The Issue The issues are whether David Boston should be issued an environmental resource permit and sovereign submerged lands authorization allowing him to construct 96 linear feet of rip rap revetment; construct a private dock of less than 1,000 square feet; and place 3,500 square feet of fill in non-jurisdictional areas; and whether he qualifies for a general permit to place a fill pad in isolated wetlands adjacent to the St. Johns River, a Class III waterbody.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this permitting dispute between neighbors, Petitioner, Vincent R. D'Antoni, Jr., contends generally that Respondent, David Boston (Boston), will cause flooding to Petitioner's property by reason of placing too much fill on an isolated wetland, which lies in the center of Boston's property. The filling is in conjunction with Boston's efforts to construct a single-family residence and private dock on his property, purchased in June 1998, which lies adjacent to the St. Johns River, a Class III waterbody, in Duval County, Florida. In preliminary decisions made on November 5, 1998, and January 21, 1999, Respondent, Department of Environmental Protection (DEP), "acknowledge[d] receipt" of Boston's intent to use a noticed general permit "to fill less than 4,000 square feet of an isolated wetland to facilitate construction of a single family home" on his lot (Case No. 99-2861), and gave notice of its intent to issue Boston an environmental resource permit and sovereign submerged lands authorization allowing him to construct a rip rap revetment and a dock and to place 3,500 square feet of fill in mainly non-jurisdictional areas (Case No. 99-1916). Although a number of objections were raised by Petitioner in his original filings, as clarified at the final hearing, Petitioner now contends that Boston placed excessive fill on his lot, including an isolated wetland, and that the fill has resulted in flooding, saturated soil, or standing water on Petitioner's property. He also contends that the location of Boston's proposed dock will affect the ability to use his own dock. Because no evidence was presented on the docking issue, and through admissions Petitioner acknowledged that there will be no adverse environmental impacts, no consideration will be given to those objections. Finally, Petitioner does not object to the placement of the rip rap revetment on the shoreline. Accordingly, the request for an environmental resource permit and consent to use sovereign submerged lands in Case No. 99-1916 should be approved. The property in issue lies just south of the Jacksonville University Country Club and a few blocks west of University Boulevard North on Wayland Street, which fronts the eastern side of the St. Johns River in a tract of land known as University Park. Except for the Boston lot, all other waterfront lots are now developed. When facing the river from Wayland Street, Petitioner's lot lies to the right of Boston's lot, while another lot owned by Robert Henderson (Henderson) lies to the left of Boston's lot. The lots are up to 500 feet deep; Boston's lot is around 96 feet wide, while Petitioner's lot has a similar width but narrows to only 20 feet or so near the river. At the river end of the D'Antoni, Boston, and Henderson lots is an area of contiguous wetlands. Until 1995, DEP regulated those wetland areas and this prevented D'Antoni and Henderson from placing any fill in those areas. Under DEP's current wetland delineation rule, however, such areas are non- jurisdictional, and any placement of fill at the river end is outside the purview of DEP's jurisdiction. Before Boston's lot was cleared and filled, it was about a foot lower in elevation than the D'Antoni lot; this was true even though Petitioner has never changed the natural grade of his property since it was purchased and developed. Therefore, water tended to flow naturally from an upland area north or east of the D'Antoni lot, through the D'Antoni lot to Boston's lot, and then through the lower part of the Henderson lot populated by "very mature cypress trees," and eventually into the St. Johns River. According to a 1977 aerial photograph, the Boston lot contained what appears to be a tidal connection from an uplands area through the wetlands on his property to the river. However, construction on property adjacent to the Henderson lot sometime after 1977 severed this connection, and a tidal connection (direct hydrologic connection) to the river no longer exists. Under Rule 62-341.475(1)(f), Florida Administrative Code, "a single family residence" is exempt from the Environmental Resource Program permitting and a general permit will be granted "as long as it is not part of a larger plan of common development," and "the total area of dredging or filling in isolated wetlands for the residence and associated residential improvement shall not exceed 4000 square feet." Since there is no longer a direct hydrologic connection between the wetlands on Boston's property and the St. Johns River, the wetlands are isolated within the meaning of this rule. Availing himself of the foregoing provision, on October 19, 1998, Boston gave notice to DEP "of [his] intent to use a noticed general permit to fill less than 4,000 square feet of an isolated wetland" on his property. He also provided certain drawings and other information (prepared by his surveyor) to show that he qualified for the permit. DEP does not "issue" a noticed general permit; rather, it only determines whether the applicant qualifies for a permit and then "acknowledges" this fact. Accordingly, on November 5, 1998, DEP "acknowledge[d] receipt" of Boston's notice. Although DEP encourages the user of such a permit to notify affected or adjoining property owners, there was no legal requirement that Boston do so, and he proceeded to clear the lot and then fill a part of the wetland area with two or three feet of dirt without giving notice to Petitioner or Henderson, his two neighbors. The filling raised the elevation of the Boston property at least two feet above the D'Antoni and Henderson lots and impeded the prior natural flow of water. At the same time, Boston constructed a three to four-foot timber wall (consisting of railroad ties) on the Henderson property line to retain the fill and a similar two-foot wall on Petitioner's line. These changes had the effect of impounding the water which had previously flowed naturally in a north-south direction through the wetlands from the D'Antoni lot to the Boston lot to the Henderson lot. It also generated runoff from the Boston lot to the D'Antoni lot, which had not previously occurred. When Petitioner observed the adjacent lot being cleared and filled, and the resulting erosion of fill onto his property, pooling of water, and damage to his chain link fence after a heavy rain in January 1999, he filed a complaint with DEP. An inspection was made by DEP, and Boston was told to stop work until corrective changes were made to ensure that such flooding would not occur. After a series of changes were made which satisfied DEP's concerns, the stop work order was lifted. Boston also signed a consent order and paid a $100.00 fine. However, pending the outcome of these cases, no further construction work has occurred. Petitioner has contended that Boston has placed more than 7,200 square feet of fill on his property in violation of the rule, which limits the amount of fill to less than 4,000 square feet. While this amount of filling has in fact occurred, approximately 3,500 square feet of fill was placed in non- jurisdictional areas between the shoreline and the isolated wetlands, and the rule only requires that Boston limit his fill to less than 4,000 square feet on the isolated wetland. Thus, contrary to a suggestion by Petitioner's engineer, the jurisdictional and non-jurisdictional filling are not totaled together to determine whether the threshold within the rule has been exceeded. Through photographs received in evidence and testimony by Petitioner and his wife, it was established that flooding or standing water has occurred on Petitioner's property during heavy rainfalls since the filling occurred, even as recently as January 2000. The evidence further shows that Petitioner's chain link fence has been damaged through the weight of the fill pressing against the fence. In addition, Petitioner has suffered the loss of "a couple of trees" because of "mucky" and "oversaturated" soil caused by excessive water. Also, a dog house on a raised platform in the back yard which was previously dry now "stays in water." These affected areas lie immediately adjacent to the filled area of the isolated wetland on Boston's property. Finally, there is an erosion problem beyond the isolated wetland consisting of sand and silt flowing from Boston's lot onto Petitioner's lot during heavy rainfalls. Despite these problems, Petitioner does not object to the development of the lot; he only asks that Boston do so in a manner which prevents these conditions from recurring in the future. Petitioner's engineering expert, Ronnie D. Perron (Perron), a professional engineer who visited the site in August 1999, ran a computer model (Interconnected Channel and Pond Routing, Version 2.11) showing runoff both before and after the fill was placed on Boston's lot. He concluded that "there was over one and a half feet of flooding in that wetlands due to filling Mr. Boston's lot" during a "mean annual storm event," which assumes five inches of rain during a 24-hour period. Even when he used more conservative estimates, Perron still arrived at water accumulations ranging from 0.6 feet to 1.5 feet. This excessive runoff is caused by the retaining wall and fill, which "blocks off" the water and causes it to "spread out in [Petitioner's] whole back yard." In response to Perron's model, a DEP professional engineer, David P. Apple (Apple), ran another computer model (PONDS, Version 2.25) received in evidence as Respondent's Exhibit No. 14. That model shows that during a three-year, one- hour storm event, the small depressed area on Boston's property (including the isolated wetland) had sufficient storage capacity to absorb up to six inches of runoff from off-site areas and not overflow back onto Petitioner's property. This size of storm event (which produces two and one-half inches of rain in an hour) is typically used by the Department in calculations for single- family residential property when the impervious area site is less than fifty percent. In this case, Apple didn't "feel that the impervious area out there was greater than [fifty] percent." Therefore, Apple concluded that the storm event used by Perron was too large, and that the smaller event used in his model was more appropriate. He also concluded that the Boston property could retain all water in a normal storm event without discharging any stormwater onto the D'Antoni lot. He did not, however, address the issue of the fill and retaining wall on the Boston lot impounding the water on his neighbor's lot. In developing the input perameters for his model, Apple assumed that water falling at the front (Wayward Street) side of the D'Antoni property drained to the front roadway; in fact, much of that water drains to the rear of the lot into the wetland area. A similar incorrect assumption was made regarding runoff on the Boston lot. If modifications were made to account for the proper drainage patterns, the Apple model would show larger amounts of water staging on the Boston property during rainfall events, which would increase the possibility of runoff onto the D'Antoni lot. Apple questioned the accuracy of the Perron model given the fact that Perron had used a larger storm event than he (Apple) believed was appropriate. However, even if Perron had used a three-year, one-hour storm event on his computer model, as advocated by Apple, he established that it would have resulted in flood staging on Petitioner's property between 0.97 and 1.64 feet during a smaller storm event. DEP proposed no solutions to the water problems on the D'Antoni lot, presumably because it concluded that the rule was satisfied; that by filling the Boston lot, it was no longer the "stormwater pond for the neighborhood runoff"; and that DEP had no other regulatory authority to solve this peculiar situation. The record shows clearly, however, that if no changes are made, water will continue to back up on Petitioner's property by virtue of the higher elevation on the Boston lot, and the possibility of runoff from Boston's lot exists during certain storm events. Neither condition existed before the fill was added. To correct the foregoing conditions, Perron proposes two corrective measures. First, Boston should install a yard drain (underground culvert) beginning in the wetlands area of his property and outfalling to the cypress trees on the adjacent Henderson lot. Besides providing an outfall for the excess water, this would also help recharge the mature cypress trees on the Henderson lot. Second, D'Antoni should install a series of "yard drains" using high-density polyethylene pipes to convey the standing water on his lot directly into the St. Johns River. The expert opined that neither activity would require a permit from DEP. These modifications are reasonable and appropriate and should be used by the factioning parties. Accordingly, the installation of a yard drain should be a condition for Boston to use his noticed general permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application for a permit and consent in Case No. 99-1916 and confirming that David Boston qualifies for use of a noticed general permit in Case No. 99-2861 provided, however, that such use be conditioned on Boston constructing an underground culvert with a yard drain from the wetland area on his lot to the St. Johns River. DONE AND ENTERED this 22nd day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Vincent R. D'Antoni, Jr. 3824 Wayland Street Jacksonville, Florida 32277 David Boston 2262 Orchard Street Jacksonville, Florida 32209 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact No evidence was adduced on which findings of fact could be based.
Recommendation It is, accordingly, RECOMMENDED: That DER deny petitioner's application for a dredge and fill permit. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Florida. COPIES FURNISHED: Cary C. Mills Post Office Box 7015 Milton, FL 32570 Richard L. Windsor, Esquire Stephen K. Hall, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 ROBERT T. BENTON, II 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 18th day of July, 1989. Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact On or about May 3, 1978, the petitioner filed with the respondent an application for dredge and fill permits and for a water quality certificate to allow petitioner to complete a planned residential community on and adjacent to Marco Island, Florida. The application encompasses approximately 17,000 acres of petitioner's property, and hundreds of thousands of dollars were expended by petitioner in preparing the application. On November 28, 1979, respondent issued a notice of "intent to deny" the permit application. Among the grounds for denial cited in the nine page "intent to deny" are that the petitioner ". . .has not provided the Department with affirmative reasonable assurance, as required by Subsection 17-4.28(3), Florida Administrative Code, that the immediate and the long-term impacts of this project will not violate State Water Quality Standards." Similar language concerning assurance of water quality standards appears throughout the "intent to deny," as does the Department's assertion of dredge and fill permitting jurisdiction over the proposed development areas. Specific subsections and paragraphs of regulatory rules concerning jurisdiction are not identified in the Department's notice of "intent to deny." The respondent's "intent to deny" is the subject of pending administrative proceedings between these same parties in Division of Administrative Hearings Case Nos. 79-2471 and 80-683. In those proceedings, the petitioner is contesting, inter alia, the Department's application of the rules under challenge herein. By affidavit, the respondent's Chief of the Bureau of Standard Permitting, testified as follows: "I am personally aware that dredge and fill activities often result in violations of water quality standards, result in adverse impacts to and create potentially harmful conditions for animal and plant life, result in the alteration of the chemical, physical and biological integrity of waters, and result in the emission of water contaminants."
The Issue Whether Respondent violated subsection 760.10(1), Florida Statutes by denying Petitioner a promotion on account of his race and color.
Findings Of Fact Henry E. Tate is a forty-nine year old black male who has worked at the Kennedy Space Center (KSC) since April 12, 1965. (tr-10, 11) From 1965 until the present, a series of civilian contractors have had agreements with the National Aeronautics and Space Administration (NASA) to perform logistical and housekeeping duties at KSC. These included Transworld Airline, the Boeing Company and Expedient Services, Inc. (tr-34) In January 1983, EG & G Florida, Inc., (EG&G) assumed the master base contract for logistics and housekeeping, but it was not until July 1983 that it took over operational control of the roads and grounds department. EG & G employs in excess of fifteen persons. (tr-101, 102, Exhibit number 11) Except for three or four months in the early 1970's when he worked in the mechanic shop, Mr. Tate was employed in the roads and grounds department steadily from 1965. As each successor contractor took over he applied for, and was hired for the same job. This included EG & G in July 1983. (tr-11, 13, 34) His current title is lead labor operator- pest control and he makes $10.16, plus $.75 lead pay, per hour. (tr-11) Mr. Tate's duties in the roads and grounds department have included pesticide and herbicide spraying of the grounds and buildings, and all aspects of weed, insect and pest control, both indoors and out. At different times he has driven dump trucks and operated forklifts, locals and trailer trucks. (tr-ll, 12, Exhibit number 15) In 1971, Mr. Tate was made "lead" over pest control, herbiciding and sanitation. In that capacity he worked directly under a supervisor who gave him instructions as to the work to be performed. He would then take his people and get the work done. Afterwards he would report back on the results. (tr-51, 56, 57, Exhibit 115) He has remained a lead worker since that time; even though the formal title was abolished in 1984, the pay differential remains. (tr-152) The rationale for the higher pay is that leads assign work to crews which vary commonly from two to eight people. Leads order material and perform some, administrative tasks in conjunction with the functions of their job classification. (tr-153) At varying times Mr. Tate has served as lead over one to ten persons. He is currently lead over a crew of six. (tr-13, 14, 36, 49, 266, 267) During the period of the TWA contract, Mr. Tate filled in as acting supervisor when his supervisor was on vacation. (tr-47) In November 1983, EG & G posted a job listing for the position of Supervisor, Roads and Grounds Department. The job posting number 1125 required a high school diploma, five years supervisory experience in the assigned area of responsibility and a State of Florida restricted pesticide license. (Exhibit number 1) Mr. Tate applied for the job. He has a high school education and felt that his long experience in the field and his lead experience qualified him. His supervisor vacating the job also thought Mr. Tate was qualified and would be hired. (tr-60) Mr. Tate was not interviewed for job posting number 1125; nor were the two other internal applicants who were also black. (tr-18, 275, 276) Instead a white male was hired. That individual, Ted Bender, had an associate degree in business administration, some supervisory experience and the required pesticide license. (Exhibit number 13) Mr. Tate was informed of the posting result by a form dated November 8, 1983. The basis for his non-selection was checked, "meeting minimum qualifications", with an asterick and the hand-written notation, "Must have a restricted pesticide license in the State of Florida". No other basis was checked or noted. (exhibit number 2) At the time that he applied for job posting number 1125, Henry Tate had applied for his pesticide license but did not receive it until December 1983. He studied on his own, reading anything he could find on pest control, and took vacation time off to go to Gainesville to take the license exam. His current license expires October 31, 1987. (tr-15, 64, Joint Prehearing Stipulation) Ted Bender resigned in May 1938, and the vacancy was again posted. Job posting number 1331 stated a posting date of May 24, 1984 and a closing date of May 28, 1984. It differed from posting number 1125 in the requirement that the successful applicant get a restricted pesticide license within sixty days of position acceptance. The five years supervisory experience in assigned area of responsibility and high school diploma requirements remained the same. (Exhibit number 5) Henry Tate applied again and was interviewed on May 31, 1984, by Raymond Tuttle, who at that time was Manager of Roads and Grounds. At the end of the interview Mr. Tuttle filled out the company Interviewer's Report form with the following appraisal: Job qualifications are met if lead time is classified as supervisory experience. He has worked with pesticides for approximately 15 years on KSC. He has a working knowledge of pesticide application although he has no formal horticulture training. He has attended several extension service sponsored seminars over the past 15 years that covered pest control problems in our local area. He currently holds a valid state of Florida pesticide license. Mr. Tate seems willing to accept the responsibilities involved but would require some management skills training to aid in the performance of this position. (Exhibit number 15) He rated Mr. Tate "good" on a scale which ranged from "top" to "unsuitable"; he checked "Hold-Further Review" for the recommended action. (tr. 157, 164, Exhibit 15) During the interview he did not tell Mr. Tate there was a problem with his supervisory experience. (tr-23, 183) Raymond Tuttle also interviewed another internal candidate, William Deffendall. He noted on the Interviewer's Report that this candidate did not meet minimum qualifications. (Exhibit 14) After the interviews, Raymond Tuttle went to see Nancy King, who at that time was Supervisor of Employment at EG & G. He asked her whether lead time could be considered as supervisory experience and she did not have an answer. They both looked at the files and could not find anyone who had supervisory background or a restricted pesticide license. At that point they discussed advertising for external candidates and drafted the advertisement. (tr-185, 186, 205, 207, 208) Sometime later, after the first week in June, Nancy Ring asked Mr. Erikson in employment relations whether lead time could be used to meet the supervision requirement. He also had to check; and when he got back to Ms. King a few days later the answer was that EG & G had not used lead time in lieu of supervisory experience. (tr-232, 233, 234) Meanwhile, on June 4, 1984, Mr. Tate was given his posting result form: "You were not selected for this position due to:" *Other ". The handwritten explanation of "other" was "Other candidates are being considered." (Exhibit number 16) At that time there were no other candidates available to be considered as Messers. Tate and Deffendall were the only internal applicants; no candidates with applications on file met the minimum qualifications, and the advertisement for external candidates didn't run until June 12, 1984. (tr-191, 211) The advertisement that ran from June 12-June 17, 1984, differed materially from both job posting number 1331 and the position description for Supervisor, Roads and Grounds that was in effect at that time. The newspaper notice required not a high school degree, but a "B.S. in Agriculture", and 3-5 years experience in horticulture, entomology and supervision. The formal education requirement was therefore increased and the experience requirement was reduced from 5 years to "3-5 years". (Exhibit number 22) Ms. King admitted that the advertisement was not a formal upgrading of the job. (tr-237) More significantly, Raymond Tuttle admitted that they were not looking for someone with a Bachelor's degree but rather increased the requirements to keep out a flood of candidates. (tr-190) According to Ms. King, the company has a policy of substituting experience for educational requirements and the B.S. degree would not have excluded Mr. Tate. However, he was not told of this and there was no way that an individual reading the advertisement could surmise that. (tr-214, 238, 239) Four candidates responded to the advertisement and were interviewed; all were white. (tr-203) The first choice among those candidates was Richard Van Epp, rated "high" by Raymond Tuttle. Mr. Van Epp's application reveals solid experience in landscape work, including supervision, but nothing specific in entomology, a deficiency also noted on Raymond Tuttle's Interviewer's Report. (Exhibit number 17) Richard Van Epp was offered the job but turned it down. (tr-172) The second-choice candidate, Larry Gast, was hired effective July 24, 1984, with a salary offer of $13.50 per hour in a salary range of $9.94 (minimum), $12.64 (mid) and $15.34 (maximum). (Exhibit number 5) Mr. Gast was rated "high" by Raymond Tuttle with a notation on the Interviewer's Report that he met all requirements of this position. Mr. Gast's application reveals a B.S. degree from the University of Florida in 1980, with his major field in entomology. Prior to college he was in high school. The only job experiences listed on his resume and application are lab technician with the U.S. Department of Agriculture in Gainesville, from 11/79 to 3/81; and from 4/81- 6/84, production supervisor/entomologist with the U.S. Sugar Corporation in Clewiston, Florida. (Exhibit number 18) At the time that he was hired by EG & G Larry Gast had approximately three years and two months experience supervising others in a related field. This falls within the minimum required by the newspaper advertisement but falls short of the five years required by the job posting and position description. (Exhibit number 5) On July 23, 1584, Henry Tate was sent another posting result form, this time checked "Another candidate was selected." (Exhibit number 20) He was called into Mr. Tuttle's office and was told that a new supervisor was hired. He was told that pesticides were no problem, herbicides were no problem, but that Mr. Tuttle was "not comfortable" with his background in horticulture. Mr. Tuttle also told him that something might come along later. Mr. Tate replied that he had been in roads and grounds for almost 20 years and how much later was he supposed to wait. (tr-274) Henry Tate was never told that there was any problem with his lack of supervisory experience until the fact finding conference held before an investigator from the Florida Commission on Human Relations. (tr-32, 253, 273) Sometime after the fact finding conference, Earle Patrick, who was then EG&G's Equal Employment Opportunity, Supervisor, called Mr. Tate and asked why he had not applied for another Supervisor job posting. This posting also required supervisory experience and Mr. Tate quickly informed him that he had no more experience than when he applied for the first job. (tr-272) Earle Patrick's convoluted testimony explaining why the phone call was made ended with this exchange: Q. [by Mr. Betancourt] Well, did you think he was qualified for this position and had a shot at it? A. No, I didn't. Q. So you were calling him about a job he couldn't possibly get? A. That's right. (tr-261) When Larry Gast was initially hired he was Supervisor of Roads and Grounds in charge of grounds maintenance and pest control. He supervised approximately 29 individuals and had three leads. There was another Supervisor of Roads and Grounds in charge of road maintenance and sanitation services. The Roads and Grounds Department was reorganized in early 1985 to create three supervisors. Larry Gast became responsible for the bridgetenders and pest control and his staff was reduced to fifteen individuals, including one lead, Henry Tate. Nine of the staff are bridgetenders who never leave the bridge and do not require a lead. The remaining workers can be anywhere in an area 28 miles long and 14 miles wide. As lead, in the words of Larry Gast, Henry Tate is the "eyes in the field" for those workers. This organizational structure still exists. (tr-121, 123, 266, 267, 269, Exhibit number 11) The reorganization brought Larry Gast's position closer into line with the industry standard described by EG & G's Manager of Personnel Management, Stephen Mansfield. That standard says that supervisors should be able to handle six to eight people; anything more tends to stretch the supervisor thin; anything less would suggest that you may not need a supervisor. (tr-151,152) With 29 persons, Larry Gast concedes he was stretched very thin. (tr-270) Henry Tate was highly qualified for the position of Supervisor of Roads and Grounds, job posting number 1331. While EG & G had never counted lead time for supervisory experience in the past, the evidence strongly suggests that the issue simply never arose in the past. Various individuals in the employment office couldn't immediately answer when asked if lead time could be considered. Most supervisor positions do not require previous supervisory experience. (tr-136) At one point during another reorganization, approximately 16 leads were reclassified as supervisors. (tr-153, 156) The substantial weight of evidence supports a finding that EG &G did not consider Henry Tate unqualified: For job posting number 1125, he was told only that he lacked the restrictive pesticide license and he was not interviewed. He then got the required license. He was interviewed for job posting number 1331 and was not informed that there was a problem with his failure to meet minimum qualifications until well after the position was filled and the discrimination issue was raised. Neither job posting result forms so informed him, despite the fact that the form includes a line to be checked with regard to meeting minimum qualifications. Raymond Tuttle rated Tate a "good" candidate and put his application "on hold", both of which are inconsistent with a belief that the individual is unqualified. Earle Patrick's intent in calling Henry Tate about the new supervisory position could hardly be so perverse as he has contrived in his testimony. EG & G cannot legitimately claim that Mr. Tate's lack of supervisory experience was the basis for their rejection of his request for promotion. They commenced the solicitation of outside candidates well before the answer on lead time came back. (tr-210, 211, 233)`' While Henry Tate may have benefitted from some training to acquire polish as a supervisor, training is provided routinely by EG & G for all new, as well as old supervisors. (tr-244) The company espouses a policy of promoting from within.
The Issue The issue for consideration in this case is whether Respondent should be disciplined, to include a three day suspension without pay, because of the misconduct alleged in the Notification of Suspension issued herein.
Findings Of Fact At all times pertinent to the issues herein, Respondent, William T. Mooney, worked as a laboratory technician for the City of Clearwater's Public Works/Water Pollution Control Division. On April 15, 1993, Doreen Spano, the City's utility lab supervisor, held a meeting of her division personnel at which she identified Iracema Drysdale as the lead worker and, in order to clarify any misconceptions among lab workers as to work deadlines, presented a policy letter for the lab, entitled "New Work Schedule". The schedule set guidelines and deadlines for the daily workload. The memorandum contains inconsistent statements, however. For example, while Ms. Spano indicated both in the memo and at hearing that the instructions therein are merely guidelines, she also used such imperatives as "must" and "will" in the memo. Specifically, the memorandum indicates the daily plant BOD must be in the incubator by 12:00 PM, and the daily plant bacteria must be in the incubator by 12:30 PM. Respondent has worked in this City laboratory for approximately 14 years. During this time he has developed a method of accomplishing his tasks which is described by Ms. Drysdale as less than efficient. She indicates he frequently misses his time deadlines and works at his own pace. Respondent, on the other hand, claims he has always completed his tasks according to the Standard Methods Manual, but, due to the time the samples are received in the lab, could not accomplish both the BOD and the bacteria procedures within the guidelines set in that manual and the Environmental Protection Agency standards manual. Either one or both would be late. This controversy, much of which was made by both sides, is, in reality, only peripherally related to the issue in controversy here which is whether Respondent was insubordinate or not on September 9, 1993. Both Ms. Drysdale and the Respondent signed the memorandum in question here indicating their receipt and understanding of the directions contained therein. Thereafter, on September 9, 1993, Ms. Drysdale entered the lab shortly before the lunch period to find the bacteria procedure not done and Respondent working on the BOD procedure. It appears that the bacteria sample was taken at 6:00 AM on this day and, under EPA guidelines, had to be preserved in the incubator within six hours or the results of the procedure would be invalid and not eligible for reporting to the EPA. When Ms. Drysdale asked Respondent why he was doing the BOD when the bacteria procedure had not been accomplished, he indicated that Ms. Spano's memorandum required the BOD to be done by 12:00 noon and the bacteria not until 12:30 PM. He considered this a directive and indicated he would complete his work consistent therewith. Again, there is a contradiction in the testimony as to the nature of the conversation between Ms. Drysdale and the Respondent. Ms. Drysdale asserts that about noon on the day in question, she suggested to Respondent that he start the bacteria procedure first and then do the BOD procedure. Respondent refused because he believed he had to follow the new work schedule prepared by Ms. Spano. Ms. Drysdale then told him to do the bacteria procedure first and she would assume the responsibility. Respondent still refused and, raising his voice to her, completed the BOD procedure. When he finished that, he did the bacteria procedure but by that time, the sample was too old and had to be discarded. Respondent's recounting of the incident is somewhat different. He claims he was approached by Ms. Drysdale who asked him why he did the bacteria procedure after the BOD procedure. When he pointed out the dictates of the memorandum, she claimed to know nothing about it even though her signature, along with that of Respondent and Mr. Olson, appears on the bottom thereof. Nonetheless, according to Respondent, Ms. Drysdale said she would check on it. After lunch, according to Respondent, Ms. Drysdale came back with the Standard Methods book. When he showed her the new work rules, he claims, she admitted she was aware that Ms. Spano had written them. When he asked her what Ms. Spano had said about the situation, she allegedly replied, "Why don't you do it the way I say and if Doreen (Ms. Spano) asks, I'll take the responsibility." Respondent was upset because, he contends, things like this always happen. Respondent, in subsequent testimony, denied ever getting a direct order from Ms. Drysdale or that she indicated she would assume responsibility. On balance, while there is little doubt in Ms. Drysdale's testimony as to what happened, Respondent tells two different stories regarding the conversation. At one point he claims she asked him why he didn't do it her way and that if he did, she'd assume responsibility. At another, he claims she merely asked why he was doing the procedures as he was and made no mention of assuming responsibility. It is clear that Ms. Drysdale wanted the bacteria procedure done first, and while she might not have couched her request in directory language, there can be little doubt she communicated her desires to Respondent, albeit in a perhaps more gentle manner. In any case, she was Respondent's supervisor and he knew it. She wanted the work done as she indicated and her request, made under the authority she had to get the work done as she desired, had the force and effect of a direct order which Respondent disobeyed at his peril. Ms. Spano indicated she discussed not only the appointment of Ms. Drysdale as lead worker at the April 15, 1993 meeting, but also the six hour requirement for specimens. Respondent denies this, but it is found he knew exactly what the requirements were. He claims he has been doing things the way the memorandum calls for ever since it was promulgated and this is not inconsistent with his current position on doing the BOD procedure first. When this incident took place, Mr. Reckenwald, the superintendent of the water and pollution control division, and the overall supervisor of the laboratory operation in question, received a recommendation for discipline, primarily because of Respondent's failure to follow orders. In addition, however, the incident created a problem for the City which has to report to the EPA and other federal agencies. Because of this report requirement, it is imperative the work be done properly. If it is not done properly, the work is worthless and may result in sanction action against the city by federal regulatory agencies. Not the least of concerns, also, is the public health consideration since effluent, the source of samples for both BOD and bacteria procedures, is discharged into the public waterways. On the basis of the above, a recommendations was made that Respondent receive a three day suspension. This is consistent with disciplinary guidelines contained in the City's Guidelines For Disciplinary Action. Respondent appealed the action to the City Manager who reviewed his submittal but nonetheless upheld the disciplinary action proposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the City of Clearwater take final action in this matter to consist of suspension of the Respondent without pay for three days and imposition of 40 disciplinary action points. RECOMMENDED this 24th day of May, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 24th day of May, 1994. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P.O. Box 4748 Clearwater, Florida 34618 William T. Mooney 1433 Laura Street Clearwater, Florida 34615 Michael J. Wright City Manager City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
Findings Of Fact On September 13, 1977, SFWMD advised Coquina by letter that "[a]t its September 8, 1977 meeting the Governing Board of this District gave Conceptual Approval of [Coquina's] surface water management plan . . . subject to the four special conditions found on page 15 of the District's staff report. . . [and an] additional special condition Joint exhibit No. 5. The first special condition found on page 15 of the District's staff report requires that complete construction plans be submitted, including "supporting calculations for all design elements not already submitted and any other plans necessary to assure adherence to the concept plan." Joint exhibit No. 2, page 15. The plan approved by SFWMD is designed to lower the water table in a 22 square mile area northwest of Lake Okeechobee in Okeechobee County. In its natural state, the land lies under water for part of the year. The corporate owner of the land has plans to subdivide it and sell residential lots, beginning with the four contiguous sections as to which the present application for a construction permit has been made. These four sections (phase I) lie north and south of each other in the western portion of the larger tract. The proposed construction would consist of digging ditches or swales paralleling existing and planned roads; building intersecting collector swales running north and south; installing ditch checks where swales intersect; dredging a retention pond into which the collector swales could empty at the south end of the phase I tract; digging an outfill ditch to channel water leaving the retention area for Ash Slough; and erecting a weir, between the retention area and the slough. Culverts through the weir would be equipped "with standard flash board risers in which the water level is regulated by stop logs which can be added or removed," Coquina's exhibit No. 1, p. 10, and the culverts would ordinarily serve as the route by which water from the retention area would reach Ash Slough. Under extremely wet conditions, however, water from the retention area could overflow the weir. The intervening petitioners own land on Ash Slough downstream from the retention area and adjacent to the southern boundary of the phase I tract. No formal studies of the likely effects of the proposed construction downstream were undertaken by Coquina or by SFWMD in evaluating Coquina's application. The surface water management plan given conceptual approval by SFWMD provides: The quantity of runoff flowing to the south through existing sloughs will be controlled to protect the downstream areas against flooding whereas at the present there is no control. The amount flowing to the existing sloughs to the south during the 25 yr. design storm will be limited to the amount flowing to those sloughs before any development takes place. Lesser storms will be more completely retained on the property. Controlled discharge will be provided from retention areas to the existing sloughs for the purpose of nourishing these streams. Coquina's exhibit No. 1, p. 1. (Emphasis supplied) Since no records of the amount of discharge to Ash Slough "before any development" are in existence, certain assumptions and estimates were made. One such assumption on which the application for construction permit proceeds is that the phase I tract all drains to the south, in its present state. In fact, some of the water now leaving the phase I tract travels in a westerly direction and never enters Ash Slough, at least under some weather conditions. If the proposed construction is accomplished, the phase I tract would all drain to the south through Ash Slough. As things now stand, a significant amount of water leaves the phase I tract by evapotranspiration. If the water table were lowered two and a half feet, which is what Coquina proposes, less water would leave the phase I tract by evapotranspiration, leaving more water to flow over the ground. In estimating the quantity of the anticipated discharge to Ash Slough, if the proposed construction takes place, it is necessary to take into account drainage onto the phase I tract from adjoining lands. Coquina has failed to furnish plans and supporting calculations sufficient to insure that the proposed construction will not increase the amount of flow to Ash Slough during the 25 year design storm. Increased flow to Ash Slough would aggravate downstream landowners' drainage problems, unless the slough could handle the additional flow, a question which the application does not address. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 34O So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny Coquina's application for construction permit. DONE and ENTERED this 14th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraph one of intervening Bass petitioners' proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not demonstrate that downstream landowners would in fact be harmed. Paragraphs two, three, four, five, six and seven of intervening Bass petitioners' proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of respondent Coquina's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the date of the application. Paragraphs two, three, four, five, six, seven, eight, nine and thirteen of respondent Coquina's proposed findings of fact have been adopted in substance, insofar as relevant. Paragraph ten of respondent Coquina's proposed findings of fact stated a conclusion of law, in part. While "testimony was presented that the construction of Phase I would have no substantial adverse affect [sic] on surrounding properties," the evidence as a whole did not establish this fact. Paragraphs eleven and twelve of respondent Coquina's proposed findings of fact have not been adopted because they were not established by the evidence, except for subparagraph eleven (f), which was proven. COPIES FURNISHED: John Henry Wheeler, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Robert Birenbaum, President Viking Communities Corporation (Coquina Water Management District) 123 Northeast 70 Street Miami, Florida 33138 Kyle S. Van Landingham, Esquire County Attorney Okeechobee County Courthouse Okeechobee, Florida 33472 Andrew B. Jackson, Esquire J.C. Bass & Bass Ranch, Inc. Post Office Box 488 Lake Placid, Florida 33852 Emerson Allsworth, Esquire 1177 Southeast Third Avenue Ft. Lauderdale, Florida 33316 Mr. Bob Wittenberg Division of Florida Land Sales and Condominiums The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Dr. Patrick M. McCaffrey Kissimmee Coordinating Council 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. George Stansbury Central Florida Regional Planning Council Post Office Box 2089 Bartow, Florida 33830
The Issue Did the Respondent, State of Florida, Department of Community Affairs, Florida Housing Finance Agency (the Agency), act fraudulently, arbitrarily, illegally or dishonestly in exercising review criteria Nos. 3, 4 and 7 to evaluate Petitioner, Spectra Engineering and Research, Inc. (Spectra), in the Agency's Request For Proposal (RFP) entitled Environmental Review Services for Home Investment Partnership Program, FHFA 96/05?
Findings Of Fact The RFP On February 26, 1996, the Agency mailed the RFP to prospective vendors. The services it sought from the vendors were as follows: SERVICES SOUGHT: Environmental Assessment Review services to be provided on each HOME project shall provide environmental reviews of projects and applicable activities and assist the Agency HOME staff in the identification and evaluation of the likely impacts of the projects on the environment and vice versa. The Environmental Assess- ment Review Agency shall also ensure that requirements of the Florida Statutes, Florida Administrative Code, and the Florida Housing Finance Agency Act are met by all reviews; submitting periodic status reports to the Agency; inspecting the development site; advising the Agency as to the environmental feasibility of development; documentation of required HUD forms submitted and generally providing such assistance and services to the Agency as are generally provided by an Environmental Assessment Review Agent. Reviews shall be completed on HUD Environmental Assessment Format II (see attached Exhibit B). It has been determined by the Agency that the services herein cannot be more specifi- cally defined and, in fact, the Agency contemplates the offerors providing a description of the services that can be rendered as a part of their competitive process. The Agency received responses to the RFP from Spectra; the Florida Planning Group, Inc.; Post, Buckley, Schuh and Jernigan, Inc.; Genesis Group, Inc.; Jim Stidham and Associates; William H. Bishop Engineers, Inc.; and Anderson Columbia Environmental, Inc. The RFP set forth criteria for selection as: The ability of the offeror to provide the services described herein in all relevant parts of the state. The demonstrated technical competence, expertise, innovative ability and experience of the offeror in providing the services described herein. The effect of the selection of the offeror on the Agency's ability to administer its HOME program. The offer or offers that is/are the most advantageous to the Agency and the public, taking into consideration the criteria set forth herein. The availability and ability of a minority-owned business. Qualification of individuals assigned to this account. The individuals who Shall be assigned to this account shall be designated in writing. The Agency's prior experience with the offeror. Any costs to the Agency or the borrower which will be incurred as the result of the offeror's selection. Whenever identical bids are received, preference shall be given to a certified Minority Business Enterprise in the event that its proposal is scored equal to the otherwise highest scoring proposal pursuant to Section 287.057(10), Florida Statutes. The vendors were also provided some insight into the purpose of the program that they would serve in a category in the RFP entitled "Background Information" which stated: The Agency makes mortgage loans to developers of rental and single family housing from funds out of the State of Florida's HOME Investment Partnership Program ("HOME"). The loans are make [sic] at below market interest rates and are secured by mortgages on the properties financed. As required by receiving a federal HOME allocation, the Program requires a HUD Environmental Assessment Review pursuant to guidelines outlined in 24 CFR Part 58 (Environmental Review Procedures for Title I Community Development Block Grant Programs). The vendors were reminded that the contract award would be based upon the following: This contract shall be awarded to the offeror(s) who is (are) determined in writing to be the most advantageous to the State taking into consideration the criteria set forth in this Request for Proposals. Notification shall be in the form of a written Notice of Award. The Agency reserves the right to reject any and all proposals, to negotiate price and to make such awards as are necessary to best serve the public's interest. To further assist the Agency in deciding the outcome in its competitive bidding process, it established a scoring matrix which set forth the following selection criteria, each criterion having a maximum score of 10 points: CRITERIA FOR SELECTION (10 POINTS MAXIMUM EACH) POINTS Is there a breakdown of support services and assistance to be provided to the Agency? Is it detailed? Does the offeror have experience performing HUD Environmental Assessments? Is Work Schedule reasonable for services sought? Can the offeror provide the services in all relevant parts of the state? Are there copies of Resume's included describing personal qualifications? Is there a list of three previous clients with contact name and telephone numbers used as references? There must be a description of the similar work by the offeror. Is the work similar to that which is requested in the RFP? Does the offeror have prior experience with the Agency? If yes, evaluate the experience. ADDITIONAL POINTS (20 POINTS) Is the offeror a certified Minority Business Enterprise with certification included in RFP? To review the proposals the Agency formed a committee. Shane Acevedo was the Community Assistance Consultant for the HOME program and he coordinated the issuance, receipt and review of the responses to the RFP and served on the committee. Other committee members were Angela Hatcher, HOME Program Administrator; Tom Tinsley, Guarantee Program Administrator within the Agency; Audrey Byrne, Planning Manager; and Wanda Anderson, now Wanda Marie Toote, Planner IV. With the exception of Tom Tinsley, the committee members had immediate familiarity with the HOME program. Each committee member was granted an ample opportunity to review the responses to the RFP. That review process was separately conducted by individual committee members. In that process they were allowed to make notes concerning their impressions about the vendor's responses to the RFP. Following the review performed by the individual committee members, the committee assembled and discussed the responses by the vendors and assigned scores to the individual vendors by using the scoring matrix. In this process the committee arrived at a consensus for scoring, rather than taking the individual impressions by the committee members and arriving at an aggregate score for the respective criteria in the scoring matrix. The outcome of their deliberations awarded the Florida Planning Group 70 points, Post Buckley 65 points, Genesis Group 60 points, Jim Stidham 50 points, William Bishop Engineers 50 points, Spectra 40 points, and Anderson Columbia 35 points. The agency decided to use the three highest scorers as its consultants for the environmental assessments. Through its formal protest on April 29, 1996, Spectra challenges the scores assigned to it under criteria Nos. 3, 4 and 7. It contends that it should have received the maximum 30 points for the criteria. In comparing the respective scores received for criterion No. 3, "Is work schedule reasonable for services sought?", Genesis Group received 10 points, Jim Stidham received 0 points, William Bishop received 10 points, Anderson Columbia received 0 points, Spectra received 0 points, Florida Planning Group received 10 points and Post Buckley received 10 points. In comparing the respective scores received for criterion No. 4, "Can the offeror provide the services in all relevant parts of the state?", Genesis Group received 10 points, Jim Stidham received 10 points, William Bishop received 5 points, Anderson Columbia received 5 points, Spectra received 0 points, Florida Planning Group received 10 points and Post Buckley received 10 points. In comparing the respective scores received for criterion No. 7, "Does the offeror have prior experience with the Agency? If yes, evaluate the experience", Genesis Group received 10 points, Jim Stidham received 0 points, William Bishop received 0 points, Anderson Columbia received 0 points, Spectra received 0 points, Florida Planning Group received 10 points and Post Buckley received 5 points. In this category a vendor need not have had specific prior experience in the State of Florida's Home Investment Partnership Program. The vendor could be credited for prior experience with the Agency in its administration of other programs. In the informal discussions between the parties, through correspondence dated June 12, 1996, the Agency offered to award additional points to Spectra for criteria Nos. 4 and 7. In each instance the Agency offered 5 additional points for a total of 10 points bringing the overall score to 50 points. The basis for this overture was to "give Spectra the benefit of the doubt." At hearing the Agency continued to express its commitment to awarding the 10 additional points without further explanation beyond the fact that the agency made this gesture after consulting its counsel. The Agency has arbitrarily assigned the 10 additional points. Nonetheless, Spectra should be credited with those points and allowed to advance its claim that the Agency acted inappropriately in not awarding the balance of available points for those two criteria. To resolve Spectra's claims, a more critical discussion of the Agency's actions in performing the evaluation of Spectra's response to the RFP in the assignment of scores for criteria Nos. 3, 4 and 7 follows. Criterion No. 3 Is work scheduled reasonable for services sought? The basis for determining whether the proposed work schedule by the vendor was a reasonable estimate considering the services to be provided was premised upon the need to meet the requirements of the Florida Statutes, Florida Administrative Code and the Florida Housing Finance Agency Act and the need for the vendor to generally provide assistance and services to the Agency that are generally contemplated as being provided by Environmental Assessment Review Agents. With this in mind, the committee reasonably concluded that estimates for conducting environmental review assessments should be no less than 60 days. Any vendor whose estimate was less than 60 days received no points. As reported, a number of vendors, including Spectra, did not receive points for this criterion. In its response at 2.4.9, Detailed Work Schedule, Spectra stated: We estimate to complete each environmental assessment project within 10 working days from Notice-to-Proceed. However, depending on unforeseeable circumstances and on project complexity, some assessments may take a longer time to complete. The following is our project schedule. Spectra then included a chart with bar graphs. In that chart project tasks were identified as data collection and review, telephone/fax request for additional project information, site visits and site photographs, completion of HUD checklist and report preparation and recommendation. The bar graph portion of the chart for those projects was described as "targeted completion time (in days)". The numbers under the completion times were from 1 to 14. Some of Spectra's estimates for categories of project tasks overlapped. For that reason the data collection and review was described as being involved with the first 3 days. The telephone/fax requests for additional project information took place between day 1 and day 5. The site visits and site photographs took place between day 6 and day 8. The completion of HUD checklist took place from day 3 to day 6 and report preparation and recommendations took place from day 3 to day Alternatively, if the chart was read to describe individual tasks that were separate and apart, the total number of days reflected is approximately 24. Either version of the chart and considering the narrative in the proposal would reasonably lead the committee members to conclude that the estimate for completing the work was less than 60 days. Consequently, it was not inappropriate for the committee to assign 0 points to Spectra for criterion No. 3. Those vendors who received points for criterion No. 3 offered estimates to complete the work between 77 and 115 days. Those vendors received 10 points for their estimates. The other vendors who did not receive points either offered no estimate of days needed to complete the work or between 14 and 21 days to complete the work. Criterion No. 4. Can the offeror provide the services in all relevant parts of the State? The RFP does not describe what is meant by "all relevant parts of the state." In response to criterion No. 3 at 2.2 in its proposal, entitled "Ability of Firm to Provide Required Services in Relevant Part of the State," Spectra indicated: We did, in our past contract with the Agency, demonstrate our ability to provide the required services in relevant parts of the state. Project locations included: Dade County, the Town of Century, Holmes County, Hillsborough County, City of Leesburg, Okaloosa County, Leon County, Walton County, Gadsden County, and the City of Palmetto. In implementing the projects, we gathered pertinent project information and also interacted with relevant, environmental regulatory and other offices. We have established practical channels of communi- cation with appropriate regulatory-agency personnel. Therefore, we know feasible approaches to fast information-gathering which will quicken project completion. Moreover, proper planning and effective task-coordination will enable us to prudently allocate our resources and to assign our staff. Our location close to the Agency's Tallahassee office will enable us to promptly attend meetings or to respond to project matters. This will maintain smooth project flow. In addition, we have performed related services for other clients in several Florida counties, including Duval County, Franklin County, Bay County, Liberty County, Citrus County, Washington County, among other areas. These projects are described in detail in Section 2.5: Related Project Experience. Spectra had a HOME contract with the Agency in 1993, as renewed in 1994, and had provided services in projects that are listed in Spectra's response to criterion No. 3. On the face of the response information is provided which would seem to comply with the most expansive reading of the term "in all relevant parts of the State." Rather than credit Spectra for its ability to provide services as described in its response to criterion No. 3, the committee concluded that Spectra should not receive points based upon two considerations. First, the Agency had received complaints from project managers for whom Spectra was responsible to perform environmental assessments under their 1993 and 1994 contract with the Agency at the various locations. The project managers complained that Spectra expected the project managers to take form letters from Spectra seeking information necessary for the environmental assessments. Spectra would then anticipate that the project managers would decide who to contact to get the necessary information to perform the environmental assessments and transmit the form letters from Spectra to the appropriate persons for those persons who had been contacted to provide Spectra the necessary information requested in the form letters. The project managers in Hillsborough County, Gadsden County and Osceola County complained about this practice. They expressed the feeling that Spectra should know the appropriate contact persons to assist Spectra in conducting the environmental assessments or should go to the individual locations and find out who should be contacted. Project managers felt that the task of identifying appropriate persons to assist in carrying out the environmental assessments was as anticipated in the contract between the Agency and Spectra for the years 1993 and 1994. These practices by Spectra were seen by the committee as evidence of the possible inability to make site visits in projects contemplated under the RFP and considered in criterion No. 4. The committee was also concerned that in carrying out the duties under the 1993 and 1994 contracts for environmental assessments Spectra had not always performed site visits required in the projects that they were assigned. On one occasion principals within Spectra, Peter and Christopher Okonkwo, conceded to Robert Ippolito, HOME Program Administrator, that Spectra had not always made the necessary site visits for the projects that it was assigned under the 1993 and 1994 contract with the Agency. By contrast, the Florida Planning Group, another vendor under the 1993 and 1994 HOME contract, in seeking the assistance of others in performing environmental assessments, identified the necessary contacts to provide input concerning the environmental assessments and transmitted form letters to the specific contacts soliciting the needed information. On the other hand, 2.3.5 to the Spectra response to the RFP which graphically represents the persons that would be assigned to conduct the consulting work for the Agency identifies what would appear to be sufficient numbers of employees to conduct the task in places to be served throughout the state. The issue is raised as to whether the prior experience as described between the Agency and Spectra overcomes what on the face of the response to the RFP seems an adequate response to the requirements in criterion No. 3. The prior experience is more persuasive in determining the Agency did not act arbitrarily in assigning 0 points when it made its assessment. Again, Spectra should be allowed to take advantage of the 5 additional points that were assigned to it through the informal process for unspecified reasons. Criterion No. 7 Does the Offeror Have Prior Experience with the Agency? If yes, evaluate the experience. As explained, Spectra had prior experience with the Agency and identified that experience in response to the RFP. The committee determined to award no points for this criterion. Among the reasons for awarding no points was the attempt by Spectra to enroll project managers in the process of gaining necessary information for the environmental assessments that has been discussed in relation to criterion No. 4. As with the circumstance in criterion No. 4, Mr. Ippolito explained that it was common and acceptable to gather information from local project managers or officials related to names and phone numbers of potential contact persons that could assist in performing the environmental assessment. However, according to Mr. Ippolito, that practice should not extend to sending project managers blank form letters and requesting that the project manager identify the persons whom the blank letters should be sent to, have the project managers fill in the names and forward the letters to the contact person for Spectra's benefit. This was the problem the committee saw in its criticisms associated with Spectra's response to criteria Nos. 4 and 7. In association with criterion No. 7, the committee also expressed concern about the past willingness of Spectra to perform functions known as State Clearinghouse Acceptance and legal adds in newspapers, as part of the environmental assessments. This was in association with the 1993 and 1994 contracts. This criticism by the committee was not well-founded. Whether under the terms in the 1993 and 1994 contract to perform environmental assessments for the HOME program Spectra was obligated to provide services related to the State Clearing House Acceptance and legal adds in newspapers was debatable. The Agency eventually convinced Spectra that it should perform those tasks associated with the State Clearing House Acceptance and legal adds in newspapers. To some extent the Agency forgave that requirement to perform. To characterize the nature of the discussions between the Agency and Spectra which led Spectra to perform State Clearing House Acceptance and provide for legal adds in newspapers as an indication that Spectra was reluctant to meet the mandates for performing environmental assessments, or that Spectra could not be counted on or was unwilling to do the two tasks, constitutes an arbitrary act by the Agency. Nonetheless, its other reason for awarding Spectra 0 points for criterion No. 7 when performing the evaluation was sufficient justification. As with criterion No. 4, Spectra is entitled to the five additional points which it was granted through informal settlement discussions.
Recommendation Upon consideration of the findings of fact and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which awards Spectra 10 additional points in total for criteria Nos. 4 and 7 and otherwise denies Spectra relief. DONE and ENTERED this 21st day of October, 1996, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1996. COPIES FURNISHED: Mark T. Mustian, Esquire Gregory T. Stewart, Esquire Maureen McCarthy Daughton, Esquire Harry F. Chiles, Esquire Nabors, Giblin and Nickerson, P.A. 315 South Calhoun Street, Barnett Bank Building, Suite 800 Post Office Box 11008 Tallahassee, FL 32302 Angela Hatcher, Administrator Florida Housing Finance Agency 227 North Bronough Street, Suite 5000 Tallahassee, FL 32301-1329 Peter Okonkwo, President Spectra Engineering & Research, Inc. 345 South Magnolia Drive, Suite E-25 Tallahassee, FL 32301 Stephanie M. Gehres, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, FL 32399-2100 James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, FL 32399-2100 Informational Copies: Florida Planning Group, Inc. 9471 BayMeadows Road, Suite 401 Jacksonville, FL 32256 Genesis Group, Inc. Building 1, Suite 200 820 East Park Avenue Tallahassee, FL 32301 Post, Buckley, Schuh & Jernigan, Inc. 9432 BayMeadows Road, Suite 250 Jacksonville, FL 32256 William H. Bishop Engineers, Inc. 715 North Calhoun Street Tallahassee, FL 32303 Jim Stidham & Associates, Inc. Post Office Box 3547 Tallahassee, FL 32303 Anderson Columbia Environmental, Inc. Post Office Box 1386 Lake City, FL 32056
