent of a Notice of Intent to Deny License or Registration. The hearing was scheduled for November 27, 1978 at 2:00 p.m. in Tallahassee, Florida. Prior to the hearing the parties requested that the Hearing Officer write a Recommended Order upon submission of "Stipulation of Facts and Questions of Law" filed jointly by the parties, copy of which is attached hereto and made a part hereof. The instruments filed in this case reflect that in February, 1978 Petitioner Jack Resnick applied to the Respondent, Division of General Regulation, for an electronic repair dealer registration under the provisions of Chapter 468, Florida Statutes. In April, 1978 the Respondent notified Petitioner of its intent to deny said application for registration for the reason that applicant Jack Resnick intended to employ one Arthur Resnick as a repair work person In the business. Previously, in 1976 Arthur Resnick had been denied a registration certificate as an electronic service dealer by the Respondent, having been determined to be unfit and ineligible to be registered as an electronic repair service dealer. The Recommended Order entered in that cause, which was adopted as Respondent's final order, made the following; findings of fact: Arthur Resnick caused to be advertised in local (Florida)newspaper advertisements which would the public believe Arthur Resnick Television Repair Service was registered with the Bureau of Electronic Repair when, in fact, it was not. Arthur Resnick had been asked to disclose on his application for registration whether he had been convicted of a felony, misdemeanor, or any infraction other than traffic viola- tions to which Arthur Resnick answered "no" when, in fact, Arthur Resnick had been convicted of three counts of theft by deception involving the repair of television sets by the Court of Common Pleas in Montgomery County, Pennsylvania. The Hearing Officer concluded that: The acts and conduct of the Petitioner in operating without a registration; advertising in a leading and deceptive manner; making false statements as an inducement to the public to authorize repair, and his failure to answer truthfully to certain questions on his sworn application for registration is good and sufficient cause for the director of the Department of Business Regulation, Division of General Regulations to deny the Petitioner a registration certificate as an electronic service dealer. The order of the Respondent adopted the Recommended Order noting that it had received no exceptions to the Recommended Order from either party and thereupon denied the application for registration as an electronic service dealer filed by Arthur Resnick. The application of Petitioner Jack Resnick indicates that he is to be the sole proprietor of the business Smart Service. It indicates that Arthur Resnick, who has the same address as the Petitioner, is to do repair work with a possible employee named Jerry Cohen. Respondent gave no other reason for the denial of Petitioner's application except for the indicated employment of Arthur Resnick.
Recommendation Retract the Notice of Intent to Deny License or Registration which was based on the fact that Arthur Resnick was the prospective employee of the Petitioner. Grant Petitioner's application for registration as an electronic repair dealer providing he presently meets the requirements of the Respondent. DONE and ENTERED this 20th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David M. Hudson, Esquire Deputy General Counsel Depariment of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Alexander M. Siegel, Esquire 1303 North State Road 7 Margate, Florida 33062 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF GENERAL REGULATION DEPARTMENT OF BUSINESS REGULATION JACK RESNICK and SMART SERVICE, Petitioner, vs. CASE NO. 78-1687 DEPARTMENT OF BUSINESS REGULATION, DIVISION OF GENERAL REGULATION, Respondent. /
Findings Of Fact Petitioner, the AAI, Florida Chapter, is an affiliate member of the International Association of Arson Investigators, Inc. AAI, Florida Chapter, is a nonprofit corporation exempt from federal income tax under Section 501(c)(6) of the Internal Revenue Code, and is located at 2302 North Wallen Drive, Lake Park, Florida. The governing body for AAI, Florida Chapter, the International Association of Arson Investigators, is a world-wide organization dedicated to the suppression of arson and related criminal activities. The mission of the International Association of Arson Investigators is to provide education, training, and public awareness to combat these crimes. To this end, the International Association of Arson Investigators provides training through regional programs, seminars, and publications. The AAI, Florida Chapter, exists pursuant to a grant of authority from the International Association of Arson Investigators. However, the AAI, Florida Chapter, is a separate and distinct legal entity from the International Association of Arson Investigators. The membership of the AAI, Florida Chapter, is comprised of individuals involved in some professional aspect of arson suppression. Members are typically employed by fire departments, law enforcement agencies, and fire marshals' offices. Petitioner's membership also includes representatives from the Statewide Prosecutor's Office, the Florida Department of Law Enforcement, the various state attorneys' offices, and sheriffs' offices. Petitioner provides training for state agencies and educational organizations, including the Florida Fire College, Federal Law Enforcement Training Center, the National Fire Academy, and school districts, community colleges and public universities in Florida. Petitioner provides the personnel, supplies, equipment and materials for the training programs which it conducts. Some of the training seminars conducted by Petitioner receive law enforcement matching funds, and are approved for continuing education units for law enforcement personnel and for recertification contact hours for fire service personnel. The educational training and programs provided by AAI, Florida Chapter, are offered to various entities on a contractual basis. Notwithstanding Petitioner's contractual relationships with several educational entities, it has no authority or control over those entities. Petitioner is not accredited by nor is it a member of Southern Association of Colleges and Schools, the Florida Council of Independent Schools, or any other organization responsible for accrediting educational entities. Petitioner applied for a consumer certificate of exemption as an educational institution, and contends that the basis for such exemption is that it is an administrative office whose function is to assist or regulate the customary activities of its members.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a final order denying a consumer certificate of tax exemption to Petitioner, the International Association of Arson Investigators, Florida Chapter. DONE and ENTERED this 21st day of May, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5668 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. 1-12. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. 1. 1-18. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Linda Lettera General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Ruth Ann Smith, Esquire Tracy L. Allen, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Guy E. Burnette, Jr., Esquire William R. Lewis, Esquire Butler, Burnette & Pappas Bayport Plaza, Suite 1100 6200 Courtney Campbell Causeway Tampa, Florida 33607-1458 Larry Ruchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
