96-003925 Wlberth Gaviria vs. Florida Public Service Commission Status: Closed Recommended Order on Friday, January 17, 1997.

Summary: Pay phone provider had over 400 violations relating to pay telephones. Certificate was revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILBERTH GAVIRIA, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3925

)

FLORIDA PUBLIC SERVICE COMMISSION, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Administrative Law Judge, Susan B. Kirkland, held a formal hearing in

this case on December 16, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: No appearance.

For Respondent: Charles J. Pellegrini, Esquire

Florida Public Service Commission

2540 Shumard Oak Boulevard

Tallahassee, Florida 31399-0850

STATEMENT OF THE ISSUES

Whether Petitioner violated Rules 25-24.512 and 25-24.515, Florida

Administrative Code, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On March 20, 1996, Respondent, Florida Public Service Commission

(Commission), issued Proposed Agency Action Order No. PSC-96-0388-FOF-TC,

requiring Petitioner, Wilberth Gaviria (Gaviria), to show cause why he should

not be fined or his certificate Number 3320 should not be cancelled for

violations of Rules 25-24.512, Improper Use of a Certificate, and 25-24.515, Pay

Telephone Service, Florida Administrative Code. On April 9, 1996, Gaviria filed

a Petition to Initiate Formal Proceeding and an Answer and Response to Order to

Show Cause, in which he denied that he had violated Rules 25-24.512 and 25-

24.515, Florida Administrative Code.

The case was forwarded to the Division of Administrative Hearings on August

21, 1996, for assignment to an Administrative Law Judge. The case was set for

final hearing on November 18, 1996. On November 7, 1996, Petitioner filed a

Motion for Continuance, which was granted, and the final hearing was rescheduled

for December 16, 1996.

On November 27, 1996, Respondent filed a Request for Official Recognition,

requesting that official recognition be taken of the following: Chapter 364,

Florida Statutes, Rule Chapters 25-22 and 25-24, Florida Administrative Code,

Order No. PSC-96-0388-FOF-TC, and Order No. PSC-96-0548-FOF-TC. The request was

granted at the final hearing.

On December 13, 1996, counsel for Petitioner filed Notice of Counsel's

Withdrawal from Further Representation of Petitioner, Wilberth Gaviria.

Petitioner failed to appear at the final hearing. Respondent called the

following witnesses at the final hearing: Richard Moses, Ralph King, Chester

Wade, and Victor Cordiano. Respondent's Exhibits 1-140 were admitted in

evidence.

The transcript was filed on January 7, 1997. On January 13, 1997,

Respondent filed a Motion to Late File Proposed Recommended Order. Good cause

having been shown, the motion is GRANTED. Respondent submitted its proposed

recommended order on January 14, 1997.

FINDINGS OF FACT

1. Petitioner, Wilberth Gaviria, owns Gaviria, which is a pay telephone

service provider in Miami, Florida, and which holds Certificate No. 3320 from

the Florida Public Service Commission (Commission) issued on April 12, 1993.

2. Wilberth and Heiner Gaviria jointly owned a company named South

Telecommunications, Inc. (STI).

3. Rule 25-24.511(4), Florida Administrative Code, restricts a pay

telephone provider to a single certificate. In March 1996, the Commission

denied STI's application for a certificate to provide public pay telephone

service because Wilberth Gaviria held major ownership interests in both Gaviria

and STI and a certificate had been issued to Gaviria.

4. The Commission also denied STI's application because the Commission

determined that STI had willfully misrepresented that it was not providing pay

telephone service without a certificate.

5. In May, 1995, the Florida Pay Telephone Association forwarded to the

Commission a complaint from Liberty Tel. Inc. (Liberty), a pay telephone service

provider in Miami.

6. Liberty alleged that STI, although not issued a certificate by the

Commission, was soliciting location owners under contract with Liberty.

7. Liberty alleged that it had received seven letters from an agent of

STI, advising that STI had entered into contracts with seven location owners

alleged to be under contract with Liberty and requesting that Liberty remove its

pay telephones from those locations. In response to the letters, Liberty

advised the seven location owners of their contractual obligations to Liberty.

8. Liberty also alleged in its complaint that it had checked three Gaviria

pay telephones and found the following violations:

a. local calls were limited to ten minutes

for twenty-five cents;

b. charges in excess of tariff for the

Miami-Fort Lauderdale extended calling plan;

c. 0 calls were not routed to the local

exchange company;

d. incoming calls were blocked;

e. the 211 repair message was incomplete; and

f. STI nameplates were on the telephones.

9. On October 23, 1995, the Commission received a complaint from Alberto

Menendez of Alberto and Sons Meat Market in Miami, alleging that STI failed to

return telephone calls concerning two pay telephones which were damaged and out

of operation, failed to respond to messages requesting repair, failed to remove

the telephones from Mr. Menedez's property until five weeks after a request to

do so, and failed to restore the premises to a reasonable condition after

removing the telephones.

10. As a result of the complaints from Libery and Mr. Menendez, the

Commission staff conducted four field evaluations, beginning in June, 1995.

11. The Commission staff conducts field service evaluations of pay

telephones in Florida using a checklist consisting of the following 29

criteria/violations:

1. Telephone was not in service.

2. Telephone was not accessible to the

physically handicapped.

3. Telephone number plate was not displayed.

4. Address of responsible party for refunds/repairs

was not displayed.

5. Coin-free number for repairs/refunds did

not work properly.

6. Current directory was not available.

7. Extended Area Service and Local calls were not

$.25 or less.

8. Wiring not properly terminated or in poor

condition.

9. Address of pay telephone location was not

displayed.

10. Instrument was not reasonably clean.

11. Enclosure was not adequate or free of trash.

12. Glass was chipped or broken.

13. Insufficient light to read instructions at night.

14. Name of provider (as it appears on the

certificate) was not displayed.

15. Local Telephone Company responsibility

disclaimer was not displayed.

16. Clear and accurate dialing instructions were

not displayed.

17. Statement of services not available was not

displayed.

18. Automatic coin return function did not operate

properly.

19. Incoming calls could not be received/or bell

did not ring loud enough.

20. Direct coin free service to the local operator

did not work.

21. Direct coin free service to local Directory

Assistance did not work.

22. Access to all available interexchange carriers

was not available.

23. Coin free service to 911 did not work.

24. 911 could not verify the street address of the

pay phone.

ansmission was not adequate or contained noise.

26. Did not comply with 0 interLATA Toll rate

cap - AT and T opr. chg $.25.

27. Combinations of nickels and dimes did not

operate correctly.

28. Dial pad did not function after call was answered.

29. 0 area code local number did not go to

LEC operator as required.

Hereinafter, these violations will be referenced by the number preceding each

violation. For example, telephone not in service will be referenced as "1."

12. On June 7, 1995, Ralph King, an evaluator for the Commission evaluated

Gaviria pay telephone number 305 751 8327 and found the following violations: 1,

3, 4, 6, 9, 13, and 14.

13. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305

751 8523 and found the following violations: 3, 4, 6, 8, 9, 14, 15, and 16.

14. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305

633 9237 and found the following violations: 3, 4, 5, 6, 7, 9, 10, 15, 16, 19,

22, and 29.

15. On June 9, 1995, Mr. King evaluated Gaviria pay telephone number 305

920 9902 and found the following violations: 2, 3, 4, 5, 6, 7, 9, 15, 16, 19,

21, and 22.

16. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305

854 9684 and found the following violations: 3, 4, 5, 6, 7, 9, 14, 15, 16, 22,

27, and 29.

17. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305

854 9087 and found the following violations: 4, 5, 6, 7, 9, 14, 15, 16, 27, and

29.

18. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305

324 9023 and found the following violations: 6, 9, 14, 15, 16, 22, and 29.

19. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305

350 9020 and found the following violations: 1, 4, 5, 6, 9, 13, 14, 20, 22, 23,

27, and 29.

20. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305

350 9096 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 15, 16,

19, 22, 27, and 29.

21. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305

573 8079 and found the following violations: 3, 4, 5, 6, 7, 9, 19, 22, 27, and

29.

22. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305

751 8248 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 19, 22,

and 29.

23. On June 7, 1995, Mr. King evaluated Gaviria pay telephone number 305

751 8378 and found the following violations: 1, 3, 4, 5, 6, 7, 9, 13, 14, 16,

19, and 29.

24. On June 6, 1995, Mr. King evaluated Gaviria pay telephone number 305

883 8281 and found the following violations: 4, 5, 6, 9, 13, 14, and 15.

25. On June 6, 1995, Mr. King evaluated Gaviria pay telephone number 305

261 9899 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 15, 16,

and 19.

26. On June 8, 1995, Mr. King evaluated Gaviria pay telephone number 305

673 9337 and found the following violations: 4, 5, 6, 7, 9, 13, 22, and 29.

27. On June 8, 1995, Mr. King evaluated Gaviria pay telephone number 305

673 9125 and found the following violations: 4, 5, 6, 7, 9, and 29.

28. On June 8, 1995, Mr. King evaluated Gaviria pay telephone number 305

221 9671 and found the following violations: 4, 5, 6, 11, and 17.

29. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305

751 9731 and found the following violations: 4, 6, 14, 15, 16, 22, and 29.

30. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305

751 9467 and found the following violations: 4, 5, 6, 7, 14, 19, 21, 22, and

29.

31. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305

751 9433 and found the following violations: 4, 5, 6, 14, 22, and 29.

32. On June 15, 1995, Mr. King evaluated Gaviria pay telephone number 305

751 9087 and found the following violations: 3, 4, 5, 6, 7, 9, 13, 14, 15, 16,

17, 19, 22, and 29.

33. On June 12, 1995, Mr. King evaluated Gaviria pay telephone number 305

861 9041 and found the following violations: 4, 5, 6, 7, 14, 15, 16, 19, 22,

27, and 29.

34. On June 14, 1995, Mr. King evaluated Gaviria pay telephone number 305

685 9345 and found the following violations: 4, 5, 6, 7, 14, 15, 16, 19, 22,

27, and 29.

35. On June 14, 1995, Mr. King evaluated Gaviria pay telephone number 305

685 9342 and found the following violations: 4, 5, 6, 7, 9, 14, 15, and 16.

36. The Commission staff advised Gaviria of the June, 1995 service

evaluation results on June 14, 1995 by regular mail (File Nos. TE793.9501,

TE793.9502), on July 11, 1995, by certified mail (File Nos. TE793.501,

TE793.9502), on July 12, 1995 by regular mail (File No. TE793.9503), on August

4, 1995, by certified mail (File No. TE793.9503), each time requiring a response

within 15 days and corrective measures.

37. Gaviria did not respond to the June 14, 1995 and July 12, 1995,

letters or to the July 11, 1995 and August 4, 1995 follow-up letters.

38. On August 9, 1995, Commission staff transmitted the June 14, 1995,

July 11, 1995, July 12, 1995, and August 4, 1995 letters to Gaviria by facsimile

and advised Gaviria that it appeared to be in violation of the Commission's rule

to report changes in circumstances.

39. On August 10, 1995, Commission staff advised counsel for Gaviria that

the letters had been transmitted to Gaviria by facsimile and that Gaviria had

stated that it would respond by August 21, 1995. Additionally, Commission staff

advised counsel for Gaviria that they would consider recommending that the

Commission initiate a show cause proceeding if Gaviria's response was not

satisfactory and timely.

40. On August 14, 1995, Gaviria responded to File No. TE793.9501. The

response consisted of 56 admissions, 45 claims of vandalism without

substantiation, 14 denials without substantiation, and 4 claims that the line

was going to be transferred. Commission staff considered the response

unsatisfactory.

41. On August 21, 1995, Gaviria responded to File No. TE793.9503. The

response consisted of 3 admissions, 42 denials without substantiation, and 1

claim that the line was going to be transferred. Commission staff considered

the response unsatisfactory.

42. On September 6, 1995, Commission staff advised counsel for Gaviria

that, according to Southern Bell, the four lines Gaviria claimed were going to

be transferred in response to File No. TE793.9501 were still assigned to

Gaviria's certificate. Commission staff also advised counsel for Gaviria that

Gaviria had misinterpreted the Commission's directory availability rule, that it

had erroneously responded to the Commission's directory access rule, and that

telephone number 305 751 9087 did not have required signage. Counsel was also

advised of the procedure required to obtain certification for STI.

43. In September 1995, Commission evaluator King returned to Miami and

evaluated 39 Gaviria pay telephones, 19 of which had been evaluated in June,

1995.

44. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone

number 305 751 8523 and found the following violations: 4, 6, and 13.

45. On September 11, 1995, Mr. King re-evaluated Gaviria pay telephone

number 305 920 9902 and found the following violations: 2, 6, 7, 9, 11, and 19.

46. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone

number 305 350 9020 and found the following violations: 4, 6, 8, 9, and 24.

47. On September 14, Mr. King re-evaluated Gaviria pay telephones numbered

305 751 8327, 305 350 9096 and 305 751 8378 and found violations 4 and 6 at each

of the telephones.

48. On September 13, Mr. King re-evaluated Gaviria pay telephones numbered

305 751 8248, 305 673 9125, and 305 673 9337 and found violations 4 and 6 at

each of the telephones.

49. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone

number 305 883 8281 and found the following violations: 4, 6, 7, 9, and 13.

50. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone

number 305 261 9899 and found the following violations: 6, 7, 9, 13, and 19.

51. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone

number 305 221 9671 and found violations 6 and 7.

52. On September 13, 1995, Mr. King re-evaluated Gaviria pay telephone

number 305 751 9732 and found the following violations: 4, 6, and 9.

53. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone

number 305 751 9467 and found the following violations: 4, 6, 9, and 20.

54. On September 14, 1995, Mr. King re-evaluated Gaviria pay telephone

number 305 751 9433 and found the following violations: 4, 6, and 9.

55. On September 13, 1995, Mr. King re-evaluated Gaviria pay telephone

number 305 751 9087 and found the following violations: 4, 6, and 13.

56. On September 12, 1995, Mr. King re-evaluated Gaviria pay telephone

number 305 861 9041 and found the following violations: 4, 6, and 27.

57. On September 15, 1995, Mr. King re-evaluated Gaviria pay telephone

number 305 685 9341 and found the following violations: 6, 7, and 9.

58. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number

305 751 9848 and found the following violations: 4, 6, and 19.

59. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number

305 751 8994 and found violations 4 and 6.

60. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number

305 751 9763 and found the following violations: 2, 4, 6, and 14.

61. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number

305 751 9860 and found the following violations: 4, 6, 19, and 24.

62. On September 13, 1995, Mr. King evaluated Gaviria pay telephone number

305 751 9992 and found the following violations: 4, 6, and 19.

63. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number

305 573 9320 and found the following violations: 2, 6, 13, 14, 15, 16, 17, and

19.

64. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number

305 867 9725 and found the following violations: 3, 4, 6, 9, 13, 14 and 19.

65. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number

305 868 9167 and found the following violations: 3, 4, 6, 9, 13, 14, 15, and

19.

66. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number

305 868 9727 and found the following violations: 4, 6, 9, 13, 19, and 24.

67. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number

305 868 9823 and found the following violations: 4, 6, 13, 19, and 24.

68. On September 12, 1995, Mr. King evaluated Gaviria pay telephone number

305 868 9357 and found the following violations: 4, 6, 9, 19, and 24.

69. On September 14, 1995, Mr. King evaluated Gaviria pay telephones

numbered 305 751 9906 and 305 751 9778 and found the following violations for

each telephone: 2, 4, and 6.

70. On September 14, 1995, Mr. King evaluated Gaviria pay telephones

numbered 305 751 8906 and 305 573 9876 and found violations 4 and 6 at each

telephone.

71. On September 15, 1995, Mr. King evaluated Gaviria pay telephones

numbered 305 691 9068 and 305 694 9415 and found violations 4 and 6 at each

telephone.

72. On September 15, 1995, Mr. King evaluated Gaviria pay telephone number

305 693 9451 and found violation 4.

73. On September 15, 1995, Mr. King evaluated Gaviria pay telephone number

305 694 9415 and found the following violations: 4, 6, 9, 13, and 24.

74. On September 15, 1995, Mr. King evaluated Gaviria pay telephone number

305 883 9851 and found the following violations: 2, 6, 7, and 9.

75. Commission staff advised Gaviria of the September 1995 service results

on September 20, 1995 by regular mail (File Nos. TE793.9504, TE793.9505,

TE793.9506, TE793.9507), requiring a response within 15 days and corrective

measures.

76. On October 2, 1995, counsel for Gaviria wrote to Commission staff

stating that Gaviria had been unable to discover the majority of violations upon

inspection and that Gaviria believed that the evaluator was intentionally

misstating the condition of the telephones.

77. In his letter to Commission staff, counsel for Gaviria suggested a

meeting with the evaluator and his supervisor. It was left for counsel to

arrange for the meeting, but he did not do so.

78. In November, 1995 two other Commission evaluators conducted an

evaluation of two Gaviria pay telephones, one of which had been evaluated

previously. For each of the telephones, the evaluators found violations 4 and

6.

79. Commission staff advised Gaviria of the November, 1995 evaluation

results on November 14, 1995, by regular mail (File No. TE793.95080), requiring

a response within 15 days and corrective measures.

80. On November 26, 1995, Gaviria timely responded to the November 14,

1995 letter; however his response consisted of denials without substantiation.

Commission staff considered the response unsatisfactory.

81. On February 8, 1996, Commission staff filed a recommendation that the

Commission order Gaviria to show cause why it should not have its certificate

revoked or be fined for violations of Commission rules.

82. On March 20, 1996, the Commission issued Order No. PSC-96-0388-FOF-TC,

in which it ordered Gaviria to show cause why it should not be fined or why the

Commission should not revoke its certificate for violations of Rules 25-24.512

and 25-24.515, Florida Administrative Code.

83. On April 9, 1996, Gaviria timely filed an answer and petition to

initiate formal proceedings before the Commission.

84. In March, 1996, Mr. King returned to Miami to re-evaluate Gaviria pay

telephone number 305 861 9041 and found the following violations on March 15,

1996: 4, 6, 14, 15, 26, and 29.

85. Commission staff advised Gaviria of the March, 1996 service evaluation

results on March 20, 1996, by regular mail (File No. TE793.9601), requiring a

response within 15 days and corrective measures.

86. On March 31, 1996, Gaviria timely responded to the March 20, 1996

letter by making denials without substantiation. Commission staff considered

the response unsatisfactory.

87. In October 1996, Commission evaluator Chester Wade went to Miami to

re-evaluate 23 of Gaviria's pay telephones.

88. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephone number

305 633 9237 and found the following violations: 1, 3, 6, 9, 14, and 19.

89. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number

305 751 9433 and found the following violations: 6, 9, 11, and 14.

90. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number

305 691 8180 and found the following violations: 2, 6, and 14.

91. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number

305 868 9357 and found the following violations: 6, 9, 14, and 24.

92. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephone number

305 751 9467 and found the following violations: 6, 14, and 20.

93. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephone number

305 854 9087 and found violations 6 and 14.

94. On October 22, 1996, Mr. Wade evaluated Gaviria pay telephones

numbered 305 751 9732; 305 751 8327; 305 751 8900; 305 751 9906; 305 751 9778;

305 751 8378; 305 573 9876; 305 673 9125; 305 673 9337; 305 861 9041; 305 868

9823; and 305 868 9727 and found violations 6 and 14 for each of the telephones.

95. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephones

numbered 305 854 9684; 305 693 9451; 305 694 9415; and 305 691 9068 and found

violations 6 and 14 at each telephone.

96. On October 21, 1996, Mr. Wade evaluated Gaviria pay telephone number

305 751 9087 and found the following violations: 6, 14, and 20.

97. Commission staff advised Gaviria of the October 1996 service

evaluation results on November 6, 1996, by regular mail (File Nos. TE793.9603

and TE793.9604), requiring a response within 15 days and corrective measures.

98. On November 20, 1996, Gaviria timely responded to the letter. The

response consisted of 31 denials without substantiation; 23 claims of vandalism

without substantiation, 2 admissions, and 1 inaccurate claim of ownership.

Commission staff considered the response to be unsatisfactory.

99. Commission Staff performed five separate field service evaluations on

38 Gaviria pay telephones, finding a total of 439 violations. Of that total,

twenty percent were repeated violations.

100. Contrary to its assertions, Gaviria placed no orders for telephone

directories to Bell South Telecommunications in the period June 6, 1995 to

September 15, 1996.

101. Gaviria transferred telephones 305 920 9902; 305 883 8281; 305 262

9899; 305 221 9671; and 305 685 9342 only on September 18, 1995, following the

Commission's September 1995 evaluation and even then without correcting the

violations as it had claimed.

102. The Commission revokes approximately 90 certificates for public

convenience and necessity each year for violations as comparatively minor as a

failure to pay regulatory assessment fees or to notify the Commission of a

change of location. Therefore, to revoke Gaviria's certificate for its more than

425 violations on 38 telephones over a period of 16 months would be

proportionate to the offense.

CONCLUSIONS OF LAW

103. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes.

104. The Commission has the burden to establish the violations by clear

and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

105. Chapter 364, Florida Statutes, sets forth the Commission's authority

to regulate telecommunications companies, including pay telephone providers.

106. Section 364.01(4), Florida Statutes, provides that the Commission

shall exercise its exclusive juridiction in order to :

Protect the public health, safety and welfare

by ensuring that basic telecommunications

services are available to all consumers in

the state at reasonable and affordable prices.

107. Section 364.3375, Florida Statutes, provides that no person shall

provide telephone service without first obtaining from the Commission a

certificate of public convenience and necessity to provide such service.

108. Section 364.285(1), Florida Statutes, provides:

The commission shall have the power to impose

upon any entity subject to its jurisdiction

under this chapter which is found to have

refused to comply with or to have willfully

violated any law rule or order of the

commission or any provision of this chapter

a penalty for each offense of not more than

$25,000, which penalty shall be fixed, imposed

and collected by the commission; or the

commission may, for any such violation, amend,

suspend, or revoke any certificate issued by it.

109. Chapter 25-24, Part XI, Florida Administrative Code, sets forth rules

governing the regulation of pay telephone service providers.

110. Rule 25-24.511(4), Florida Administrative Code, provides that the

Commission will grant a certificate if the grant is in the public interest and

that one certificate per applicant will be granted unless granting additional

certificates is shown to be in the public interest.

111. Rule 25-24.514(1)(b), Florida Administrative Code provides that the

Commission may cancel a company's certificate for violation of Commission rules

or orders or violation of Florida Statutes.

112. Rule 25-24.515(1), Florida Administrative Code, provides that pay

stations shall be lighted during hours of darkness when light from other sources

is not adequate to read instructions and use the instrument.

113. Rule 25-24.515(3), Florida Administrative Code, provides that each

telephone station shall permit access to 911 without requiring the use of a

coin, paper money or a credit card.

114. Rule 25-24.515(4), Florida Administrative Code, provides that each

station shall, without charge, permit access to local directory assistance and

the telephone number of any person responsible for repairs or refunds.

115. Rule 25-24.515(5), Florida Administrative Code, provides that each

telephone station shall be equipped with a legible sign, card or plate of

reasonable permanence which shall identify the following: telephone number and

location address of such station, name of the certificate holder and the party

responsible for repairs and refunds, address of responsible party, free

telephone number of responsible party, clear dialing instructions (including

notice of lack of availability of local or toll services), and where applicable,

a statement that the telephone is not maintained by the local exchange company.

116 Rule 25-24.515(6), Florida Administrative Code provides that each

telephone station which provides access to any interexchange company shall

provide coin free access to all locally available interexchange companies.

117 Rule 25-24.515(7), Florida Administrative Code, provides that all

intraLATA calls, including operator service calls, shall be routed to the local

exchange company.

118 Rule 25-24.515(8), Florida Administrative Code, provides that each

telephone station shall allow incoming calls to be received, with the exception

of confinement facilities, hospitals and schools, and at locations specifically

exempted by the Commission.

119. Rule 25-24.515(10), Florida Administrative Code, provides that the

charge for calls may not exceed the rates shown in the local exchange company

Pay Telephone Access Tariff.

120. Rule 25-24.515(11)(a), Florida Administrative Code, provides that

each pay telephone service company shall make all reasonable efforts to minimize

the extent and duration of interruptions of service.

121. Rule 25-24.515(12), Florida Administrative Code, provides that where

there are fewer than three telephones located in a group, a directory for the

entire local calling area shall be maintained at each station. Where there are

three or more telephones located in a group, a directory for the entire local

calling area shall be maintained at every other station. However, where

telephone stations are fully enclosed, a directory shall be maintained at each

station.

122. Rule 25-24.515(13), Florida Administrative Code, provides that normal

maintenance and coin collection activity shall include a review of the

cleanliness of each station and reasonable efforts shall be made to ensure that

95 percent of all stations are clean and free of obstructions.

123. Rule 25-24.515(14), Florida Administrative Code, provides that each

telephone station shall conform to the American National Standards

Specifications for Making Buildings and Facilities Accessible and Usable by

Physically Handicapped People.

124. The Commission has alleged that Gaviria violated Rule 25-24.512,

Florida Administrative Code which provides:

No certificate of public convenience and

necessity authorizing pay telephone service

shall be sold, assigned, or transferred.

125. It is the Commission's position that Gaviria violated Rule 25-24.512

because it allowed STI nameplates to be placed on some of its telephones.

Although the evidence does show that STI nameplates were on some of Gaviria's

telephones, that in and of itself does not establish that Gaviria sold, assigned

or transferred its certificate. The Commission has failed to establish by clear

and convincing evidence that Gaviria violated Rule 25-24.512, Florida

Administrative Code.

125. The Commission has established by clear and convincing evidence that

Gaviria has willfully conducted pay telephone services, in the period beginning

June 1995 through October 1996, in violation of Rules 25-24.515(1), (3), (4),

(5), (6), (7), (8), (10), (11)(a), (12), (13), and (14), Florida Administrative

Code.

126. By its conduct of its pay telephone services, Gaviria has shown that

it is not in the public interest that it be permitted to continue to hold

Certificate No. 3320. The severity of the violations of the Commission's rules

is sufficient to justify that Certificate No. 3320 be revoked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered finding that Wiberth Gaviria has

willfully violated Rule 25-24.515, Florida Administrative Code and that his

certificate of public convenience and necessity Certificate No. 3320 be revoked.

DONE AND ENTERED this 17th day of January, 1997 in Tallahassee, Leon

County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of January, 1997.

COPIES FURNISHED:

Charles J. Pellegrini, Esquire

Florida Public Service Commission

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399-0850

Wlberth Gaviria

6156 Southwest 133rd Place

Miami, Florida 33183-5131

Blanca Bayo

Director of Records and Recording

Public Service Commission

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399-0850

William D. Tallbott, Executive Director

Public Service Commission

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399-0850

Rob Vandiver, General Counsel

Public Service Commission

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399-0850

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the

date of this recommended order. Any exceptions to this recommended order should

be filed with the agency that will issue the final order in this case.