STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER TSOKOS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-8027BID

) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on January 3-4, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: James W. Anderson, Esquire

LEWIS & McKENNA

820 East Park Avenue, Suite 204 Post Office Box 10475 Tallahassee, Florida 32302

For Respondent: Enoch J Whitney, General Counsel

Judson Chapman, Asst. Gen. Counsel Department of Highway Safety

and Motor Vehicles

A432 Neil Kirkman Building Tallahassee, Florida 32399-0500

STATEMENT OF THE ISSUES

Whether the intended award of the lease to Rouse and Associates should be set aside due to the competitive advantages obtained by this bidder prior to the submission of sealed proposals.

Whether the consensus decision making approach used by the committee caused an unfair result when the evaluation criteria was reviewed.

Whether the responses to the request for bid proposals in RFP No. 045-91 were arbitrarily evaluated by the review committee charged with the responsibility to make the evaluation on behalf of the user agency.

Whether the Petitioner, Peter Tsokos, was the lowest responsive bidder who should be granted the award.

Whether the current Notice of Intended Award should be approved.

PRELIMINARY STATEMENT

On November 26, 1990, the Petitioner, Peter Tsokos (Tsokos) timely filed a Notice of Protest and a Formal Written Bid Protest regarding the intended award of a real property lease to Rouse and Associates (Rouse) in Hillsborough County by the Department of Highway Safety and Motor Vehicles (the Department). The protest was referred to the Division of Administrative Hearings on December 19, 1990, and was assigned to a hearing officer the next day. The hearing was scheduled and held within the expedited time frame required by Section 120.53, Florida Statutes.

Prior to the taking of evidence, the hearing officer inquired about the agency's compliance with Rule 22I-6.006, Florida Administrative Code. This rule, which was promulgated by the Division of Administrative Hearings, requires the agency to provide a copy of the formal protest to all bidders at or before the time the matter is referred to the Division together with notification of the proceeding and the opportunity to be joined as a party of record, if warranted.

In response to this inquiry, counsel for the Department advised that Rouse, the apparent low bidder, had been verbally notified and declined to intervene.

Connie Donlon (Donlon), the remaining bidder who had standing to intervene, was contacted by telephone. This bidder waived the opportunity to intervene, and the parties went forward with their presentations. There were no other bidders who had standing to intervene.

At hearing, the Petitioner called three witnesses and testified in his own behalf. Eleven exhibits were submitted. The Respondent presented five witnesses and twelve exhibits were offered. All of the exhibits were admitted into evidence.

A transcript of the hearing was not ordered. Proposed recommended orders were timely filed by both parties on January 14, 1991. Rulings on the proposed findings are in the Appendix of the Recommended Order.

FINDINGS OF FACT

1. Background

   
   

   1. In September 1990, the Department released its Request for Proposals (RFP) for a lease of over 5,900 square feet of office space for regional offices in Hillsborough County, Florida. This bid or RFP is known as RFP No. 045-91 for Lease Number 760:0286.

      
      

   2. The RFP was prepared on Form BPM 4136, a solicitation format prepared by the Department of General Services for use by all state agencies seeking full service leases.

      
      

   3. Within the general provisions of the RFP, potential bidders were advised that any questions concerning the specifications (except for electrical matters) should be directed to Kelvin Robinson, whose telephone number was listed behind his name. Any changes to the specifications were to be in writing, from the Bureau of General Services. All other, unilateral changes by bidders were void. In addition, the RFP explained that a bidder's preproposal conference would be held at 10:00 a.m. on September 14, 1990, in Room A436, Neil Kirkman Building, Tallahassee, Florida to answer questions prior to the submission of sealed bids on October 9, 1990.

   4. No telephone calls were received by Mr. Robinson regarding the bid specifications. No written changes were made to the specifications by the Bureau of General Services, and no one attended the preproposal conference.

      
      

   5. On October 9, 1990, timely proposals in response to RFP NO. 045-91 were received from the following bidders: Rouse, Tsokos, Donlon, Hidden River Corporate Park (Hidden River), and Theo Realty Investments (Theo). The bids were opened on this date.

      
      

   6. During the bid opening, the submission of Hidden River was declared unresponsive because the price quote was not a firm one, as required by the specifications. This left four bid proposals to be reviewed by the Department as the user agency.

      
      

   7. Shortly thereafter, a committee consisting of the construction projects administrator and a representative from each of the three bureaus that will occupy the planned regional offices, was appointed to decide the lowest and best bid. Arrangements were made for the committee to review proposals and inspect each facility on October 23, 1990.

      
      

   8. It became apparent during the planning of the physical inspections of the existing buildings that the proposal submitted by Theo was five blocks south of the boundaries set for location of the regional offices, as depicted in Attachment B of the RFP. This resulted in a determination that the bid was nonresponsive. Three proposals remained for review purposes.

      
      

   9. Prior to the visit to the first site, the other committee members were informed by the construction projects administrator that they were to share individual observations or impressions with each other during the committee evaluations later that day.

      
      

   10. There was one unusual occurrence during the inspection process. At the Tsokos facility one committee member remained outside the building by the car. She did not inspect the premises. Attempts by gentlemen with Tsokos to show her around the facility were rebuffed.

       
       

2. Evaluation

   
   

   1. After physically inspecting each proposed facility, the committee reviewed the bid proposals and jointly developed a committee determination of the lowest and best bid. The eleven award factors set forth in the evaluation criteria published in the bid documents were used to make the decision.

      
      

   2. When the proposals were reviewed, none of the committee members noticed that Rouse had limited the availability of sixty exclusive off-site parking spaces to once a month in its bid proposal. The original RFP issued by the agency did not include such a limitation.

      
      

   3. When the award factors were totalled, the Rouse proposal had an overall score of ninety-five from an available total of one hundred points. This was the highest sore awarded, which caused the committee to recommend this proposal to the agency as the lowest and best bid.

   4. Petitioner Tsokos, the low bidder, challenges the intended award of the lease to Rouse based upon the consensus decision-making approach used to evaluate the proposals, and the scoring differential between Rouse and Tsokos on factors 2,4,5,7, 8,9 and 11 of the evaluation criteria. Tsokos received a total score of eighty-eight.

      
      

3. Consensus Decision-making Approach

   
   

   1. The consensus decision-making approach used in the evaluation of these bid proposals does not conform to the procedures set forth in the Real Property Lease Manual promulgated by the Department of General, Services for use by state agencies during such an evaluation process.

      
      

   2. The lease manual is an advisory document which can be accepted or rejected by any user agency that is reviewing a lease proposal.

      
      

   3. The Department of Highway Safety and Motor Vehicles has been using the consensus decision-making approach in its evaluation of bids and bid proposals since it was recommended in July 1989 by Dwight Davis, Ph. D., an agency employee whose doctoral dissertation was on small group decision making.

      
      

   4. This approach has withstood a previous challenge during a bid protest proceeding.

      
      

   5. The construction project administrator has been consistently instructing committee members to use this approach to evaluate leases since January 26, 1990.

      
      

   6. The methodology was uniformly applied to each proposal during the evaluation which is the subject of this proceeding.

      
      

   7. Petitioner Tsokos contends that the committee member who chose not to inspect his facility did not want to relocate the new regional offices at this particular site. It is further hypothesized that the lower score awarded to Tsokos, in spite of his low bid, was the result of this committee member's bias. Petitioner's father, an expert in statistical analysis, opined that the consensus decision-making approach allowed all of the other members to discount the point award to Tsokos in deference to this one member. It was suggested that this deference occurred because the member was the only one from Tampa in addition to being the sole member who would be using the space. It was propounded that if the members had individually evaluated the proposals in writing before the final reckoning, as suggested in the Department of General Services' manual, this individual's bias would have been reduced, and the award would have been given to Tsokos.

      
      

   8. During the committee's evaluation of the eleven factors, each member was given the opportunity to announce the number he or she would individually award the bidder if the decisions were solely his or hers to make. If some members announced a number lower than others, the group would always record the highest number. Members who testified at hearing felt free to voice their own opinions during the deliberations.

      
      

   9. The process used by the committee would have reduced any bias in the scoring caused by the one member presumed to be biased by Petitioner Tsokos. The alleged bias was not established at hearing.

4. Scoring Differentials

   
   

   1. The first criterion reviewed by the committee was the price of the rental. The present value methodology required by Rule 13M-1.029, Florida Administrative Code, was used.

      
      

   2. As Tsokos had submitted the lowest priced proposal, he received the full weight of 15 points that the user agency had decided to give this factor. Rouse received 13 of the 15 possible points. The point allocations were purely mathematical, and have not been contested in this proceeding.

      
      

   3. The second criterion addressed the conformance of the space offered to an efficient layout and space utilization. Pursuant to Rule 13M-1.015(3), the specifications were to be drawn in general terms to provide knowledge of the, agency's space requirements. They were not to be structured to favor any specific location or lessor.

      
      

   4. Under the space requirement criteria set forth in the specifications and Attachment H, it was apparent that the user agency wanted its floor plan to include the following:

      
      

      1. One reception area for all three bureaus.

      2. One large conference room and one large training room located in a manner that would not interfere with the work being done in any one particular bureau area.

      3. Separate areas for each bureau designed to allow public access without having to pass through areas where different bureau work was being conducted.

      
      

   5. In its response to the specifications, Rouse utilized the rough draft of a floor plan as forth in Attachment H. The shape of the existing building offered by Rouse was able to accept the proposed floor plan without any changes or modifications. As a result, Rouse and the other proposals that utilized the proposed floor plan, received the full 15 points allotted to this factor.

      
      

   6. The configuration of the existing building offered by Tsokos did not permit him to use the floor plan proposed by the agency. Instead, two alternative floor plans were submitted for consideration, as allowed within the specifications

      
      

   7. The first alternative was designed so that all members of the public seeking services from the Bureau of Mobile Home and Recreational Vehicle Construction and the Bureau of Emissions Control were required to pass through the open clerical area of the Bureau of Licenses and Enforcement to reach their destinations. The large conference room was also placed in back of the Bureau of Licenses and Enforcement. Use of the conference room by any of the three bureaus would require movement through the same open clerical area. To access the training room, a transgression of the boundaries of two bureaus would occur.

      
      

   8. The second alternative placed the clerical workers for two bureaus in the same common area. In order to reach the Mobile Homes and Recreational Vehicle Construction Bureau, the public had to walk through this large area. The training room, which was designed to contain a large number of people, required those using the room to move through all three bureaus.

   9. The committee members, who were familiar with the type of work to be done in the proposed space, determined that the alternatives proposed by Tsokos were inferior to the floor plan proposed by the user agency in the specifications due to the disruptive nature of the traffic pattern through bureau boundaries, and the lack of bureau boundaries at some locations. The deduction of three points due to the lack of efficiency and space utilization in the suggested floor plans was reasonable. The point allotment was based upon the polling of individual members regarding his or her point analysis. The highest number the members of the committee agreed to award was placed in writing on the synopsis sheet.

      
      

   10. All of the bid proposals were given the same evaluation as to criterion three. The full allotment of twenty points to all proposals was not contested at hearing.

       
       

   11. Criterion four addresses the effect of environmental factors, including physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of operations planned for the space.

       
       

   12. Members of the committee who testified at hearing gave Rouse the full fifteen points for this criterion because they liked the planned entrance to the offices, which was prominently located. In addition, the site inspection revealed that the sixty additional off-site parking spaces were in the same paved parking lot approximately five hundred feet from the facility.

       
       

   13. The Tsokos proposal was downgraded in this category because the planned entrance to the facility was on the side of the building. The entrance could not be seen from either of the roadways or most of the designated parking area. The down slope of the entrance below the street level was also a detractor due to traffic safety and concerns about flooding. The physical inspection revealed that only forty-eight to sixty-one parking spaces were available for use by the agency on this site. Three points were deducted by the committee based upon these detractors.

       
       

   14. At hearing, the Petitioner attempted to refute the analysis of the parking space shortage with a proposed site plan that showed eighty-eight parking spaces. While this plan shows that Petitioner Tsokos' proposal statement that eighty-one spaces were available for agency use was made in good faith, its probative value for a comparative review was effectively refuted by the Department at hearing. The mixing of angular, perpendicular, and parallel parking spaces in the parking area for the two buildings at the Tsokos location is unworkable, as indicated by the committee in its evaluation. The award of twelve of fifteen points to Tsokos for criterion four by the committee was reasonable and has been supported by competent, credible evidence.

       
       

   15. The committee's determination that one point should be removed from the Tsokos score for criterion five misconstrued the meaning of "street-level space" as set forth in the specifications. The fact that the property sloped down from the road and was below the adjacent roads was already addressed in criterion four. The proposal should not be penalized twice for this condition. The facility offered by Tsokos was clearly only one story in height, and should receive the same five point allotment awarded to all one story buildings offered in response to this RFP.

   16. Criterion six deals with the frequency and availability of satisfactory public transportation within one block of a facility. The full allotment of five points to all of the responsive proposals was not contested at hearing.

       
       

   17. Petitioner Tsokos was awarded five out of five points for criterion seven due to the proximity of the building to dining facilities. Rouse was downgraded two points in this category. The reason for the downgrade was that while restaurants were located within a convenient driving radius to the Rouse facility, there were no restaurants within two blocks as required by the evaluation criteria. The closest restaurant readily observed by the committee members was CDB Restaurant, which is approximately nine tenths of a mile away.

       
       

   18. Dining facilities at the university were not contemplated when the assessment was made. There was no consideration given to university eateries posthearing because public access on the campus is limited by the use of visitor passes, limited parking, and the fact that the dining facilities were designed to accommodate and service university needs as opposed to the needs of the general public

       
       

   19. The committee's decision to give Rouse only sixty per cent of the available points for proximity to dining facilities was reasonable because the purpose behind the criterion was to allow clients and personnel convenient access to restaurants. While these people cannot walk to surrounding restaurants as contemplated by the evaluation criteria, they can still dine quickly and conveniently in the locale.

       
       

   20. Criterion eight deals with the proximity of the site to the clients being served. Rouse was given all five points in the assessment of this factor while Tsokos was given only three points. Committee members who testified at hearing chose to award three points to Tsokos for proximity to clients because it was believed that staff would have difficulty giving directions to those clients who were unfamiliar with the area. It was also believed that the facility was not easily accessed from the major highways.

       
       

   21. The reasons given for the lower point assessment of the Tsokos proposal for criterion eight were arbitrary and irrational. Pursuant to the proposal specifications, these regional offices could be anywhere within the boundaries of the location corridor depicted in Attachment B of the RFP. The Tsokos proposal was within the corridor, and the evidence presented at hearing demonstrates that it is just as easy to give telephone directions to the Tsokos location as it would be to describe the Rouse or Donlon locations. In addition, the site is just as accessible as the Rouse facility or the Donlon facility from the major roads. Accordingly, the full five points available for this criterion should be awarded to Petitioner, as they were to the other two proposals within the location corridor

       
       

   22. The next item evaluated in criterion nine was the proximity of the site to other Department activities, as well as other public services. The Rouse location was given the full award on this item because a new Florida Highway Patrol facility is being built directly behind the Rouse location. The committee members gave this the highest rating because the Florida Highway Patrol is in the same Department. It was reasoned that members of the public who have business with one branch of the Department will often have business with another branch.

   23. Additional weight was given to the Rouse location because the University of South Florida is directly across the street.

       
       

   24. The Tsokos location was near the Central Regional Operations Bureau Office of the Florida Department of Law Enforcement. Proximity to this public service was not given weight because the committee was aware that the agency was moving to a new location within a short period of time.

       
       

   25. The Tsokos facility is near the City Hall and Police Department for the City of Temple Terrace. Two of the available five points were given to the Tsokos proposal because of this proximity. The committee was justified in this low point allocation because these regional offices will serve clients from seven counties. A significant number of the Department's clients will not need the city services near the Tsokos location.

       
       

   26. All of the bid proposals were given the same evaluation as to criterion ten. The full allotment of five points was not contested at hearing.

       
       

   27. Criterion eleven relates to the option period-rental rate proposed within projected budgetary restraints. The point allocations were purely mathematical. Evidence contesting the point allotment was not presented in this proceeding.

       
       

5. Final Tabulation of Award Factors and Comparison

1. Based upon the evidence presented at hearing, the score of ninety-five awarded to Rouse is supported by the greater weight of the evidence. The original score of eighty-eight to Tsokos was improper for items five and eight of the evaluation criteria. This score should be revised to show an award of ninety-one points to Tsokos.

   
   

2. Based upon the revised scoring, the Rouse proposal still received the highest number of total points under the weighted evaluation criteria and was properly selected as the lowest and best bid by the committee.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.53 and 120.57(1), Florida Statutes.

   
   

4. The bid protest which is the subject of these proceedings involves an RFP for office space measuring over 2,000 square feet in a privately owned building. All leases of such size between state agencies and private entities are governed by Chapter 255, Florida Statutes, and Chapter 13M-1, Florida Administrative Code. They must be procured through the competitive bidding process, and the awards must be made to the "lowest and best" bidders. Section 255.249(2)(b), Florida Statutes; Rule 13M-1.015(1), Florida Administrative Code. As the low bidder affected by the Department's choice of a different least proposal, Petitioner Tsokos has the burden to establish that the Department's intended award of the lease to Rouse is improper. J.W.C. Co., Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).

5. Whether the intended award of the lease should be set aside due to competitive advantages obtained by Rouse prior to the submission of sealed proposals is the first issue addressed. Petitioner Tsokos contends that competitive advantages to Rouse occurred in the following areas: Pricing and floor plan design.

   
   

6. The pricing advantage allegedly occurred when Rouse learned the additional parking spaces required by the Department in the specifications were to used only one day a month. None of the other bidders were given this information, and it is unknown how it was acquired by Rouse.

   
   

7. This superior knowledge purportedly gave Rouse a competitive advantage because the entity could charge less for its overall lease package than it would have charged for the daily use of the additional parking spaces. Others bidders were unaware of the Department's plan to use the spaces infrequently. They were unable to use this information to reduce their bids accordingly.

   
   

8. It follows that if Rouse charged less because of the limitations on parking space use, the point allotments to Rouse on items one and ten were unfairly increased. The competitive advantage would have occurred when the evaluation factors were totalled and compared with the other proposals. In spite of the logic of this analysis, there was no evidence presented to show that the use limitation on parking spaces had an effect upon the price submitted by Rouse. Without proof of this essential element, Tsokos has not shown that Rouse was accorded a palpable economic advantage over the other bidders. Therefore, the intended award cannot be set aside on that basis. System Development v. Department of Health and Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA 1982).

   
   

9. Facts adduced at hearing affirmatively demonstrate that a competitive advantage did not occur because the Rouse facility could accommodate the floor plan suggested by the Department in the specifications. The committee reviewed the alternative plans submitted by Tsokos and found them lacking. These clans did not meet the agency's needs. The lower point allotment to Tsokos on criterion two was based on the perceived inadequacies of his floor plan designs. It was unrelated to the use of the agency suggested floor plan by Rouse. As a result, both of Petitioner's arguments regarding competitive advantages are rejected.

   
   

10. The second issue is whether the consensus decision making approach used by the agency caused an unfair result when the evaluation criteria was used.

    
    

11. According to the testimony of a committees member, each member stated his or her individual opinion verbally before a committee decision was reached. The highest number voiced was the one placed in writing on the synopsis form upon which findings for each proposal were placed pursuant to Rule 13M-1.015(5), Florida Administrative Code. As the highest number was to each bidder's advantage, no bidder was negatively impacted by this consensus decision-making approach.

    
    

12. The consensus decision-making methodology used by the committee and required by the Department recently withstood challenge in United Technologies Corporation v. State of Florida, Department of Highway Safety and Motor Vehicles, DOAH No. 89-5059B1D, (Final Order 1-9-90). While the hearing officer agrees that the evaluation process suggested by the Department of General Services and recommended by Petitioner's father would clearly document whether

    prejudice occurred in the evaluation process, the agency has not abused its discretion nor adversely affected any bidder with the scoring procedure used on this proposal. No unfair result was established by Petitioner. Therefore, the second issue is also resolved in the Department's favor.

    
    

13. The third issue is whether the responses to the RFP were arbitrarily evaluated by the user agency.

    
    

14. A de novo review of the evaluation criteria demonstrates that some point assessments made by the committee were arbitrary or irrational. Adjustments to points have been recommended where improper assessments occurred.

    
    

15. When the points are adjusted to reflect the results of the evidence presented at hearing, Rouse still receives the highest score on the evaluation criteria. It is concluded that while the committee made minor mistakes during the review of the proposals, the ultimate result remains the same. Rouse offered the Department the lowest and best bid. This result will not be set aside. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1979); United Technologies Corporation, supra.

    
    

16. The resolution of the third issue determines the outcome of the final two matters before the Division of Administrative Hearings. Tsokos was not the lowest responsive bidder, and the intended award of the lease to Rouse should be approved.

    
    

17. The protest by Tsokos in these proceedings was not frivolous. In some respects, the Tsokos proposal was not fairly evaluated. This mistreatment, coupled with the perceived snub from one committee member during the site inspection and the subsequent knowledge that the intended awardee had additional information not placed in the specifications, required an independent review of the RFP and the evaluation process. A bid protest was necessary to assure that Tsokos was treated fairly in this case. Accordingly, attorneys fees and costs should not be awarded to any prevailing party in this

RECOMMENDATION

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

That the Tsokos protest in RFP NO. 045-91 be denied due to insufficient evidence, and that the lease be awarded to Rouse as the lowest and best bidder.

DONE and ENTERED this 4th day of 1991, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 4th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-8027BID

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted that the specifications were altered. See HO #12. Reject conclusion.

2. Rejected. Speculative.

3. Rejected. Speculative.

4. Rejected. Insufficient proof.

5. Accepted. See HO #15.

6. Rejected. Contrary to fact. See HO #16.

7. No finding seven listed.

8. Rejected. Contrary to fact. See HO #23.

9. Rejected. Contrary to fact. See HO~#23.

10. Rejected. Speculative.

11. Rejected. Contrary to fact. Improper shift of burden of proof.

12. Accepted. See HO #36.

13. Accepted. See HO #36.

14. Accepted.

15. Accepted. See HO #37.

16. Rejected. Speculative.

17. Rejected. Improper conclusion.

18. Rejected. Irrelevant.

19. Rejected. Contrary to fact. See HO #37.

20. Rejected. Uncorroborated hearsay.

21. Rejected. Uncorroborated hearsay.

22. Rejected. Uncorroborated hearsay.

23. Rejected. Uncorroborated hearsay.

24. Rejected. Assumes facts not in evidence.

25. Rejected. Argumentative and based on rejected legal conclusion.

26. Accepted. See HO #40 - #41.

27. Accepted. See HO #42.

28. Rejected. Irrelevant.

29. Accepted.

30. Rejected. Contrary to fact. See HO #45 - #48.

31. Accepted. See HO #48.

32. Accepted. See HO #44.

33. Accepted. See HO #44.

34. Rejected. Irrelevant.

35. Accepted. See HO #44.

36. Rejected. Speculative.

37. Accepted.

38. Rejected. Irrelevant.

39. Accepted.

40. Accepted.

41. Accepted.

42. Rejected. Contrary to fact. See HO #26 - #32.

43. Accepted.

44. Rejected. Contrary to accepted evidence.

45. Rejected. Irrelevant.

46. Accepted.

47. Rejected. Contrary to fact. See HO #32 and #36.

48. Accepted.

49. Accepted.

50. Accepted. See HO #38.

51. Accepted.

52. Accepted.

53. Accepted as to Tsokos. See HO #51.

54. Rejected. Contrary to fact. See HO #32, #36 and #51.

55. Accepted. See HO #38.

56. Rejected. Speculative.

57. Rejected. Contrary to fact. See HO #43 - #44.

58. Rejected. Contrary to fact. See HO #45 - #48.

59. Rejected. Contrary to fact. See HO #58.

60. Rejected. Contrary to fact. See HO #52.

Respondent's proposed findings of fact are addressed as follows:

1. Rejected. Improper summary.

2. Accepted. See HO #7.

3. Rejected. Cumulative.

4. Accepted. See HO #13.

5. Accepted. See HO #8.

6. Accepted. See HO #26 and #28.

7. Accepted. See HO #32.

8. Accepted. See HO #36.

9. Accepted except for the bathroom relocation issue which is irrelevant. See HO #28.

10. Accepted. See HO #34.

11. Accepted.

12. Accepted, except for the last sentence. Speculative.

13. Rejected. Irrelevant.

14. Rejected. Irrelevant.

15. Rejected. Irrelevant.

16. Accepted. See HO #37.

17. Accepted. See HO #35.

18. Rejected. Speculative.

19. Accepted. See HO #35 - #37.

20. Accepted as committee reasoning. However, See HO #38.

21. Accepted. See HO #40.

22. Accepted.

23. Rejected. Irrelevant. See HO #41.

24. Rejected. Contrary to fact. See HO #43 - #44.

25. Rejected. Irrelevant and begs the question.

26. Accepted. See HO #45 and #48.

27. Accepted. See HO #45 and #46.

28. Rejected. Argumentative. The weight to be given testimony is determined by the hearing officer.

29. Rejected. Argumentative and improper argument.

COPIES FURNISHED:

James W. Anderson, Esquire LEWIS & McKENNA

820 East Park Avenue, Suite 204 Post Office Box 10475 Tallahassee, Florida 32302

Enoch J. Whitney, General Counsel Judson Chapman, Esquire Department of Highway Safety

and Motor Vehicles

A432 Neil Kirkman Building Tallahassee, Florida 32399-0500

Leonard R. Mellon, Executive Director Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0500

Robert Goldschmidt

Rouse & Associates - 4001 Fowler Avenue Limited Partnership

4033 East Fowler Avenue Tampa, Florida 33617

Barry Schneirov Rental Properties Trammell Crow Company

5405 Cypress Center Drive, Suite 120

Tampa, Florida 33609

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: 90-008027BID

Orders for Case No: 90-008027BID