STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 93-5714

) 93-5715

WHITE CONSTRUCTION COMPANY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on April 25, 1994.

APPEARANCES

For Petitioner: Paul Sexton, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwanee Street

Tallahassee, Florida 32399-0458

For Respondent: Joseph W. Lawrence, II, Esquire

Cummings, Lawrence and Vezina, P.A. 1600 Southeast 17th Street, Suite 304 Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUES

The issues in this case are: a) whether White Construction Company, Inc. timely filed its requests for hearing with the Department of Transportation in response to notices of intent to suspend White's certificate of qualification because of alleged delinquencies on State Project Nos. 97770-3305 and 97770-3306 and; (b) if not, whether the doctrine of equitable tolling, waiver, estoppel or other legal or equitable principles apply under the facts of this case such that White is entitled to a formal hearing on the merits of the department's determination of delinquency.

PRELIMINARY STATEMENT

These cases were transferred to the undersigned after a motion hearing and recusal of the initial hearing officer on November 29, 1993. The cases were consolidated, and after consideration of briefs and the transcript of the November 29th hearing, the issue was limited as stated above.

The parties' prehearing stipulation filed April 22, 1994 provides a thorough discussion of stipulated facts and disputed issues. The facts as stipulated have been incorporated here.

At hearing, Petitioner (the Department) presented the following witnesses: Gary Geddes, Michael Landry, Ralph Burrington, Ava Parker, Charles Peterson, Charles Goodman, Kathleen Denny, Harry Morris and Ray Daniel. Department exhibits #1-9 were received in evidence.

Respondent (White) presented the testimony of Luther White, Jr., and its two exhibits (Respondent's #1-2) were received in evidence. In addition, the depositions of the following were submitted: Burney Keen, James Zaleski, Mishka Randall, James Lairscey, Patti Cook, Danny Sanders and Jeff Spenser. As permitted, the department filed objections to certain portions of the depositions of Patti Cook and Burney Keen. Those objections, based on less than ten pages of "leading" questions, are overruled.

The hearing transcript was filed and both parties submitted proposed recommended orders and post-hearing briefs. Those have been carefully considered and the parties' proposed findings of fact are addressed in the attached appendix.

FINDINGS OF FACT

1. White Construction Company, Inc. (White) is a contractor prequalified to bid on Department of Transportation (Department) construction projects in excess of $250,000. It was incorporated in 1951 and maintains a home office in Chiefland, Florida. White was the successful bidder on three projects that are included within the Department's Seminole Expressway Project in Seminole County which is being funded and supervised by the Department's Turnpike Office. The projects are three contiguous segments and are identified as State Project Nos. 97770-3304, 97770-3305 and 97770-3306. The Seminole Expressway Project consists of twelve separate projects.

   
   

2. HNTB Corporation is the Department's Resident Engineer for Project Nos. 97770-3304 and 97770-3306 and maintains an office at 2927 US 17-92 in Sanford. ICF Kaiser Engineers is the Resident Engineer for Project No. 97770-3305 and maintains an office in a trailer at the job site. The Resident Engineers are the main liaison between White and the Department on the Project. The Department's Turnpike Office maintains a local office at 112 Beider Avenue in Casselberry. The Resident Engineers are supervised from that location by Mr. Gary Geddes, the Department's Program Manager, in conjunction with Mr. Ray Daniel, an Area Engineer who is employed by Post, Buckley, Schuh and Jernigan, which is under contract with the Department.

   
   

3. The Resident Engineers, though employed by private consultants, serve as the Department's representatives and are delegated the title of Engineer of the Project for the Department.

   
   

4. On July 30, 1993, the Department issued notices of intent to suspend White's certificate of qualification because of alleged delinquencies in White's performance on State Project Nos. 97770-3305 and 97770-3306. The Department's notices of intent to suspend were received by White at its Chiefland offices on August 3, 1993. Each notice contained the following language:

   
   

   1. Pursuant to Florida Administrative Code Rule 14-23 and in accordance with this determination, we intend to suspend your Certificate of Qualification and those of your affiliates. This suspension will

      become conclusive final agency action

      unless you request an Administrative Hearing within ten (10) days of receipt of this notice.

      
      

      Your request for a hearing shall be in writing and shall be filed with the Clerk of Agency Proceedings, Mail Station 58, Haydon Burns Building, 605 Suwanee Street, Tallahassee, Florida 32399-0450 within ten

      1. days of receipt of this notice. A copy of the request for hearing shall also be provided to the State Construction Engineer, Mail Station 31, Haydon Burns Building, 605 Suwanee Street, Tallahassee, Florida

         32399-0450. The request for hearing shall include:

         
         

         1. The name and address of the party making the request;

         2. A statement that the party is requesting a formal or informal proceeding; and

         3. All specific facts and circumstances which the Contractor believes legally excuses the unsatisfactory progress on the project.

      
      

      A request for hearing is filed when it is delivered to and received by the Clerk of Agency Proceedings. If a hearing is timely requested after the receipt of the notice of the intent, the hearing shall be held within

      30 days after receipt by the Hearing Officer of the request for hearing in accordance with

      337.16 of the Florida Statutes.

      
      

   2. In addition to a request for an Administrative Hearing and in accordance with Article 8-8.2 of the Special Provisions of this project, you are hereby given opportunity to request an extension of allowable contract time in an amount of cause progress on this contract to be acceptable or to submit other information to show that progress of work is not delinquent. (Petitioner's Exhibit #7, emphasis added)

      
      

5. White forwarded the two Notices of Intent to its attorneys, Cummings, Lawrence and Vezina, P.A. On August 11, White's attorneys sent to Mr. Burney Keen of White Construction, via Federal Express Priority Morning Delivery, a package containing originals and copies of requests for formal hearing and for contract time extensions for both projects, with written instructions to have the requests executed and delivered to the Clerk of Agency Proceedings and James Lairscey, via Federal Express, and to hand deliver copies to the Project Engineers no later than August 13.

6. The package from White's attorneys did not arrive at White's offices until late in the afternoon on August 12, when Mr. Keen was no longer in the office. Mr. Keen did not receive the package from White's counsel until the morning of August 13.

   
   

7. Notwithstanding the Priority Delivery designation, Federal Express delivery to White's Chiefland office occurred between 3:00 p.m. and 5:00 p.m.

   
   

8. Mr. Keen instructed his secretary, Patti Cook, to have the documents executed by an officer of White, and to have them hand-delivered to the Department's Resident Engineers and delivered to the Department's Tallahassee offices by Federal Express, in accordance with counsel's instructions.

   
   

9. On Friday afternoon, August 13, 1993, White hand-delivered its request for hearing, along with its requests for contract time extension, to the Department's two Resident Engineers. On that same day, White sent out a package containing copies of these documents by Federal Express addressed to Mr. J. Lairscey, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399.

   
   

10. Mr. Keen and Ms. Cook both believed that J. Lairscey was the Clerk of Agency Proceedings. This is not surprising since at his deposition, J. Lairscey, who is the State Construction Engineer for the Department, did not know who the Clerk of Agency Proceedings was either.

    
    

11. Standard operating procedure for the Project established by the Department at the preconstruction conference required that all correspondence from White be sent to the Department's Resident Engineers.

    
    

12. Mr. Keen believed it to be of utmost importance to timely hand-deliver the requests for formal hearing to the Department's Resident Engineers.

    Although White had filed notices or requests with the Department Clerk in the past, this was Mr. Keen's first experience with the delinquency filing procedures.

    
    

13. The package arrived at the Department's offices in Tallahassee on Saturday, August 14, 1993, and was delivered to Mr. Lairscey's office, MS 31, and not MS 58 (which is the Clerk of Agency Proceedings' Mail Station and office) on the morning of August 16, 1994.

    
    

14. The package delivered to ICF Kaiser contained an original letter from White addressed to Michael Landry, which requested an extension of time on Project No. 97770-3305 and referred to an enclosed request for hearing. The package also contained an original letter addressed to: Clerk of Agency Proceedings, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. The letter to the Clerk requested a formal hearing in response to the Department's July 30th Notice of Intent and referred to three large appendices which were enclosed.

    
    

15. Upon its receipt on August 13, 1993, a secretary and the office engineer at ICF Kaiser's office recognized that they received misdirected originals of important legal documents.

    
    

16. The office engineer and secretary telephoned Ray Daniel, the Department's Area Engineer, at the Department's office in Casselberry and told him that they had received from White what looked like an original legal document, which they did not think they were supposed to have. They questioned

    whether the documents should be redirected to the Department. Mr. Daniel instructed them not to send the documents to him.

    
    

17. Mr. Daniel knew that requests for hearing should be sent to the Clerk of Agency Proceedings in Tallahassee, but was not sure that a mistake was made and took no action regarding the request for hearing.

    
    

18. The documents were filed away at ICF Kaiser until August 27, 1993, when Michael Landry followed up an inquiry from Ray Daniel and had the originals forwarded to the Turnpike's Casselberry office.

    
    

19. The package delivered to HNTB Corporation also on August 13 contained an original letter from White addressed to Ralph Burrington which requested an extension of time on Project No. 97770-3306 and referred to an enclosed request for hearing. Like its counterpart, this package also contained an original letter addressed to: Clerk of Agency Proceedings, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. The letter to the Clerk requested a formal hearing in response to the Department's July 30th Notice of Intent and referred to three large appendices which were enclosed.

    
    

20. The Resident Engineer at HNTB, Mr. Ralph Burrington, did not note that the documents were originals and filed them away. Mr. Burrington's normal procedure is to forward such documentation by facsimile to the Department's Casselberry office, but in this instance he feels he made a mistake.

    
    

21. The package delivered to the Department's Tallahassee offices on Saturday, August 14, 1993, contained one signed photocopy of the requests for formal hearing for Project No. 97770-3305 addressed to the Clerk of Agency Proceedings, unsigned copies of the requests for formal hearing in Project Nos. 97770-3305 and 97770-3306 addressed to the Clerk of Agency Proceedings, as well as copies of the request for time extension for Project Nos. 97770-3305 and 97770-3306 and appendices.

    
    

22. The documents were received by J. Lairscey on Monday, August 16, 1993, and were filed away until they were inspected on August 27, 1993, as a result of an inquiry by Ava Parker, a Department attorney.

    
    

23. Sometime before August 27, 1993, Ava Parker, as a result of an inquiry from Gary Geddes, the Department's Program Manager, began to investigate whether White had filed its requests for hearing. Ms. Parker first checked with the Clerk of Agency Proceedings and was informed that nothing had been filed at that location.

    
    

24. Ms. Parker then contacted Charles Peterson, the Department's Area Construction Engineer, to discern whether White had filed a request for hearing. Mr. Peterson searched his files and the Department's central files; he questioned various people in the Department's Tallahassee office and telephoned Ray Daniel in the Department's Casselberry office.

    
    

25. Ray Daniel told Mr. Peterson that he had no knowledge concerning White's requests for hearing and no idea where they were. Mr. Daniel in fact knew at that time that White had delivered its requests for hearings to both Resident Engineers on August 13, based upon previous conversations with the Department's Resident Engineers and office staff.

    
    

26. Mr. Peterson later discovered from Jimmy Lairscey that Mr. Lairscey had received the requests for hearing but they had been filed away.

27. On Friday, August 27, 1993, Joe Lawrence, counsel for White, telephoned Ava Parker to discuss consolidation of the hearings and discovery. Ms. Parker advised White's counsel that no requests for hearing had been filed with the Clerk in response to the two Notices of Intent.

    
    

28. Ms. Parker knew prior to her conversation with counsel for White that the requests had not been filed with the Clerk of Agency Proceedings, yet made no attempt to contact White or its counsel to notify them that the Clerk had not received the request.

    
    

29. On Monday, August 30, 1993, copies of the requests for hearing were delivered to the Department's Tallahassee offices from counsel for White, via Federal Express addressed to Ava Parker and Clerk of Agency Proceedings, Florida Department of Transportation, 605 Suwanee Street, MS 58, Haydon Burns Building, Tallahassee, FL 32399-0450. The documents were received by Ms. Parker who delivered the requests for hearing to the Clerk and they were stamped in by the Clerk of Agency Proceedings on that same date.

    
    

30. The Clerk of Agency Proceedings' function is to docket and maintain a record of documents and to send a copy of any requests for hearing in contractor suspension cases to the legal section and to Jimmy Lairscey.

    
    

31. The Department's standard procedure after receipt of requests for hearing and contract time extension is to have the documents reviewed by Jimmy Lairscey and the Project Resident Engineer to determine whether the time extension should be granted. The legal section then determines whether to send the matter to the Division of Administrative Hearings. The Department's purpose in soliciting a request for contract time extension in conjunction with its Notice of Intent to Suspend is to afford the contractor the opportunity to cure the delinquency. The Department, prior to taking action on the request for hearing, reviews the time extension request to determine whether it may obviate the need for further delinquency proceedings. The Department's Resident Engineers are primarily responsible for evaluating and making recommendations concerning time extension requests. It is generally after the Department makes a determination concerning the appropriateness of the request for contract time that it proceeds to act upon the request for hearing.

    
    

32. The Department did not deny White's request for contract time extension until August 30, 1993, the same date that White's requests for hearing were docketed in by the Clerk. The Department's review, analysis and decision can take up to five months. The delay in docketing the requests for hearing did not, therefore, delay the process.

    
    

33. There was no prejudice to the Department by White's delivery of its requests for hearing to the Department's Resident Engineers on August 13, 1993, rather than to the Clerk of Agency Proceedings. There was no harm to the Department by Jimmy Lairscey's receipt of White's requests for hearing on Monday August 16, 1993, rather than the Clerk receiving it on Friday, August 13, 1993.

    
    

34. The Department was aware, prior to and on August 13, 1993, that White disputed the Department's determination of delinquency on State Project Nos. 97770-3305 and 97770-3306. The Department expected White to file requests for formal hearing challenging the Department's determination of delinquency on State Project No. 97770-3305 and 97770-3306. White had verbally notified the Department prior to August 13 that it was challenging the delinquency notices.

35. No evidence established any prejudice or harm to the Department from the Clerk's receipt of White's requests for hearing on August 30, 1993 rather than August 13, 1993.

    
    

36. White will be severely prejudiced if not afforded a hearing, and therefore automatically declared delinquent, because it will be precluded from bidding and acquiring much needed additional work. White's work is primarily for the Department, in all phases of highway construction. At the time of hearing White had Department contracts of approximately $100 million, which contracts carry over a several year period, and it employed approximately 500 people.

    
    

37. No culpability or blame can be ascribed to either party in the series of gaffes surrounding the filing of White's requests for hearing. Mr. Keen, a novice to the process, thought he was doing the right thing by assuring timely filing with the Resident Engineers, who had always received other correspondence related to the Project. Mr. Daniel, who was immediately informed that the original documents were filed in the wrong place, did nothing to correct the error, but neither did he deliberately frustrate the process (as argued by White) since the message he received about some original legal documents was ambiguous. Mr. Lairscey had no idea that his packet was intended for the Agency Clerk; moreover, he had no idea who the agency clerk was. Under these circumstances, and in the absence of any more than mere inconvenience to the Department, it is patently unfair to deny White its hearing on the merits.

    
    

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to section 120.57, F.S.

    
    

39. Petitioner, Department of Transportation, bears the burden of proof in this matter to clearly demonstrate that White Construction waived its appellate rights. See, Henry v. State Department of Administration, Division of Retirement, 431 So.2d 677, 680 (Fla. 1st DCA 1983) ("Waiver is not a concept favored in the law, and must be clearly demonstrated by the agency claiming the benefit"); State Department of Environmental Regulation v. Puckett Oil, 577 So.2d 988 (Fla. 1st DCA 1991); Giordano v. Department of Banking and Finance,

    596 So.2d 712 (Fla. 1st DCA 1992). The outcome of this case, however, is not determined by ascribing the burden of proof to Petitioner rather than Respondent.

    
    

40. Rule 14-23.013, F.A.C. which provides that a request for hearing shall be filed with the Department by delivery to the Clerk of Agency Proceedings within (10) days of receipt of a notice of intent to suspend, is not jurisdictional. See, Machules v. Department of Administration, 523 So.2d 1132 (Fla. 1988), where the Court held that such appeal periods "[are] not jurisdictional in the sense that failure to comply is an absolute bar to appeal but [are] more analogous to statute of limitations which are subject to considerations such as tolling." Id. at 1133, n. 2; see also, Castillo v. Department of Administration, Division of Retirement, 593 So.2d 1116, 1117 (Fla. 2d DCA 1992) where the court stated that "the filing of such a notice is not jurisdictional".

    
    

41. Administrative rules are "designed simply to further the orderly conduct of business, and should be construed as directory only." Hamilton County Board of County Commissioners v. State Department of Environmental Regulation, 587 So.2d 1378, 1390 (Fla. 1st DCA 1991). The court in that case

    agreed with the county that it should have an opportunity to file affidavits and other supporting evidence to demonstrate inadvertence, mistake, or excusable neglect.

    
    

42. Section 337.16, F.S. provides that the Department must notify the contractor in writing of its intent to discipline its qualification to bid and of the procedure for requesting a hearing. The request must be made within 10 days after receipt of the notice. Respondent, White Construction Company, Inc., timely filed its requests for hearing with the Department when it hand-delivered its requests for hearing to the Resident Engineers on August 13, 1993. The Resident Engineers are the main liaison between White and the Department for the Project, and standard Project operating procedure as established by the Department requires that all correspondence from White be sent to through the Department's Resident Engineers.

    
    

43. The administrative rules' designation of the Clerk of Agency Proceedings as the filing location is not a jurisdictional prerequisite to a hearing on the merits. Section 120.57(1)(b)3., F.S. provides that a request for formal hearing must be filed with the agency.

    
    

44. Even if filing was not in the proper location, the doctrine of equitable tolling applies to entitle White to pursue its administrative remedies.

    
    

    The tolling doctrine is used in the interests of justice to accommodate both a defendant's right not to be called upon to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing. Equitable tolling is a type of equitable modification which "'focuses on the plaintiff's excusable ignorance of the limitations period and on [the] lack of prejudice to the defendant.'" Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir. 1987) (quoting Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.

    1981)). Contrary to the analysis of the majority below, equitable tolling, unlike estoppel, does not require active deception or employer misconduct, but focuses rather

    on the [individual] with a reasonably prudent regard for his rights.

    
    

    Machules, 523 So.2d at 1134 (emphasis added.)

    
    

45. Principles of equity entitle White Construction to be relieved from the ill affects resulting from its unfamiliarity of the necessity of delivery to the Clerk of Agency Proceedings rather than the Department's Resident Engineers, since the Resident Engineers were the main project liaison and White was not alone in its lack of knowledge of who the Clerk was.

    
    

46. Furthermore, in light of the complete absence of any showing of prejudice to the Department, reasonably prudent regard to White's rights requires that the doctrine of equitable tolling be applied, and that White be allowed to pursue its appeal of the Department's delinquency determination. See, Stewart v. Department of Corrections, 561 So.2d 15 (Fla. 4th DCA 1990)

    (equitable tolling applied where appellant filed one day late without prejudice to the agency); General Motors Corp. v. Gus Machado Buick-GMC, Inc., 581 So.2d 637, 638 (Fla. 1st DCA 1991) ("The appellate courts have not viewed favorable arguments that short delays in requesting a hearing should result in a forfeiture of substantive rights").

    
    

47. White did not delay in filing its petition for a "protracted length of time", and "in the absence of any demonstration of prejudice" to the Department, equity tolls the limitations period so as not to work unfair hardship upon White. Puckett Oil Company, Inc., 577 So.2d at 993-4.

    
    

48. The Department argues that literal compliance with a non- jurisdictional rule is a threshold requirement for White's right to pursue its administrative remedies. The Department argues, that literal compliance is necessary so that the delinquency proceedings can proceed expeditiously in accordance with section 337.16(1) of the F.S. This section establishes no more than the time frame for a request for hearing, which time frame was met.

    
    

49. The Department also argues that this case is one merely of attorney error to which the doctrine of equitable tolling does not apply, relying on Environmental Resource Associates of Florida, Inc. v. State Department of General Services, 624 So.2d 330 (Fla. 1st DCA 1993). That decision, however, rests solely on the failure of a party's attorney to meet a filing deadline, and is thus not applicable to the facts of this matter where White timely delivered its request for hearing, but mistakenly to the wrong Department representative. Regardless, the Department knew that White disputed the determination of delinquency, and therefore, equitable tolling is applicable. See Abusalameh v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 627 So.2d 560, 561 (Fla. 4th DCA 1993) ("Even if Appellant's counsel is at fault

    . . ., the department nevertheless was on notice that Appellant was pursuing his rights . . .").

    
    

50. In summary, it is uncontroverted that the agency provided the requisite notice to the contractor regarding its appeal rights. The contractor fully intended to exercise those rights, and did so, albeit under the mistaken impression that it was the notice to the Resident Engineers that was material, not the notice to the agency clerk. Failure to file with the agency clerk was entirely the result of excusable neglect and mistake. The substantial prejudice to the contractor, when weighed against the administrative inconvenience to the agency, results in a conclusion that the contractor is entitled to a hearing on the merits.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED that the Department enter its final order granting a formal hearing to White Construction Co., Inc. on the substantive issue of whether it should lose its qualification to bid.

DONE AND ENTERED this 29th day of August, 1994, in Tallahassee, Leon County, Florida.

MARY CLARK

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 29th day of August, 1994.

APPENDIX

The following constitutes specific rulings on the findings of fact proposed by the parties.

Petitioner's Proposed Findings

1. Adopted in paragraph 1.

2. - 4. Adopted in substance in paragraph 2; otherwise rejected as unnecessary and immaterial.

1. Adopted in part in paragraph 10; otherwise rejected as unnecessary.

2. Adopted in substance in paragraph 4.

3. Adopted in paragraph 30.

4. Adopted in paragraph 4.

5. Except as to the conclusion that the notice was not filed with the clerk on August 13, rejected as contrary to the greater weight of evidence, considering the testimony of Keen in its entirety.

6. Adopted in substance in paragraphs 5, 8, 9, 10 and 12.

7. Rejected as argument and conjective unsupported by the weight of evidence.

8. Adopted in substance in paragraph 5.

9. Adopted in part in paragraphs 6-9, otherwise rejected as immaterial.

10. Adopted in part in paragraph 9; otherwise rejected as statement of testimony or unnecessary.

11. Adopted in substance in paragraph 13.

16.-18. Adopted in paragraphs 14 and 19; otherwise rejected as unnecessary.

1. Adopted in paragraph 21.

2. Adopted in substance in paragraph 22.

3. Adopted in substance in paragraph 16; otherwise rejected as unnecessary.

4. Adopted in substance in paragraph 18.

5. Adopted in substance in paragraph 20.

6. Adopted in part in paragraphs 23-26; otherwise rejected as unnecessary.

7. Adopted in substance in paragraphs 27 and 29.

8. Rejected as contrary to the weight of evidence.

27.-28. Adopted in part in paragraph 36; otherwise rejected as argument or unnecessary. White clearly proved it will be severely prejudiced, even if it is not "put out of business".

29. Rejected as contrary to the weight of evidence (as to prejudice to the agency).

30.-31. Rejected as unnecessary.

32. Rejected as contrary to the weight of evidence; more commonly, the agency rules on the extension request first.

Respondent's Proposed Findings

1. Adopted in paragraph 1.

2. Adopted in paragraph 2.

3. Adopted in paragraph 3.

4. Adopted in paragraph 4.

5. Adopted in paragraph 5.

6. Adopted in paragraph 6.

7. Adopted in paragraph 7.

8. Adopted in paragraph 8.

9. Adopted in paragraph 9.

10. Adopted in paragraph 10.

11. Adopted in paragraph 11.

12. Adopted in paragraph 12.

13. Adopted in paragraph 13.

14. Adopted in paragraph 14.

15. Adopted in paragraph 15.

16. Adopted in paragraph 16.

17. Adopted in substance in paragraph 17.

18. Rejected as unnecessary.

1. Rejected as unnecessary.

2. Adopted in paragraph 29.

3. Adopted in part in paragraph 30; otherwise rejected as contrary to the weight of evidence (as to being a "paper shuffler").

34.-38. Adopted in paragraph 31.

39.-40. Adopted in paragraph 32.

41.-42. Adopted in paragraph 33.

1. Adopted in paragraph 34.

2. Adopted in paragraph 35.

1. Adopted in paragraph 36, except that the implication that the company will absolutely go out of business is rejected as unsupported by the evidence.

2. Rejected as unnecessary.

COPIES FURNISHED:

Paul Sexton, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwanee Street

Tallahassee, Florida 32399-0458

Joseph W. Lawrence, II, Esquire Cummings, Lawrence and Vezina, P.A. 1600 S.E. 17th Street, Suite 304 Fort Lauderdale, Florida 33316

Ben G. Watts, Secretary

Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building

605 Suwanee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building 605 Suwanee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-005714

Orders for Case No: 93-005714