Findings Of Fact The Petitioner is the holder of CON No. 1863 authorizing construction of a 120-bed nursing home in Plant City, Hillsborough County, Florida. The original CON was issued November 30, 1981, but due to protracted litigation, the CON was not finally effective until July 1, 1982. In the meantime, an initial conference was held between the CON holder, Palm Court, and the Office of Licensing and Certification on February 23, 1982. As a result of that meeting, preliminary plans for the nursing home were submitted to the Office of Licensure and Certification (OLC) on March 29, 1982. These plans were not approved but comments were suggested concerning HRS' position as to changes to be made. On May 20, 1982, revised preliminary plans were approved subject to comments. On April 11, 1983, final plans were initially submitted for approval. These were received on April 14, 1983 by Respondent HRS. Palm Court received no communication regarding these plans from HRS until June 10, 1983,_at which time they were denied approval with certain "comments and suggestions" attached to the denial communication. While in the process of responding to the June 10, 1983 letter of denial, Palm Court filed for a six month extension of its Certificate of Need's validity period, which was granted by HRS on June 28, 1903. Palm Court thereafter submitted its response to the "denial with comments" on June 30, 1983. On September 6, 1983 HRS communicated with Palm Court informing it that the drawings had been approved subject to additional "comments. The September 6, 1983 comments raised for the first time certain additional new items or matters HRS Plan reviewers were concerned about. The comments raised by HRS on September 6, 1983 were responded to by letter by the Petitioner on September 27, 1983. HRS rejected the proposals contained in the September 27, 1983 response letter on November 1, 1983. Thereafter, on November 28, 1983, after it had received another informal interpretation by HRS of the comments and suggestions in its September 6 letter, Palm Court responded to the November 1st HRS rejection letter. The plans ultimately were not approved by HRS until January 10, 1984. In the meantime, on December 31, 1983, the 18-month period of validity for the petitioner's CON expired. On January 19, 1984, Palm Court received a letter from HRS declaring its CON null and void as of December 31, 1983. All parties acknowledge that Chapter 100-29, Florida Administrative Code applies to the submission and approval of construction plans and that contained in these rules is the incorporation of standard publications which, at the time of Palm Court's plan review, included the "1976 NFPA Life Safety Code." Contained in this Life Safety Code are references to corridors to be contained in nursing home facilities and their descriptions and dimensions. Preliminary plans for Palm Court's project were submitted at a conference on, March 19, 1982. On April 5, 1982 the OLC denied approval of those plans with the "comment, No. A 5," which read "provide a six-foot staff corridor to med-prep." Subsequent to that April 5, 1982 letter of denial, Palm Court resubmitted the preliminary plans, making no change concerning corridors or the med-prep room. These plans were then approved by OLC subject to comment, none of which related to corridors or the med-prep room. No testimony by Petitioner or HRS has explained why comment A-5 was not mentioned either in the resubmittal of Palm Court or the approval with further comments by HRS. Due to litigation contesting Palm Court's CON entitlement and delays surrounding the hearing process, construction plans were not submitted for final approval until April 11, 1983. These plans again contained the layout for the nurses station, med-prep room and corridor as originally submitted March 29, 1982 and preliminarily approved on May 20, 1982. HRS did not respond until June 10, 1983 as mentioned above, at which time it withheld approval with comments. The comments submitted with the June 10, 1983 letter denying approval made no reference to the nurses station, med-prep room or corridor. The Petitioner responded to the June 10, 1983 comments of HRS on June 30, 1983 submitting responses to all comments raised in HRS' June 10, 1983 letter of denial. On September 6, 1983, more than 60 days after Petitioner's response of June 30, OLC responded to Petitioner's June 30, 1983 letter, this time granting conditional approval of Petitioner's final construction plans, subject to "comments." The September 6, 1983 letter however, contained a section labeled "new comments", one of which was "A-17." Comment A-17 stated: "Provide 6'-0" circulation space to Med Prep room in addition to space required to work behind nurses station. Revise plan as required. . ." Comment A-17 contained no reference to comment A 5 which had been contained in the April 5, 1982 letter from OLC to Petitioner. Comment A-17 contained no reference to any area on the drawings, HRS rules, or the 1976 Life Safety Code. Mr. Levin, the Petitioner's architect and drafter of Petitioner's plans, made numerous attempts to contact personnel at OLC after the September 6, 1983 letter to learn what would be required to satisfy comment A-17. He was given to understand that only an explanation of the med-prep room was required to satisfy comment A-17. He learned that in a conversation with Mr. Joseph Alcure of the OLC. Mr. Levin also informed Mr. Alcure that an exact duplicate of the plans had already been submitted and finally approved without comment to construct a similar nursing home in New Port Richey, Florida. The New Port Richey facility was nearly completed as of the time of this hearing. In spite of Petitioner submitting a response on September 27, 1983 referring to the fact that the New Port Richey facility had already been approved with a duplicate set of plans, on November 1, 1983 the OLC again gave petitioner only conditional approval with comments again, including comment A-17, without definitive explanation. The reassertion of comment A-17 in the November 1, 1983 conditional approval letter was as follows: "Respond correctly to the previous comments. 6'0" is required in addition to the required 100 square foot nurses station." Petitioner's architect, Mr. Levin, again made repeated attempts at clarification of what this meant. He eventually was contacted by OLC's architect, John DeLoe, on or about November 21, 1983. Mr. DeLoe finally explained the problem to which he had been referring, namely that he interpreted the Life Safety Code (which all parties agree is applicable to the issues and facts of this case) to mean that the space behind the nurses station "counter" was corridor or exit access because the med prep room was required to open onto a six-foot corridor. Mr. DeLoe suggested that the problem could be solved by reversing existing plans to the extent that the nurses lounge and the med prep rooms would be exchanged in the positions they occupied on the plans and ultimately as they would be built. The Petitioner made the suggested revisions and submitted the final set of plans incorporating this change on November 28, 1983. The OLC finally approved that November 28, 1983 submission without comment on January 10, 1984. There was significant confusion between the Petitioner and HRS as to what the comment concerning the six-foot corridor space, into which the med-prep room was required to open, actually required. There was conflicting testimony by representatives of both petitioner and Respondent concerning the application of the Life Safety Code to the condition referred to by OLC as "A-5" in the April 5, 1982 letter and "A-17" in the letters dated September 6, 1983 and November 1, 1983, concerning the "flip-flop" of the med-prep room's location and the nurses lounge location. The provisions of the Life Safety Code raised by the petitioner and Respondent are vague and it is difficult to determine whether the six-foot requirement actually exists. Mr. Bruce Sharp, project manager for the construction of Palm Court Nursing Center, testified on behalf of petitioner. Mr. Sharp moved to St. Petersburg, Florida in August, 1983 to manage the development of the project. Mr. Sharp began taking bids and doing visual site work immediately after his arrival at the construction site. As a result of engineering studies performed, he determined that the site was too low in elevation, which could cause flooding. Because of this, on or about October 29, 1983, another site was selected at which Mr. Sharp continued his work of selecting subcontractors and vendors to develop the project. Mr. Sharp did not have to begin work entirely anew, however, and engineering previously performed was transferred to the new site to the extent applicable. Because of the higher elevation at the new site, it was far more suitable for the project than the original site had been. As part of his site preparation, Mr. Sharp had numerous discussions concerning acquisition of a building permit for the project from the Plant City Building Department. These discussions began in mid-September, 1983 and continued until a foundation permit ultimately was secured on December 29, 1983. Initially the Building Department was reluctant to issue the permit because of the proposed municipal annexation and improper zoning of the new building site. These problems were resolved on or about November 1, 1983. Mr. Sharp, at that point, could have taken an approved set of construction plans to the Plant City Building Department for their review and could have had a permit issued. However, he did not yet have an approved set of plans from HRS. Thus, the Plant City Building Department refused to issue any type of building permit at that time. Upon failing to get a full building permit because he did not yet have an approved set of construction plans, Mr. Sharp attempted to obtain a foundation permit so that he could operate within the local building code and commence construction and thus be able to comply with his 18-month deadline with HRS. Efforts to obtain a foundation permit from the Plant City Building Department were not initially successful, but finally, after a great deal of difficulty, he was able to obtain a "foundation only" construction permit, after he was able to convince the director of the Building Department that an approved set of construction plans was imminently forthcoming from HRS. In the meantime, Mr. Sharp had tentatively scheduled a subcontractor to pour concrete and commence construction prior to December 31, 1983. The concrete could not legally have been poured prior to December 29, 1983 because the foundation permit (nor a full building permit) had not been secured before that date. Between December 29, 1983 and December 31, 1983, concrete could not actually have been poured because of the physical condition of the site having deteriorated due to severe rains. Concrete was eventually poured on January 10, 1984 and continuous construction work was performed until and including January 19, 1984 when the OCMF notified the principals of the project that the CON was considered "terminated." There is no question that the building permit could have been obtained from the Plant City Building Department and the necessary concrete and steel could have been erected to conform with the statutory definition of "commence construction" prior to December 31, 1983 if the Building Department could have been supplied plans approved by the Office of Licensure and Certification "without comment." The dispute concerning the OLC approval of the plans concerned the location of the med-prep room and the nurses lounge. If the Petitioner could have obtained a permit from Plant City to pour the foundation based on the construction plan "approved subject to" comment A-17, then later was required to flip-flop the two rooms, several problems would have arisen. This would not be merely a cosmetic change. If the Petitioner had obtained a building permit from the Plant City Building Department based on construction plans approved subject to that comment and then later was required to actually flip-flop the two rooms, the concrete slab involved would have to be removed, the electrical work removed and the plumbing removed. Concrete would be removed in order to relocate a doorway into a corridor and to relocate certain engineered structural posts required to bear the weight of the four-ton air conditioning unit on the roof. The electrical wiring would have to be reworked since the decision had been made, pursuant to an option in the project 7 specifications, to locate the wiring underground in the interest of limiting electrical exposure to patients. The plumbing would require removal which also involves destroying the concrete slab in order to reinstall the plumbing for the changed location of the two rooms. The air conditioning unit was shown to be most efficient when located above the nurses station because that permits locating the monitor or thermostat in close proximity to the nurses station and away from the patient corridor. The Respondent HRS presented, through Mr. Richard Rosenvold, its architect supervisor, an informal, unpublished non-rule policy to the effect that an applicant can request a letter from HRS authorizing the issuance of a "foundation only" permit and that this would be in compliance with the statute cited above. Admittedly, however, constructing under such a "foundation only" permit would be at the applicant's peril if the conditional comments of HRS, when ultimately complied with, would affect the structural foundation of the building. There is no question that the comment A-17 concerning the "flip-flop" of the two rooms clearly affected the foundation, the electrical and plumbing installations and so forth. Inconsistent interpretations of the Life Safety Code provisions, together with the ambiguous comments themselves, put the petitioner in an uncertain position regarding the wisdom of proceeding with construction even if it could have obtained a foundation permit. A foundation permit is not the same as a building permit. A building permit authorizes construction of the entire facility while a foundation permit only authorizes approval of the foundation or concrete and steel protruding from the ground of the site. Mr. Eugene Nelson, the Administrator of the Office of Community Medical Facilities (OCMF), testifying concerning agency policy and practice, knows of no prior case where issuance of a foundation permit has been held to fulfill the requirement of the definition of "commencement of construction" enunciated in the above statute. If the petitioner had received a foundation permit and been able to pour concrete prior to December 31, 1983, it could not have maintained continuous activity on the site, which is another requirement of the definition of "commencement of construction." A full building permit would be required to actually conduct continuous activity on the site culminating in the erection of the structure. In all likelihood, if Petitioner had relied upon Mr. Rosenvold's enunciated policy concerning a request for a letter authorizing issuance of a foundation only permit and then had obtained a foundation permit in reliance thereon and proceeded to the point of pouring the concrete slab prior to resolving the issue about the corridor and room location and dimensions, then the Petitioner would have run the risk of having to tear out part of the foundation slab because of Mr. DeLoe's suggested change. This would have placed an absurd burden on the Petitioner, merely in the interest of ensuring compliance with the 18-month deadline, especially in view of the Petitioner's good faith effort otherwise, in the course of its preparation and development of the project, to comply with that deadline. Such a course of action would have defeated the cost containment purpose behind enactment of Chapter 381, Florida Statutes. In summary, the CON holder here accomplished substantially all of the "indicia of construction", accepted in the construction industry as establishing the point when construction begins, prior to December 31, 1983. Financing was arranged, site preparation was arranged, initial site development work had begun several months before that date and, in essence, the only remaining hurdles to overcome in order to actually pour concrete were the lack of a building permit and the lack of unconditional approval of the final construction plans because of the events discussed above. It was not shown to be entirely the fault of the CON holder, the Petitioner, for failing to obtain its building permit so that it could timely start physical construction on the site before December 31, 1983, inasmuch as the building permit was denied Petitioner because of HRS' failure to approve the plans on a timely basis.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, hereby RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services providing that Certificate of Need No. 1863 for a 120- bed nursing home in Plant City, Florida, remain valid and in full force and effect. DONE and ORDERED this 18th day of December, 1984, in Tallahassee, Florida. R. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1984. COPIES FURNISHED: Robert S. Cohen, Esquire Post Office Box 669 Tallahassee, Florida 32302 Douglas L. Mannheimer, Esquire Post Office Drawer 11300 Tallahassee, Florida 32302-3300 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact In April of 1977, Respondent contracted to purchase approximately four and one-half acres of land in Pinellas County, Florida on which it sought to develop a 120-bed nursing home. In May, 1977, Respondent filed an application for a Certificate of Need pursuant to the provisions of Section 381.494, Florida Statutes. The certificate was issued on August 8, 1977 by Petitioner to Respondent for the proposed 120-bed nursing home. The certificate provided on its face that it would terminate on August 8, 1978, " . . . with renewal possible only if applicant clearly demonstrates positive construction efforts." In addition, a cover letter forwarded to Respondent by Petitioner with the certificate indicated that the termination date " . . . is extendable provided you can demonstrate as of that date, positive action toward project accomplishment." Prior to receiving the certificate, Respondent retained an architect to prepare plans and specifications for the nursing home, and had made preliminary efforts to obtain financing for the construction of the facility. After issuance of the certificate, Respondent and his architect met with Petitioner's architect to submit schematic drawings for review. Respondent's schematic drawings were approved by Petitioner on August 31, 1977. When Respondent's initial efforts to obtain financing failed, further financing was sought unsuccessfully in Indiana and in Pinellas County, Florida. Respondent's efforts to obtain financing on its own continued to be unsuccessful. As a result, Respondent retained a mortgage broker to attempt to locate an institution to advance the money to construct the project. Public financing through the sale of municipal bonds was attempted, but failed when the City Commission of Safety Harbor, Florida voted against the bond proposal. Subsequently, in June of 1978, after some nine months of continuous attempts to locate an institution to finance construction of the facility, Respondent secured a loan commitment for the project at a cost to Respondent of $13,000. After obtaining the loan commitment, Respondent contacted its architect and requested that he proceed with preparation of plans and specifications for the preliminary and final stages of the project. The architect had ceased his efforts in this direction on Respondent's instructions after approval of the schematic drawings in August of 1977, because it was felt that further efforts in this regard would be imprudent in the absence of a commitment for financing construction of the project. When Respondent's architect attempted to contact the architect for Petitioner to set up a meeting on June 24, 1978, he discovered that Petitioner's architect would not be available for consultation until the following month. When a meeting was finally arranged for July 24, 1978, Petitioner's architect insisted on certain time-consuming changes in the schematic drawings. However, Respondent's architect indicated that had Petitioner's architect advised him on July 24, 1978 that the final plans were required to be filed by August 8, 1978, he could have accomplished the preparation of those plans and specifications by that date. In any event, the changes in the plans and specifications required by Petitioner's architect as a result of the July, 1978 meeting were completed and submitted to Petitioner on the day prior to hearing in this cause, well after the certificate expired on August 8, 1978. These plans contain much of the data customarily found in final construction plans, but Petitioner obviously had not had sufficient time to conduct an in-depth review of those plans prior to the hearing. In any event, Respondent's architect indicated that final construction plans could be completed in no more than two weeks, and that actual construction could begin within two to three days from Petitioner's approval of final construction plans. By letter dated August 4, 1978, Petitioner advised Respondent that its certificate would expire on August 8, 1978 and that a six-month extension might be granted if requested, and if the following four criteria had been met: "1. If applicable, has a site been firmly secured? Has firm financing been secured? Have final construction plans and speci- fications for the project been submitted for review by the Bureau of Health Facilities? Can it reasonably be expected that the project can be under construction within the requested additional time?" Respondent, through its President, testified that it had never been advised by Petitioner that all four of these criteria would have to be met in order to obtain a six-month extension of the certificate. In fact, Respondent apparently relied on the wording in the certificate itself that an extension would be possible " . . . only if applicant clearly demonstrates positive construction efforts . . .", and the language of the covering letter from the Administrator of the Office of Community Medical Facilities which indicated that the expiration date of the certificate would be extendable upon a showing of " . . . positive action toward project accomplishment." By letter dated August 4, 1978, to the Director of the Office of Community Medical Facilities, Respondent requested an extension of its certificate. As grounds for this extension, Respondent advised Petitioner that its earlier unsuccessful attempts to obtain financing had caused inordinate delay in preparing to begin construction of the facility. In fact, in Petitioner's six-month review of the status of Respondent's certificate, Respondent informed Petitioner on March 20, 1978, that it had been unable to procure permanent financing. Subsequently, on June 6, 1978, Respondent informed Petitioner that it had obtained the necessary financing, and furnished a copy of the commitment letter from the Community Bank of Seminole, Florida, to Petitioner. As further justification for an extension of its certificate, Respondent advised Petitioner that as a result of a change in criteria by the City of Clearwater, Florida, an impact study which it was required to submit to the city had to be revised, thereby causing a delay in rezoning the property which it had acquired for construction of the facility a Respondent further advised Petitioner in its August 4, 1978 letter that its working drawings for the facility were fifty percent complete, and that it expected to begin construction by November 1, 1978. Petitioner contends that Respondent's certificate should be revoked, and that the requested extension should not be granted because Respondent has not firmly secured a site for the facility; has not secured firm financing; has not submitted final construction plans and specifications for review; and that, as a result, it cannot reasonably be expected that the project can be under construction within the requested additional time. Respondent's contract to purchase the land on which the facility is to be constructed contains a provision that the purchase of the property must be concluded on or before October 15, 1977. This provision of the contract was not performed by October 15, 1977. However, testimony established that Respondent and the sellers of the property have continued through the present time a joint effort to obtain rezoning of the land to allow construction of the facility. Consequently, the parties have apparently, as between themselves, agreed not to consider the October 15, 1977, closing date binding. The land purchase contract also contains a contingency which would relieve Respondent from its obligation to purchase the property should it be unable to obtain a rezoning of the parcel to an RM-28 zoning classification. Although evidence introduced at the hearing indicates that the local government might not be agreeable to rezoning the property to RM-28, there is nothing in the record to indicate that the facility might not be constructed on the property should it be rezoned to a different classification. Further, the contingency in the contract for rezoning to RM-28 was obviously intended for the benefit of Respondent, and Respondent would, therefore, be free to waive that requirement should the facility be allowed to be constructed on the property in a different zoning classification. Although final construction plans have admittedly not been filed with Petitioner for review, the evidence is uncontradicted that this failure was due to a combination of the Respondent's inability to obtain financing, and Petitioner's architect's unavailability to consult with Respondent's architect following issuance of the loan commitment. In addition, evidence of record is also uncontradicted to the effect that final construction plans could be submitted within two weeks after granting of an extension of the certificate, and that construction on the project could commence within two to three days after approval of the final plans and specifications. Respondent's mortgage loan commitment contains requirements that necessary rezoning of the property be obtained by September 1, 1978, and that the commitment in its entirety expires on September 15, 1978. However, Respondent's Predisent testified that he had obtained a 60-day extension of this commitment. In any event it appears that the loan commitment was in existence and effective as of the date of the expiration of the certificate and the date on which Petitioner issued its Administrative Complaint.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Health and Rehabilitative Services, denying the relief sought in the Administrative Complaint against Respondent, Shive Nursing Centers of Florida, Inc., and that Respondent's certificate be extended by the Department for a period of 6 months from the date of final agency action in this cause. RECOMMENDED this 14th day of December, 1978, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Steven W. Huss, Esquire Building 1, Room 310 1323 Winewood Boulevard Tallahassee, Florida 32301 John T. Blakeley, Esquire 911 Chestnut Street Post Office Box 1368 Clearwater, Florida 33517
The Issue This is a bid protest proceeding arising from the School Board's notice that it intends to reject all bids. The Petitioner, one of the bidders on the subject project, asserts that rejection of all bids would be illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact 1. In their Joint Pre-Hearing Stipulation the parties stipulated to the following facts, which they agreed could be taken as established without the need for further proof.? School Board Policies and Approved Design-Build Evaluation Procedures 1. A true and correct copy of School Board Policy 3320 concerning "Purchasing Policies" is submitted as Joint Exhibit 1. School Board Policy 3320 was adopted by SBBC's [the School Board of Broward County] governing board in the exercise of its rule-making authority and was last revised on September 7, 1993. 2. A true and correct copy of School Board Policy 7009 concerning Award of Design-Build Contracts is submitted as Joint Exhibit 2. School Board Policy 7009 was adopted by SBBC's governing board in the exercise of its rule-making authority on January 17, 1995. 3. A copy of SBBC's typical Document 00100 "Instructions - Request for Proposal" is submitted as Joint Exhibit 3. Invitation to Bid No. 21-174T 4. On or about September 15, 2000, SBBC advertised Invitation to Bid No. 21-174T ("IM") entitled "Concession Building (Design-Build) for Coral Springs High School." A copy of the ITB is submitted as Joint Exhibit 4. 5. Invitation to Bid No. 21-174T was not submitted by district staff to SBBC's governing board for approval prior to its issuance to the public. 6. SBBC had an open contract with Williams Engineering. Joint Exhibit 33. Williams was authorized by an SBBC project manager to proceed under its open contract with schematic design, design development, construction documents, construction contract administration and warranty services under the open contract for "Project 1151-99-03" which had the Project Title "Track Drainage, Grading, Concession Building Water, Sewer & Walkways, Driveway Relocation; Campus Site Master plan." Said project was to occur at Coral Springs High School- Joint Exhibit 32. 7. %ITB No. 21-174T contained the design criteria package prepared by Williams Engineering. The design criteria package for the subject project was not submitted to or approved by SBBC's governing board prior to issuance of ITB No. 21-174T. 8. No request for proposals (RFP) was issued by SBBC to solicit competitive proposals from qualified design-build firms for the design criteria package for the subject project. Instead, SBBC issued an ITB containing the design criteria package. The SBBC did not revise the ITB by addendum to become a RFP at any time prior to the opening of bids for this procurement. 9. The SBBC's governing board never approved the criteria, procedures and standards for the evaluation of ITB No. 21- 1741. 10. ITB 21-1741 did not include provisions for award that would require the Superintendent of Schools to recommend to SBBC's governing board not less than three design-build firms as the most qualified for this procurement. 11. ITB 21-1741 did not include provisions for award under which SBBC's governing board would interview the three finalists for the project and to award a contract for the project to one or more of said firms. Addenda 1, 2 and 3 12. Three addenda were issued by SBBC regarding Bid 21-1741. Addendum No. 2 was labeled as "RFP 21-1741." Addendum No. 3 was issued on September 28, 2000 and changed the reference in Addendum No. 2 from "RFP 21-1741" to that of "Bid 21-1741" and changed the bid posting date to October 11, 2000 at 3:00 pm. Joint Exhibits 5, 6 and 7. Post-Submittal Activities. 13. Pursuant to the ITB, SBBC opened bids for Bid 21-1741 on October 10, 2000. Joint Exhibit 4 at Page 1. Responses to the ITB were submitted by Petitioner BT Builders, Inc.; C.G.R Construction Company, Incorporated; and R.L. LaRoche, Inc. Joint Exhibits 8, 9 and 10. 14. The bid proposal submitted by C.G.R Construction Company, Inc., at the bid opening consisted of a cost proposal and was not accompanied by any drawings or specifications. Drawings for the project were presented to SBBC by C.G.R Construction Company, Inc., during SBBC's Meeting of November 9, 2000. 15. On or about October 11, 2000, SBBC posted an intended recommendation under the ITB for award of a contract to Petitioner BT Builders, Inc. The posted recommendation also recommended rejection of the bid of C.G.R. Construction Company, Incorporated for a failure to submit a package comprised of documents (including drawings, specification materials, narratives and other materials) responding to the Design Criteria Package. Joint Exhibit 11. 16. At the time of the October. 11, 2000 posting, the proposals submitted under Bid 21-174T had not been submitted to SBBC's governing board for evaluation or to SBBC's Consultant's Review Committee ("CRC'). Any review of the proposals made at this point was conducted by staff within SBBC's Facilities Department. 17. On or about October 13, 2000, C.G.R. Construction Company, Incorporated notified SBBC that the procedures being followed in this procurement were not in compliance with Section 287.055(10), Florida Statutes. This notification was presented to SBBC by C.G.R. in a document that characterized itself as "a formal written protest." Joint Exhibit 12. 18. On or about October 16, 2000, SBBC’'s Purchasing Department notified the proposers that the Recommendation/Tabulation that had been posted on October 11, 2000 had been withdrawn. Proposers were notified that a new date for posting a recommendation would be November 10, 2000 at 3:00 pm. Joint Exhibit 14. A subsequent notice informed the proposers that the new date for posting a recommendation would be November 13, 2000 at 3:00 pm. Joint Exhibit 15. 19. On or about October 19, 2000, SBBC's Facilities and Construction Management Department ("the Department") notified proposers under Bid No. 21-174T that SBBC's Consultant's Review Committee ("CRC') would consider the proposals for short-listing on November 2, 2000 at 3:00 pm. Proposers were further notified that, if a firm was short-listed by the CRC, the firm would make a presentation to SBBC's governing board on November 9, 2000 and that SBBC's governing board would make the final selection of proposers at that meeting. Joint Exhibit 13. 20. On November 2, 2000, SBBC's Consultant's Review Committee ("CRC") met and short-listed the proposals submitted for Bid No. 21-1-74T. A binder of materials regarding the project was delivered to SBBC staff by C.G.R Construction Company, Inc. on November 2, 2000, but was not distributed by SBBC staff to the CRC. The CRC short-listed all three proposers for consideration by SBBC's governing board. 21. The Department notified the proposers that interviews of the short-listed proposers would be conducted by its governing board on November 9, 2000. Each proposer was able to be present for each of the presentations made before SBBC's governing board. Joint Exhibit 16. 22. At a public meeting conducted on November 9, 2000, the governing body of SBBC considered the proposals submitted in response to Bid No. 21-174T and selected C.G.R. Construction Co., Inc., for award of a design-build contract. Joint Exhibits 17, 18 and 19. 23. On November 13, 2000, SBBC posted an intended recommendation under the ITB for award of a contract to C.G.R. Construction Co., Inc. Joint Exhibit 20. 24. On November 13, 2000, Petitioner BT Builders, Inc., filed with SBBC's Purchasing Department a notice of intent to protest regarding the proposed award of a contract to C.G.R. Construction Co., Inc., under Bid No. 21-174T. Joint Exhibit 21. 25. On or about November 20, 2000, Petitioner BT Builders, Inc., filed with SBBC's Purchasing Department its formal written protest of the proposed award of a contract to C.G.R. Construction Co., Inc., under Bid No. 21-174T. Joint Exhibit 22. 26. On December 4, 2000, a Committee designated by SBBC conducted a meeting with the Petitioner BT Builders, Inc. in order to provide an opportunity to resolve the protest by mutual agreement in accordance with Section 120.57(3) (d), Florida Statutes and School Board Policy 3320. During this meeting, it was argued by SBBC's staff that the terms and conditions of Bid No. 21-174T were not in material compliance with the procedures described in Section 287.055(10), Florida Statutes, and Rule 4.1(7) of the State Regulations for Educational Facilities ("SREF") or with School Board Policy 7009 ("Awarding of Design-Build Contracts"). The Committee voted that the recommendation to award a contract to C.G.R. Construction Co., Inc., should be rescinded and that a new recommendation should be posted for the rejection of all bids. Joint Exhibit 23. 27. On or about December 12, 2000, SBBC posted a Revised Recommendation/Tabulation that "the award to C.G.R. Construction be rescinded, and that all bids received be rejected, in accordance with School Board policy and procedures." Joint Exhibit 28. 28. SBBC notified BT Builders, Inc., that the school district considered the formal written pretest filed on or about November 20, 2000 to have been rendered moot by the Revised Recommendation/Tabulation which rescinded the former intended action and stated that a recommendation for rejection of all bids would be made. Joint Exhibit 24. 29. On December 15, 2000, BT Builders, Inc. filed with SBBC's Purchasing Department its notice of intent to protest regarding the proposed rejection of all bids. BT Builders also continued to protest the prior recommendation to award to C.G.R. Construction Co., Inc. Joint Exhibit 29. 30. On January 2, 2001, BT Builders, Inc. filed with SBBC's Purchasing Department its formal written protest regarding the proposed rejection of all bids. The formal written protest also continued to protest the earlier recommendation to award to C.G.R. Construction, Co., Inc. Joint Exhibit 30. Due to the closure of the school system for winter holiday recess, the filing of the formal written protest on January 2, 2001, was timely and occurred on the first business day following winter holiday recess. 31. SBBC scheduled a meeting with BT Builders, Inc., for January 12, 2001 to provide an opportunity to resolve the protest by mutual agreement in accordance with School Board Policy 3320 and Section 120.57(3) (d), Florida Statutes. That meeting was cancelled upon notification from BT Builders' attorneys that the protest was withdrawn. BT Builders subsequently informed SBBC that their attorneys had not been authorized to withdraw the protest or cancel the meeting. A new meeting date was then scheduled by SBBC. 32. On January 17, 2001, SBBC conducted the rescheduled meeting with Petitioner BT Builders, Inc. in order to provide an opportunity to resolve the protest by mutual agreement in accordance with Section 120.57(3) (d), Florida Statutes, and School Board Policy 3320. During this meeting, the parties were unable to resolve the protest by mutual agreement. Joint Exhibit 31. 33. On January 22, 2001, BT Builders, Inc. requested the referral of its formal written protest to the Florida Division of Administrative Hearings. 34. SBBC is proceeding to build the improvements that were the subject of this procurement through the use of its own personnel instead of seeking construction services from an outside vendor.
Conclusions For Petitioner: Thomas J. Ricci, Vice-President BT Builders, Inc. 1773 Blount Road, Suite No. 303 Pompano Beach, Florida 33069 For Respondent: Robert Paul Vignola, Esquire Broward County School Board K.C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case dismissing the petition and denying all relief requested by the Petitioner. 18 DONE AND ENTERED this 24 “aay of June, 2001, in Tallahassee, Leon County, Florida. co yy Lllidtt ; Sue MICHAEL M. PARRISH 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 2 q day of June, 2001.
Findings Of Fact On October 30, 1981, Petitioner applied for a CON to establish an ambulatory surgical center in an existing building it owned at 5975 Southwest Eighth Street, Miami, Florida. Petitioner had operated a free-standing ambulatory surgical center at that location since January, 1979. It sought a CON (a prerequisite to obtaining a license from DHRS) in order to serve Medicare and Medicaid patients. (R-1, R-2) On February 19, 1982, after receiving additional information and holding a public hearing on the application, DHRS issued CON No. 1956, authorizing the requested ambulatory surgical center, at a cost of $278,000. The first page of the CON designated February 18, 1983, as the "Termination Date." (R-9) The second page of the CON provided Petitioner with actual notice of the statute and rule governing expiration and extension of CONs: A Certificate of Need shall terminate 1 year after the date of issuance unless the appli- cant has commenced construction, if the project provides for construction, or in- curred an enforceable capital expenditure commitment for projects not involving con- struction, or unless the certificate of need validity period is extended by the Department for an additional period of up to 6 months, upon showing good cause by the applicant for the extension. The Department shall monitor the progress of the holder of the certificate of need in meeting the timetable for project development specified in the application and may revoke the certificate of need after consideration of recommendations of the health systems agency, if the holder of the (R-9) certificate of need is not meeting such timetable and is not making a good faith effort to meet it. Rule 10-5.13(2)[sic] Florida Adminis- trative Code, states: An applicant desiring a 6 months validity extension to a certificate of need shall submit such request to the Department, in writing; not later than 15 days prior to the certificate termination date providing docu- mentation of good cause upon which such request is based. Good cause by the appli- cant in support of a request [sic) for a validity time period extension is documenta- tion that each of the following has been satisfied: If applicable a site has been firmly secured. Project financing has been firmly se- cured. For projects involving construction, final construction plans for the proposed project have been submitted for review by the Office of Licensure and Certification of the Department unless the applicant can document that the submission of such final construc- tion plans for review was precluded by cir- cumstances beyond his control. For projects not involving construction, the applicant has been - precluded from incur- ring an enforceable capital expenditure commitment by factors beyond his control. After granting the CON, DHRS set up a routine monitoring schedule with specific dates (4, 8, and 12 months from issuance of the CON) by which Petitioner was to submit status reports on the proposed project. (R-10) By letter dated June 4, 1982, DHRS asked Petitioner to complete and return the first monitoring report on the project. Petitioner completed and returned the report on June 28, 1982. (R-10) On September 29, 1982, officials (including a medical facilities architect) from DHRS' Office of Licensure and Certification, Plans and Construction Section, located in Jacksonville, Florida inspected Petitioner's facility. By letter dated February 1, 1983, George E. Hapsis, the medical facilities architect informed Petitioner that "[the building was found to contain many deficiencies that in its present state would prevent licensing by the state." (R-10) He then identified 102 separate deficiencies and asked to be notified when they were corrected. On February 18, 1983 (the expiration or termination date of CON No. 1956); HRS' Office of Community Medical Facilities (which processes CONs), received Petitioner's request for an extension of CON No. 1956. The reasons given were that Petitioner had recently received the results of the site inspection and needed additional time to comply with DHRS' recommendation. It also advised DHRS that "[i]n the very near future, you will receive new plans of all necessary construction and remodeling to fully meet requirements. " (R-10) DHRS agreed to the request. By letter dated February 23, 1983, it grant a six-month extension of CON No. 1956, setting a new termination date of August 18, 1983, and warned Petitioner: Please be advised that the project must be under physical and continuous construction prior to the new termination date to have a valid and continuing Certificate of Need. (R-9) On July 18, 1983 (17 months from issuance of the CON and one-month prior to expiration to the six-month extension), DHRS sent Petitioner a request for specific information. The request reminded Petitioner of the August 18, 1983 termination date; referenced the provisions of Chapter 381 (concerning expiration of CONs if construction not commenced within 12 months, and authorizing an extension of up to six months); and asked for information on whether construction, if any was involved, had commenced. "Commenced construction" was explained as initiation of continuous construction activity beyond site preparation, associated with erecting or renovating a health care facility. If no construction was involved, DHRS asked for documentation as to whether enforceable capital expenditure commitments had been made for the project. By letter dated July 28, 1983, Petitioner replied to DHRS' request; stating that most of the 102 deficiencies were minor and "being worked on" and that, as to the other DHRS recommendations, "a few alterations and an addition are necessary, also we are working on it step by step." (R-10) Petitioner asserted that it was unable to submit the exact cost of the proposed work and that it deserved an extension of its CON. On August 15, 1983, three days before the final termination date of CON No. 1956, DHRS received a letter from Petitioner, asking, once again, for an extension of its CON. It stated that it was "doing some work" on the inspection recommendations, buying equipment, and working with the City of Miami regarding zoning. (R-10) On September 27, 1983, Nathaniel W. Ward, Jr., a medical facilities. consultant with DHRS, replied to Petitioner's letter: Please excuse our delay in answering your letter of August 12, 1983. It was placed in the file as a determination was made that you did not need an extension. If you have commenced [sic] construction at the end of the one-year period, then you will continue to have a valid Certificate of Need as long as you continue to construct to license the facility. (R-10) (Mr. Ward was apparently unaware of or overlooked, the fact that Petitioner had already been granted a six-month extension of its CON; under Section 381.494(8)(f), Florida Statutes, no further extension could have been granted. Further evidence of Mr. Ward's misapprehension was his statement that if construction had commenced at the end of the one-year, the CON would continue to be valid. If construction had indeed, commenced at the end of the one-year period, the original six-month extension would have been unnecessary.) Subsequently, Petitioner submitted preliminary construction drawings to DHRS' Office of Licensure and Certification in Jacksonville, which reviews preliminary drawings, makes recommendations prior to submittal of final drawings, and licenses health care facilities. After review of the preliminary drawings, that office gave Petitioner extensive comments on the drawings and withheld approval. As of May 2, 1984, Petitioner's preliminary drawings had not yet been approved by DHRS and no final construction drawings for the proposed facility had been received by the Office of Licensure and Certification. On May 16, 1984, nine months after the final termination date of CON No. 1956 (including the six-month extension), Wayne McDaniel, CON Monitoring Supervisor for DHRS, and Keith Matherene, a medical facilities consultant, inspected the site of the proposed facility. During their two-hour site visit, Vincent Pino, owner of corporate Petitioner, admitted that he (Petitioner) had, as yet, made no modifications to the existing structure since he had decided to redesign the project and had submitted new plans to the Office of Licensure and Certification. There was no evidence of any physical modifications having been made to the existing structure. Before leaving, Mr. McDaniel told Mr. Pino he would be given several days to provide written information on any extenuating circumstances which might explain the delay in construction. By letter dated June 7, 1984, after having received no response from Petitioner, DHRS declared CON No. 1956 null and void for noncompliance with Section 381.493(3)(g), Florida Statutes. Petitioner's failure to commence construction was due at least in part, to its unsuccessful efforts to obtain additional parking space for the proposed facility. Additional parking space was a zoning requirement which had to be met before a building permit could be issued. Petitioner signed contracts with two nearby landowners in an attempt to gain the necessary parking space, but the landowners failed to perform. After receiving DHRS' June 7, 1984 notice, Petitioner suspended its efforts to obtain additional parking.
Recommendation Based on the foregoing, it is RECOMMENDED: That DHRS enter a final order declaring CON No. 1956 null and void for failure to satisfy statutory and rule criteria for its continuing validity. DONE and ORDERED this 22nd day of August, 1985, in Tallahassee Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1985.
The Issue Whether Petitioner's challenge to the failing grade he received on the contract administration portion of the October 2000 General Contractor Examination should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner sat for the contract administration portion of the Florida certification examination for general contractors administered in October 2000 (Contract Administration Examination). The Contract Administration Examination consisted of 60 multiple-choice questions of equal value, worth a total of 100 points. To attain a passing score on the Contract Administration Examination, candidates needed to receive a total of 70 points. Of the 378 candidates who took the Contract Administration Examination, 156 received passing scores. Petitioner was not among this group of successful candidates. He received a failing score of 66.67 on the examination. Question 2 of the Contract Administration Examination was a clear and unambiguous multiple-choice question that required the candidate to determine, based upon the information given, on what workday (not calendar day) the pouring of concrete footings for a residential construction project would begin. There was only one correct answer to this question. Approximately 50 percent of the candidates chose this correct response. Petitioner chose another answer that was clearly incorrect because it represented the calendar day (not the workday) on which the pouring would begin. He therefore appropriately received no credit for his answer. Question 9 of the Contract Administration Examination was a clear and unambiguous multiple-choice question that fairly tested the candidate's knowledge of the requirements of Section 489.113(3), Florida Statutes, which provides as follows: A contractor shall subcontract all electrical, mechanical, plumbing, roofing, sheet metal, swimming pool, and air- conditioning work, unless such contractor holds a state certificate or registration in the respective trade category, however: A general, building, or residential contractor, except as otherwise provided in this part, shall be responsible for any construction or alteration of a structural component of a building or structure, and any certified general contractor or certified underground utility and excavation contractor may perform clearing and grubbing, grading, excavation, and other site work for any construction project in the state. Any certified building contractor or certified residential contractor may perform clearing and grubbing, grading, excavation, and other site work for any construction project in this state, limited to the lot on which any specific building is located. A general, building, or residential contractor shall not be required to subcontract the installation, or repair made under warranty, of wood shingles, wood shakes, or asphalt or fiberglass shingle roofing materials on a new building of his or her own construction. A general contractor shall not be required to subcontract structural swimming pool work. A general contractor, on new site development work, site redevelopment work, mobile home parks, and commercial properties, shall not be required to subcontract the construction of the main sanitary sewer collection system, the storm collection system, and the water distribution system, not including the continuation of utility lines from the mains to the buildings. A general contractor shall not be required to subcontract the continuation of utility lines from the mains in mobile home parks, and such continuations are to be considered a part of the main sewer collection and main water distribution systems. A solar contractor shall not be required to subcontract minor, as defined by board rule, electrical, mechanical, plumbing, or roofing work so long as that work is within the scope of the license held by the solar contractor and where such work exclusively pertains to the installation of residential solar energy equipment as defined by rules of the board adopted in conjunction with the Electrical Contracting Licensing Board. No general, building, or residential contractor certified after 1973 shall act as, hold himself or herself out to be, or advertise himself or herself to be a roofing contractor unless he or she is certified or registered as a roofing contractor. There was only one correct answer to this question. Approximately 65 percent of the candidates chose this correct response. Petitioner chose another answer that was clearly incorrect inasmuch as a newly licensed general contractor is not free, pursuant to Section 489.113(3)(b), Florida Statutes, to install or repair wood shake roofs on existing buildings constructed by other contractors. Petitioner therefore appropriately received no credit for his answer. Question 29 of the Contract Administration Examination was a clear and unambiguous multiple-choice question that fairly tested the candidate's ability to calculate, based upon the information given, the cost of delivering 28,000 lineal feet of #5 bars of reinforcing steel. There was only one correct answer to this question . Approximately 67 percent of the candidates chose this correct response. Petitioner chose another answer that was clearly incorrect. He therefore appropriately received no credit for his answer. Question 38 of the Contract Administration Examination was a clear and unambiguous multiple-choice question that fairly tested the candidate's ability to distinguish between unit price contracts and other types of contracts, including lump sum contracts. Approximately 82 percent of the candidates chose this correct response. Petitioner chose another answer that was clearly incorrect. He therefore appropriately received no credit for his answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received on the contract administration portion of the October 2000 certification examination for general contractors. DONE AND ENTERED this 11th day of May, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 11th day of May, 2001. COPIES FURNISHED: Michael Richards 3802 Lakewood Road Lake Worth, Florida 33461 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Certificate of Need No. 1645 was issued to Respondent on July 27, 1981, for construction of a 120-bed nursing home at a cost of $1,830,000 in the city of Safety Harbor, Pinellas County, Florida. Termination date of the certificate was originally July 25, 1982, but was subsequently extended for a period of six months at the request of Respondent. The expiration date of the certificate, as extended, was January 25, 1983. At the time the six-month extension was granted, Petitioner advised Respondent that the project was required to be ". . . under physical and continuous construction prior to the new termination date to have a valid and continuing Certificate of Need." Subsequent to the issuance of the certificate, Respondent retained and engaged personnel and organizations to assist in pursuing the project. The architectural firm of Wilson and Associates ("the architect") was engaged in August of 1981. Additionally, Respondent engaged the Kissell Company to secure financing, and the Hermanson Construction Company ("Hermanson") as the general contractor for the project. Respondent obtained preliminary approval of its site plan for the project from the City of Safety Harbor ("the City"). Additionally, the City created a zoning ordinance specifically for the project to permit a health care facility to be constructed at the proposed site. On September 21, 1981, the architect met with representatives of the HRS Office of Licensure and Certification, Jacksonville, Florida, to submit and review schematic plans for the project. HRS gave preliminary approval to the schematic plans on that same date. The HRS plan review process consists of three stages. The first stage consists of the submission of schematic plans; the second stage is the submission of preliminary plans; and, the third stage consists of submission of construction documents together with the required fee for final plan review. On November 13, 1981, the architect submitted additional schematics to HRS to complete the first stage of the plan submission process. In addition, the architect provided additional information previously requested by HRS on that same date. On December 14, 1981, the architect submitted the second stage documents to HRS. The HRS Office of Licensure and Certification, however, never responded to or commented on the submissions made by the architect in November and December of 1981. In early January, 1982, Respondent closed the purchase of the project site in Safety Harbor. Respondent paid a total of $165,000 for the site. In April, 1982, Respondent met with representatives of the City to discuss the issuance of industrial revenue bonds by the City to finance the project. Further, on April 19, 1982, Respondent purchased a corporate office in Safety Harbor at a cost of $80,000. After meetings between representatives of the City and Respondent, the City agreed to consider the issuance of industrial revenue bonds. Respondent paid $10,000 to the City in June, 1982, to offset any costs that the City would incur in considering the bond issue proposal. In addition, Respondent paid $4,000 to the City to resolve a dispute between the City and the previous owner of the property on which the project was to be located. On June 1, 1982, Respondent entered into a construction contract with Hermanson to construct the proposed nursing home project. A copy of the contract was furnished to the HRS Office of Community Medical Facilities. In August of 1982 Hermanson commenced its activities under the contract. These activities included obtaining proposals from subcontractors for materials and services to be used in the project, and hiring engineers to survey the site, conduct soil borings, and to conduct a tree survey required by local governmental authorities. Respondent secured financing for the project in September, 1982. On September 20, 1982, the City passed a Resolution of Inducement agreeing to issue revenue bonds to finance acquisition, construction, equipping, and furnishing the project. On September 20, 1982, Respondent and the City also entered into a Memorandum of Agreement regarding issuance of revenue bonds. In the latter part of 1982, Respondent was required to obtain approval of the project from numerous other local governmental entities. Specifically, Respondent obtained approval of the Site Development Plan and an amendment to the Land Use Plan from the City's Planning and Zoning Board, the City Commission, and Pinellas County. As part of the Site Development Plan approval, the City required Respondent to agree to make a number of offsite improvements, including the dedication of a 25-foot right-of-way, the paving of an adjacent roadway at Respondent's expense, and the construction of sidewalks. Respondent agreed to the conditions and the City and Pinellas County approved the Site Development Plan and the amendment to the Land Use Plan. Because of the City's requirement that Respondent dedicate a 25-foot right-of-way, Respondent was required to obtain a setback variance from the City because the proposed building location did not meet the City's property line setback limitations. On November 5, 1982, the architect submitted the third stage construction documents and plan review fees to HRS to complete the plan review process. On that same date, the architect spoke with representatives of the HRS Office of Licensure and Certification about obtaining HRS permission for an early construction start on the foundation work for the project. The architect was advised that an early start could not be granted until the third stage submissions had been reviewed. Throughout 1982, Respondent made numerous submissions to the Federal Housing Authority (FHA) and the Department of Housing and Urban Development (HUD) to obtain an FHA commitment to insure project financing. On November 26, 1982, Respondent obtained a conditional commitment from HUD for that purpose. Subsequently, on January 21, 1983, Respondent obtained FHA approval for an early start of project construction. The early start permitted construction costs to be covered by the insurance guarantee, prior to the issuance of the firm commitment. On January 25, 1983, Respondent obtained a firm commitment from HUD to insure project financing. The firm commitment insured both the construction and permanent financing. The FHA and HUD commitments and guarantees were still valid and effective at the time of final hearing in this cause, although a month-to-month extension had to be obtained by Respondent. Prior to January 25, 1983, Respondent had also obtained the following permits or approvals: an exemption from the Florida Department of Environmental Regulation from stormwater discharge permitting requirements; water and sewer service availability from the City; a City occupational license; a building permit from the City; a tree removal permit from Pinellas County; and business licenses from both the City and Pinellas County. Prior to January 25, 1983, the following work had been performed on the project site: a construction trailer was placed on the site; a fence removed and utilities, with the exception of water, were installed; a large lake and related storm sewer system had been relocated on the site; a survey had been performed and the site cleared and trees removed; the site was cut to subgrade and a pad prepared for the building foundation; and the building site had been roughed out and finished floor elevations had been set. As a result, the site is now ready for the placement of footers and foundations. Although the footers and foundation work have not been constructed, the record in this cause establishes that they could be in place within two weeks from the time approval is given for such work. At the time of final hearing in this cause, HRS had not given its approval for construction of the building foundation. Approximately $130,000 has been spent by Respondent on construction work at the site, which includes money paid to subcontractors for work and services provided. When contacted by the architect on January 24, 1983, one day prior to the expiration date of the certificate, the HRS Office of Licensure and Certification advised the architect that the third stage plan review process was at that time only 60 to 75 percent complete. On February 8, 1983, the HRS Office of Licensure and Certification first responded to Respondent's third stage construction documents which had been submitted by the architect on November 5, 1982. HRS advised the architect that it could not approve the project plans and submitted a number of comments and revisions to be incorporated into the plans. On February 17, 1983, the architect submitted the changes and corrections to HRS to comply with the February 8, 1983, HRS letter. On or about February 17, 1983, the architect again spoke with HRS representatives about obtaining permission for an early construction start but, again, permission was not granted. In the first week of March, 1983, Respondent contacted HRS to inquire about the status of his certificate. Respondent was concerned that HRS had not responded to his letter of January 14, 1983, in which he advised HRS that the project was under construction. HRS representatives advised Respondent in the first week of March, 1983, that an investigation of the matter would be made and that HRS would respond at a later date. In late March, 1983, after having received no notification from HRS, Respondent again contacted HRS representatives about the status of the certificate, and was advised that the certificate was considered to be null and void. Subsequently, on April 5, 1983, HRS sent a letter to Respondent advising him that the certificate was null and void since ". . . the project was not under physical continuous construction beyond site preparation by January 25, 1983." Effective June 5, 1979, HRS promulgated Rule 10-5.02(21), Florida Administrative Code, which defined the term "construction" to mean: . . . the commencement of and continuous activities beyond site preparation normally associated with erecting, altering or modifying a health care facility pursuant to construction plans and specifications approved by the department (Emphasis added.) That rule was challenged and ultimately invalidated by a DOAH Hearing Officer by Final Order entered April 18, 1980. The order of the Hearing Officer was subsequently upheld by the First District Court of Appeal in Westchester General Hospital v. State of Florida, Department of Health and Rehabilitative Services, 417 So.2d 261 (Fla. 1st DCA 1982). As a result, on January 25, 1983, the date of expiration of the Certificate of Need at issue in this proceeding, HRS had no "rule" that defined the terms "construction" or "commencement of construction." It is, however, clear from the record in this proceeding that the definition of "construction" contained in the invalidated rule is more restrictive than that generally utilized in the construction industry. In fact, the record in this cause establishes that "construction," as that term is used in the industry, "commences with the execution of a construction contract. Other factors indicative of "commencement of construction" would include the ordering of building materials, the solicitation and signing of contracts with subcontractors, the acquisition of required permits from various governmental entities, the preparation of drawings associated with the project, and the like. All of these activities necessarily precede "site preparation" and the pouring of footers and foundations and the placement of steel. It is undisputed that Respondent had not placed any concrete, steel, or footings on the project site prior to January 25, 1983. However, it is equally clear that those activities outlined above which Respondent had, in fact, accomplished prior to January 25, 1983, conformed to the definition of "commencement of construction" generally accepted by professionals in the construction industry. Conversely, there is no competent or persuasive evidence of record to "elucidate," "explicate," or otherwise support the purported HRS policy of requiring the placement of foundations, footings, concrete, or steel on the job site prior to the expiration date of a certificate of need. Neither is there any evidence of record in this cause to establish that HRS at any time advised Respondent of its policy requiring the placement of footers, foundations, or steel in order to comply with HRS's purported policy.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Manuel Lanz graduated from the University of Illinois School of Architecture in December of 1971, with honors and high distinction in the area of design. He is an applicant for licensure by examination to practice architecture in the State of Florida. The architecture examination in Florida is composed of two parts. The written portion of the exam (Part B) is given in December, and petitioner passed this portion. The design and site portion of the exam (Part A) is given in June and consists of a twelve-hour sketch problem. Petitioner failed this portion of the examination in June of 1982, as he has done on two previous occasions. Part A of the examination is supplied to participating states by the National Council of Architectural Registration Boards (NCARB) and involves the design of a structure by an applicant, including requirements for placing the structure on the site, elevations, cross sections, and floor plans. Applicants are provided with a preexamination booklet which sets forth the architectural program to be accomplished and the various requirements which are to be addressed in order to achieve a passing grade. At the time of the examination, the applicant is given other information to enable him to more adequately design the structure and perform the necessary technical adjustments. Each participating state sends a number of graders to an intense two- day grading session sponsored by the NCARB. The purpose, of such sessions is to standardize the graders' conceptions of the minimal competence required for a passing grade. Each examination is graded on a blind basis by at least two independent architect graders. If the two separate grades received, when considered together, do not result in a definite pass or fail, a third, and on some occasions a fourth, independent grader will review the applicant's solution. The project to be designed in the 1952 Site Planning and Design Test was a municipal airport terminal building in a small city in the northwest. Applicants were provided with information as to the applicable topography and climate of the area, code requirements, space requirements, site circulation requirements and the various areas to be included within the building. The candidates were required to provide a site plan, a ground level plan-north elevation; a second level plan and a cross-section of the facility. Petitioner's solution to the problem was weak in many areas. Service, baggage and aircraft traffic were co-mingled. Accessibility for handicapped persons was not addressed. His solution failed to comply with the applicable building code requirements with regard to the number of exits required, the location of stairs and a fire sprinkler system. Petitioner also failed to comply with the requirements regarding square footage. His exit doors swung in the wrong direction and there was no means of exit from the kitchen other than through the dining room of the restaurant. His cross-sectional failed to indicate the location of beams and ducts for heating and cooling. There was no indication in the solution that petitioner gave any consideration to the program requirements of natural ventilation or natural lighting, or that he made any provision for noise from the aircraft. The flat roof provided by the petitioner would not accommodate the precipitation experienced in the area as described in the program. While an effort was made by the petitioner to comply with the program requirements, he failed in several material areas and some minor areas to achieve sufficient clarity in his presentation and to observe program requirements.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered denying petitioner's application for licensure as an architect on the ground that he failed to successfully pass Part A of the architecture examination. Respectfully submitted and entered this 20th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (304) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1983. COPIES FURNISHED: Silvio Lufriu, Esquire Suite 817 412 E. Madison Street Tampa, Florida 33602 John J. Rimes, III, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida Mr. Herbert Coons Executive Director Board of Architecture 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
