The Issue Whether respondent's registered building contractor's license should be revoked, suspended or otherwise disciplined based on allegations he violated (1) Section 489.129(1)(c), Florida Statutes, in that he violated a provision of Chapter 455, Florida Statutes; (2) Section 489.129(1)(g), Florida Statutes, in that he acted in the capacity of a contractor under a name other than on his registration; and (3) Section 489.129(1)(j), Florida Statutes, in that he failed, in two material respects, to comply with the provisions of Chapter 489, Florida Statutes.
Findings Of Fact At all times material hereto, respondent was licensed by the Construction Industry Licensing Board as a registered building contractor, having been issued a license number RR 0007671. He was not, however, licensed as a roofing contractor. Neither did he, at any time, qualify Gus Schmidt Home Improvements, Inc., with the Construction Industry Licensing Board. (See Petitioner's Exhibit 1). In 1968, respondent was issued a limited general contractor's license by Palm Beach County, Florida, under which he was authorized to install roofs only on structures which he constructed; he was not authorized to re-roof existing roofs. He has continuously renewed this local license, from 1968 to the present. On November 26, 1979, he qualified Gus Schmidt Home Improvements, Inc., with the Palm Beach County Construction Industry Licensing Board, which qualifications he has maintained to the present time. (See Petitioner's Exhibits 5). At all times material hereto, he held no other certificates of competency issued by Palm Beach County, Florida. At all times material hereto, he was the only qualifier for Gus Schmidt Home Improvements, Inc. ( See Petitioner's Exhibit 5). On or about May 5, 1980, he signed and submitted a notarized letter of authorization to the Palm Beach County Building Department. By this letter, he authorized Linda DeVito, his daughter, to obtain local building permits in the name of Gus Schmidt Home Improvements, Inc., and accepted liability for all acts performed under the permits. (See Petitioner's Exhibit 6). On or about May 29, 1980, Gus Schmidt Home Improvements, Inc., contracted with Mr. and Mrs. Garrett McLaughlin to remove and replace the existing roof over the carport and entry-way of the McLaughlin's home, and waterproof the entire roof. The house is located at 2041 Upland Road, West Palm Beach, Florida. The contract was signed by an employee of the respondent, and contained a five-year warranty on the work performed by Gus Schmidt Home Improvements, Inc. The contract price was $2,532.00. (See Petitioner's Exhibit 8). On or about June 16, 1980, Linda DeVito, as the authorized agent for Gus Schmidt Home Improvements, Inc., applied for a county building permit to perform the roofing work on the McLaughlins' home. Based on her application, a county building permit, number 80-14711, was issued to Gus Schmidt Home Improvements, Inc. (See Petitioner's Composite Exhibit 7). This permit was issued based on respondent's letter of authorization, dated March 5, 1980, which was on file with the Palm Beach County Building Department. (See Petitioner's Exhibits 6 and 7). In or about August 1980, Gus Schmidt Home Improvements, Inc., completed the re-roofing work on the McLaughlins' home, without subcontracting it. Between May 29, 1980, and July 29, 1980, Mrs. McLaughlin paid Gus Schmidt Home Improvements, Inc., $2,532.00--the full contract price. (See Petitioner's Exhibit 10). A few weeks after the roofing work was completed, Mrs. McLaughlin checked the roof and discovered that the coating had not completely covered it. There were openings where stones were showing. She became concerned and called Gust Schmidt Home Improvements, Inc. She was told not to worry because the work was covered by a five-year warranty. During 1981, weeds began to grow on the McLaughlins' roof. In May or June of 1982, Mrs. McLaughlin called respondent to complain about the roof's condition. He told her that he had gotten out of the business before the work on the McLaughlins' home was completed, and that a company on Lake Avenue in West Palm Beach, Florida, had done the work on her home. He told her that he would call her back with further information, but never did. When respondent did not call back with further information, Mrs. McLaughlin checked the phone book and decided that respondent must have been referring to a company called Florida Exteriors. She called that company and was told that they would honor her warranty. But the roof on Mrs. McLaughlin's home was never repaired, even though the roof leaked where boards had been replaced.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent's contractor's license be suspended for six months, and that he be administratively fined $1000. DONE AND ENTERED this 12th day of April 1984 in Tallahassee, Florida. R. L. CALEEN, JR. 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 12th day of April 1984. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Gus Schmidt 602 North "A" Street Lake Worth, Florida 33460 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact By application dated October 9, 1984, the Palm Beach County Water Utilities Department applied for a permit to construct a temporary septage receiving facility at a location within Palm Beach County known as Sewage Treatment Plant 2S which is adjacent to and immediately north of Petitioner's neighborhood. It was estimated that this facility would receive between 30,000 and 50,000 gallons of septage each day from septic tanks in Palm Beach County. The specific operation procedure to be used at the site begins with access to the site from Forest Hill Boulevard, located to the north, using an unpaved, curved roadway. Septage trucks arriving at the site are faced with a potentially dangerous situation since the roadway is very narrow in parts, and is somewhat elevated and they therefore have to be very cautious to avoid accidents. The arriving trucks back over an asphalt paved area to a transfer box and discharge septage through a four-inch rubber hose into the transfer box. Septage flows through the transfer port and is distributed over a bar screen. Materials collecting on the bar screen are manually raked onto the drainage place, collected and placed into a dumpster for removal to a landfill. Septage then flows from the transfer box through a twelve inch pipe by gravity into a 120-inch wet well, and is diluted. The septage flows through an 8-inch sewer pipe by gravity into an existing pump station wet well on site. Two pumps then pump the septage into a force main system through which it flows to the West Palm Beach Regional Sewage Plant. The facility for which this permit is sought is intended to receive septage formerly deposited at Dyer Boulevard landfill septage facilities which has ceased operation under a Consent Order between Palm Beach County and the Department of Environmental Regulation. This is proposed as a receiving and transporting facility only, and not a treatment facility. Roy Duke, the Southeast District Manager with the Department of Environmental Regulation, who was accepted as an expert in environmental permitting, testified that in his opinion the site in question is the best site available to Palm Beach County for such a receiving facility. Due to the need to find a suitable replacement for the Dyer Boulevard site, the Department of Environmental Regulation requested that the County Water Utilities Department submit this application and supports the issuance of the permit. In accordance with an Operating Agreement between the Palm Beach County Health Department and the Department of Environmental Regulation, the County Health Department has authority to review and issue permits for sewage collection and transmission systems. Upon receipt of this permit application, the County Health Department requested additional information in the review process, which the County Water Utilities Department provided, in order to determine if "reasonable assurances" were being provided that the receiving facility would not discharge, emit, or cause pollution contrary to applicable standards, rules or regulations. According to Umesh Asrani, a Professional Engineer with the County Health Department, who was accepted as an expert in wastewater treatment technology, and the processing and evaluation of wastewater treatment facility permits, "reasonable assurances" have been given in this permit application. Testimony at the final hearing establishes that the proposed site has already been put into operation by the County with the approval of the Department of Environmental Regulation due to the emergency need to find an alternative to the Dyer Boulevard site. A temporary injunction was sought against this operation by residents of the area but it was not granted. The current operation of the facility is not challenged in this proceeding, but Petitioner points out that adverse effects on the neighborhood resulting from this operation are relevant to the issuance of the permit sought in this case. Specifically, Petitioner Kevin Donovan testified that truck traffic and noxious odors have increased since the operation began and would be expected to continue if the permit is granted. He has also seen evidence of spills at the site, and introduced evidence to establish that "sludge" containing commercial wastes and grease was being deposited at the site as well as "septage." Petitioner expressed his concern that hazardous wastes could be deposited at the site. Roy Duke testified that small amounts of hazardous wastes could be disposed of in residential septic tanks and ultimately collected at this site, but that in his opinion this was not a widespread practice, and the amounts would not present a danger to health or the environment. Petitioner also expressed his fear that the surface and ground water could be contaminated from leaks and spills occurring at the site. Expert witnesses testifying on behalf of Respondents stated that no such discharges were reasonably likely to occur. The greater weight of the evidence supports Respondents' position that reasonable assurances have been given that dangerous amounts of hazardous wastes will not be deposited at the site, and that surrounding surface and ground waters will not be contaminated by operation of the site. With the exception of a pH test which is conducted at the site when septage is received to determine its level of acidity, no tests or treatment are performed on the septage at the site. It is simply deposited and transmitted through the sewer system to the West Palm Beach Regional Sewage Plant for testing, treatment, and final disposal. The amount of septage deposited at this site is very small (30,000 to 50,000 gallons per day) in relation to the total amount treated each day at the Regional Sewage Plant (approximately 40 million gallons per day). Based upon bills of lading for deposits at the site since it was placed in operation, the site is used to receive and collect septage, including grease and sludge, from residences, restaurants, construction sites, digesters, and race tracks.
Recommendation Based upon the foregoing, it is recommended that a Final Order be entered issuing the permit sought by the Palm Beach County Water Utilities Department and denying the relief sought by Petitioner. DONE and ENTERED this 2nd day of May, 1985, at Tallahassee, Florida. DONALD D. CONN 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 2nd day of May, 1985. COPIES FURNISHED: Frank A. Kreidler, Esquire 521 Lake Worth Avenue Suite 3 Lake Worth, Florida 33460 Julia D. Cobb, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Thomas C. McEaddy, Jr., Esquire Post Office Box 1989 West Palm Beach, Florida 33402 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
The Issue Whether the Petitioner is eligible for vested deferred retirement pension benefits payable by the West Palm Beach Police Pension Fund ("Fund").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, on the stipulation of the parties, and on the entire record of this proceeding, the following findings of fact are made: The Fund is a vested defined benefit pension plan created by Special Act of the Florida Legislature pursuant to Chapter 185, Florida Statutes. See Ch. 24981, Laws of Fla. (1947), as amended by Ch. 88-105, Laws of Fla. ("Fund documents").1 It is funded by contributions from its members; the City of West Palm Beach, Florida; and the State of Florida. Mr. DeLong was employed by the Police Department of the City of West Palm Beach ("Police Department") on November 26, 1979. Mr. DeLong was injured in the line of duty in or about 1987. He submitted an Application for Retirement dated May 26, 1988, under the category of "Duty Disability." Mr. DeLong retired from the Police Department effective November 17, 1988, after the Board approved his application for disability retirement benefits. At the time of his disability retirement, Mr. DeLong had service credit under the Fund of eight years, 11 months, and 21 days. Mr. DeLong received a monthly disability retirement benefit of $1,725.59. In a letter dated April 19, 1989, Mr. DeLong applied for a specialized assignment with the Police Department. He enclosed with the letter an Application for Specialized Assignment, indicating that his "requested assignment" was "helicopter flight officer," and he stated that he believed he could "perform flight operations."2 The opening for specialized assignment for helicopter patrol was advertised in the April 7, 1989, Police Department Bulletin, and the assignment was described in pertinent part as follows: "The position will be considered a Part-time Position that will utilize selected officers both during their On-Duty and Off-Duty hours. Overtime will be afforded those who work while Off-Duty." At its meeting on June 14, 1989, the Board was advised of Mr. DeLong's application for specialized assignment as a helicopter pilot. Questions arose as to whether Mr. DeLong continued to be disabled, as defined in the Fund documents, and entitled to continue receiving disability retirement benefits. In order to determine if Mr. DeLong was still disabled, the Board directed that Mr. DeLong be examined by a physician chosen by the Board "for the purpose of securing a medical opinion as to whether Mr. DeLong is physically able to perform the duties of the position being sought."3 In a letter dated June 20, 1989, Michael F. McClure, the Assistant Chief of the Police Department's Uniform Services Division, advised Mr. DeLong that he could not be considered for the helicopter patrol assignment because he was "not a full-time employee with the police department."4 Chief McClure further stated that "[i]f, at some later date, you are determined by a physician to be capable of returning to full duty, you [sic] application will be considered."5 As reflected in the minutes of the Board's meetings on August 22, 1989; November 8, 1989; and December 7, 1989; the Board was unable to conclude, on the basis of the information provided to it, that Mr. DeLong was physically capable of performing the duties of a police officer. The minutes of the December 7, 1989, meeting reflect that Mr. DeLong's attorney at the time, Scott Richardson, represented to the Board that "Dr. Stone [the physician chosen by the Board to examine Mr. DeLong] stated that while Mr. DeLong is not totally disabled that he would be limited in terms of being prevented from performing the normal duties of a Police Officer."6 The minutes also reflect that Mr. Richardson stated that "the Police Department states that due to these limitations that Mr. DeLong would not be rehired."7 The Board's attorney framed the question before the Board at the December 7, 1989, meeting as follows: "[T]he question is whether Dr. Stone's re-evaluation would warrant the Trustees determining that Mr. DeLong was no longer eligible to receive Disability Benefits." At the conclusion of its discussion of Mr. DeLong's situation, the Board voted unanimously "to accept Dr. Stone's report and to recognize that Mr. DeLong is still eligible to receive Disability Benefits." Mr. DeLong continued receiving disability retirement benefits until the Board decided to discontinue the benefits at its meeting on October 30, 1990. In or about early October 1990, the Board learned that that Mr. DeLong was employed as "a sworn Law Enforcement Officer" with the Palm Beach County Sheriff's Office.8 Mr. DeLong was advised in a letter from the Board's attorney dated October 12, 1990, that “disability retirement is payable only as long as you are totally incapacitated from performing the functions of a police officer." Mr. DeLong was asked to appear at the Board's October 30, 1990, meeting to "show cause why your disability pension should not be terminated."9 In a letter dated October 23, 1990, Mr. DeLong's attorney advised the Board's attorney as follows: "Please be advised that Mr. DeLong, effective immediately, resigns his position with the West Palm Beach Police Department and relinquishes any right that he presently has to the disability pension previously granted. This letter will obviate the need for us to appear at the [Board's] October 30, 1990, meeting."10 In a letter dated October 29, 1990, Mr. DeLong returned his disability retirement benefit check to the Fund and confirmed that he "resigned his job as a police officer and terminated my duty disability pension."11 Because Mr. DeLong began his employment with the Palm Beach County Sheriff's Office effective May 1, 1990, the Board requested that he refund the amount of $10,553.54, which represented the total amount of disability retirement benefits he received between May 1, 1990, and October 1990.12 Mr. DeLong repaid the Fund in full. Mr. DeLong was not entitled to a return of his contributions to the Fund because the amount of disability retirement benefits he received exceeded his contribution. He did, however, receive payment of $5,497.90, which was the balance in his share account as of October 1, 1989.13 Mr. DeLong submitted to the Florida Retirement System Pension Plan a form dated June 24, 2005, requesting that it verify his retirement system service credit. He noted on the form that he had been employed by the West Palm Beach Police Department from November 1979 to April 1990. Mr. DeLong sent a letter to the Fund administrator, which was received on September 29, 2008, inquiring about his eligibility for a pension, the years of service that were credited to him, and any refunds due to him. Although the record is incomplete, it appears that, between July 2009 and February 2010, the Fund's representatives were trying to determine if Mr. DeLong was entitled to vested deferred retirement benefits either upon early retirement or upon normal retirement at age 55 years. Mr. DeLong was notified that his request for vested deferred retirement benefits would be discussed at the March 12, 2010, meeting of the Fund's Board. The minutes of the Board's March 12, 2010, meeting reflect that Mr. DeLong was not present. The issue of Mr. DeLong's eligibility to receive vested deferred retirement benefits was presented to the Board, and the minutes indicate that the Board decided not to "apply any credited service to Mr. DeLong during his time of disability."14 CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to the contract between the Fund and the Division of Administrative Hearings and Sections 120.565 and 120.57(1), Florida Statutes (2010). Mr. DeLong is seeking to establish his eligibility for vested deferred retirement benefits from the Fund and, therefore, has the burden of proof by a preponderance of the evidence. See Haines v. Department of Children & Families, 983 So. 2d 602, 605 (Fla. 5th DCA 2008)(citing Department of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996))(general rule is that party asserting affirmative of issue has burden of presenting evidence as to issue, as well as ultimate burden of persuasion); Florida Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); see also § 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute "). The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law Dictionary 1201 (7th ed. 1999), or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997) quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)). At the times pertinent to this proceeding, the Fund documents defined the terms under which the Fund operated. Section (2) of the Fund documents included the following definitions, pertinent to this proceeding: "Member" or "participant" means any person who is included in the membership of the fund. * * * (k) "Police officer" means any person who is elected, appointed, or employed full-time by the city . . . . * * * "Retirant" means any member who retires with a pension from the fund. "Retirement" means a member's withdrawal from city employment with a pension payable from the fund. * * * (q) "Service," "credited service," or "service credit" means the total number of years, and fractional parts of years, of service of any police officer omitting intervening years and fractional parts of years, when such police officer was not employed by the city. . . . Section (8) of the Fund documents described the age and service requirements for retirement and provided for normal retirement, vested deferred retirement, and early retirement. Pertinent to this proceeding, "vested deferred retirement" applied to members of the Fund "with 10 or more years of credited service" who "leave the employment of the department for any reason except retirement or death." § (8)(b) of the Fund documents. If a police officer is eligible for vested deferred retirement, the police officer shall be entitled to a pension on early retirement or at the normal retirement age. Id. Mr. DeLong claims that he is entitled to a vested deferred retirement benefit because his years of active employment as a police officer with the Police Department, plus the one year, five months, and 13 days during which he received disability retirement benefits, total slightly more than 10 years. Duty disability retirement pensions are governed by the provisions of Section (11) of the Fund documents, which provided in pertinent part: (a) Retirement.--Any member who becomes physically or mentally, totally and permanently disabled to perform the duties of a police officer, by reason of a personal injury or disease arising out of and in the course of the performance of his or her duties as a police officer, in the employ of the city, shall be retired with a pension provided for in this subsection; provided, that after a medical examination of the member made by or under the direction of the medical committee, the medical committee reports to the board, in writing whether: The member is wholly prevented from rendering useful and efficient service as a police officer; and The member is likely to remain so disabled continuously and permanently. . . * * * (c) Duty disability pension benefits; disability occurs before age and service eligibility.--A member whose retirement on account of disability, as provided in paragraph (a) of this subsection, occurs prior to the date he or she would become eligible to retire under paragraph (8) hereof [normal, vested deferred, or early retirement], shall receive a disability pension The disability pension . . . shall be subject to subsection (12) hereof. Subsection (12) of the Fund documents sets forth "[c]onditions applicable to all disability retirants," and provided in pertinent part: (c) Payment of disability pensions.-- Monthly disability retirement benefits shall be payable as of the date the board determines that the member was entitled to a disability pension; . . . The last payment shall be, if the police officer recovers from the disability prior to his or her normal retirement date, the payment due next preceding the date of recovery, . . . . * * * Reexaminations of disability retirants.--At least once each year during the first 5 years following a member's retirement on account of disability, and at least once in each 3-year period thereafter, the board shall require any disability retirant who has not attained age 50 to undergo a medical examination to be made by a physician designated by the board. . . . If, upon such medical examination of such retirant, the said physician reports to the board that the retirant is physically able and capable of performing the duties of a police officer in the rank held by him or her at the time of his or her retirement, the member shall be returned to employment in the department at a salary not less than the rank held by him or her and his or her disability pension shall terminate. Credited service for disability retirant.-- In the event a disability retirant is returned to employment in the department, as provided in paragraph (e), he or she shall again become a member of the fund and the credited service in force at the time of the member's retirement shall be restored to his or her credit. If he or she retired under a duty disability as provided in paragraph (11)(a) hereof, he or she shall be given service credit for the period he or she was in receipt of a disability pension. . . . Pursuant to Section (12)(e) and (f) of the Fund documents, Mr. DeLong would have been eligible to receive service credit for the period during which he received disability retirement benefits only if it was determined that he was physically capable of performing the duties of a police officer and if he returned to employment with the Police Department. Based on the minutes of the relevant Board meetings, there was no determination by the Board that Mr. DeLong was physically capable of returning to duty as a police officer prior to its learning, in October 1990, that Mr. DeLong had been employed by the Palm Beach County Sheriff's Department since May 1, 1990. In fact, Mr. DeLong's attorney conceded at the Board's December 7, 1989, meeting that Mr. DeLong continued to have limitations on his ability to perform the normal duties of a police officer. The Board voted at that time to continue Mr. DeLong's disability retirement benefits, an implicit finding by the Board that Mr. DeLong remained totally and permanently disabled as defined in Section (11)(a) of the Fund documents. Based on the findings of fact herein, even had the Board concluded that Mr. DeLong was no longer permanently and totally disabled, the Police Department did not refuse to return him to employment. The only application for employment submitted to the Police Department by Mr. DeLong was an Application for Specialized Assignment as a helicopter pilot, which he submitted in April 1989. Mr. DeLong could not be given this "specialized assignment" because he was no longer employed as a full-time police officer by the Police Department, which employment was a prerequisite for consideration for a specialized assignment. Consequently, the Police Department could not hire Mr. DeLong for this position. Mr. DeLong contends in his proposed findings of fact and conclusions of law that his employment with the Police Department actually ended when the Police Department terminated his employment effective May 1, 1990, the day he began his employment with the Palm Beach County Sheriff's Department. To the contrary, in accordance with the definition of "retirement" in Section (2)(o) of the Fund documents, Mr. DeLong withdrew from his employment with the Police Department on November 17, 1988, the effective date of his retirement and his entitlement to disability benefits from the Fund. His purported "resignation” of his position with the Police Department on October 23, 1990, was ineffective and did not alter his termination date under the Fund documents. Based on the pertinent provisions of the Fund documents, as applied to the facts found herein, Mr. DeLong is not entitled to service credit for the period of time he received disability retirement benefits from the Fund. His service credit at the time of his retirement and withdrawal from employment with the Police Department was, pursuant to Section (2)(q) of the Fund documents, eight years, 11 months, and 21 days. Mr. DeLong has fewer than 10 years of service credit with the Police Department, and he has, therefore, failed to meet his burden of proving by a preponderance of the evidence that he is eligible for vested deferred retirement benefits from the Fund.15
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the West Palm Beach Police Pension Fund enter a final order finding that Michael L. DeLong did not accrue service credit during the time he received disability retirement benefits and is, therefore, not eligible for vested deferred retirement benefits. DONE AND ENTERED this 12th day of October, 2010, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 12th day of October, 2010.
Findings Of Fact In May 1979, Respondent issued invitation for bids for office space in West Palm Beach, Florida, for the purpose of establishing a combined claims, tax, and appeals unemployment compensation office in the West Palm Beach area. The lease on the present office in West Palm Beach expires in December, 1979. Two prior invitations for bids on the required office space had failed to result in the receipt of any bids. The invitation for bids provided that Respondent reserved the right to reject any and all bids and to make the award deemed to be in the best interests of the State of Florida. (Testimony of Bradner, Exhibit 15) On May 30, 1979, Petitioner Richard S. Weinstein submitted the sole bid in response to the May 1979 invitation. He proposed to lease his building located at 1814 North Dixie Highway, West Palm Beach, and to meet all bid specifications and requirements. At the time of bid submission, Petitioner was leasing the building in question to a tenant who operated a used furniture store on the premises. In order to meet the specifications of the bid, the property required considerable renovation and improvement which Petitioner agreed to accomplish. (Testimony of Petitioner, Exhibit 2) A bid selection committee composed of four departmental employees in Respondent's Tallahassee headquarters was appointed to consider Petitioner's bid and arrive at appropriate recommendations. On June 7, 1979, one of the committee members, accompanied by several officials of the West Palm Beach Office, inspected Petitioner's building and the surrounding area to determine its suitability for the proposed unemployment compensation office. Based upon statements made by those officials and the building's tenant that the area was unsafe and subject to frequent vandalism and theft, the committee member thereafter recommended to the selection committee that the bid be rejected and that the Department should readvertise for new bids. The committee unanimously accepted the recommendation and, on June 13, 1979, Petitioner was advised in a letter from the Respondent's support services director that his bid had been rejected based on the "inability of the building to meet our programmatic needs." Petition thereafter protested the decision and, as a result, the Secretary of the Department, Wallace E. Orr, directed the entire committee to make an on-site evaluation of the property and surrounding area. Thereafter, on July 18, 1979, the committee visited the site. At this time, each committee member, together with one of the officials of the local office, inquired of various businessmen in the surrounding area as to local criminal activity and solicited their opinion as to safety and security problems. One of the committee members also telephoned a city police desk sergeant concerning crime statistics in the area. (Testimony of Petitioner, Lowhorn, Orr, Bradner, Exhibits 3-4, 12) Petitioner gave the committee members a petition from a number of local businessmen supporting his bid, and a letter from the nearby Good Samaritan Hospital advising that it may construct a medical office building adjacent to the hospital in the future. Letters were also sent to the Department by the manager of an apartment building adjacent to Petitioner's premises stating that the area was safe and that there had been no break-ins in more than four years, and from the Mayor of West Palm Beach to the Secretary of the Department describing the area and asserting that it was making a resurgence in character as a result of city improvements and that it was no more unsafe than most of the areas of the city. Another letter, dated July 20, 1979, was sent to the Department from the West Palm Beach Downtown Development Authority Executive Director stating that the area was growing, new buildings were being developed, and that the downtown area generally was becoming a "hub" for governmental facilities. Upon return to Tallahassee, each member of the bid committee rendered a report and recommendations concerning Petitioner's bid. They applied weighted criteria in its consideration, and concluded that the bid was unacceptable because it failed to meet the two criteria of "condition of immediate vicinity of location" and "security of the facility." In these respects, they basically found that (a) the various businesses in the area were essentially "fortified" against burglary and vandalism, (b) the proposed office would be subjected to break-ins and possible loss of valuable office equipment and unemployment compensation checks, (c) the local departmental employees would be fearful of working in an unsafe area and (d) an office located at Petitioner's premises would be "depressing" to members of the public who utilized the departmental services. No mention was made in the various reports of the petition or letters sent to the Department by civic officials. The committee again recommended rejection of the bid and, by letter of August 1, 1979, Petitioner was advised of this fact and that new calls for bids would be made in the near future. Secretary Orr had viewed the premises himself and agreed with the committee recommendations that the site was unsuitable for the establishment of a local office. He felt that placement of the office in the area where Petitioner's building was located would be inconsistent with departmental goals to upgrade their state offices and improve their "image." He had not been made aware of most of the various letters and the petition provided to the committee, but had considered the letter of the West Palm Beach Mayor prior to arriving at his decision. (Testimony of Butler, Frisch, Radner, Baker, Orr, Lowhorn, Renfroe, Quigg, Petitioner, Exhibits 6-10, 11-12, 16) The street on which Petitioner's building is located is commercial in nature, although it is on the fringe of a residential community. It is an older part of the city and, until about five years ago, was in a rundown and depressed condition. In recent years, however, there has been an upgrading of the character of the downtown area of West Palm Beach which extends northerly to encompass the businesses in Petitioner's vicinity. The establishment of governmental facilities in the downtown and adjacent areas have been encouraged and a state office building is located in the area. A Department of Health and Rehabilitative Services "halfway house" has been erected approximately two blocks from Petitioner's building. Additionally, a branch banking facility, professional offices, several quality restaurants, and other modern business establishments are in the near vicinity. A laundry plant is across the street from Petitioner's building and at the present time presents an unsatisfactory appearance. It is intended, however, by the owners to expand and remodel the building in the near future. The City of West Palm Beach has the second highest crime incident rate in the state based on population. The city is divided into ten zones for police purposes, and during 1978, the zone in which Petitioner's building is located was average from the standpoint of crime statistics. In the opinion of the City Chief Police Inspector, it is typical of the various commercial areas located along U.S. Federal Highway No. 1, and as safe an area in the daytime as any in the city. He is of the further opinion that a burglar alarm would be a sufficient security precaution for nighttime safety, and that with such protection, a building would have adequate security. The highest crime rate in the city is located in the zone where the city hall, police station and other governmental buildings are located. Although business and professional individuals in the area near Petitioner's building have experienced minor vandalism and occasional illegal entries in the past, they uniformly are of the opinion that the area is safe with normal security precautions, such as a burglar alarm. A local boat sales establishment has a fence around the premises and a watch dog, but no burglar alarm. These precautions are designed to protect the expensive boats which are located out- side the building. The apartment building next to Petitioner's premises has not experienced break-ins in recent years although some of its elderly patrons have been exposed to occasional purse snatching on the street. The laundry plant across the street from Petitioner's building experiences various window breakage by youths on the weekends, and had a break-in recently in the nighttime through a poorly secured door in the rear of the premises. (Testimony of Lowhorn, Stackhouse, Hauser, Hodges, Lee, Lunney, Eddy, Ring, Eaton, DeSanti, Witt (Deposition - Exhibit 1), Exhibits 12-14).
Recommendation That Petitioner's bid be accepted by Respondent and recommended for approval to the Department of General Services. DONE and ENTERED this 17th day of December, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John C. Moyle, Esquire 707 North Flagler Drive Post Office Box 3888 West Palm Beach, Florida 33402 Kenneth H. Hart, Jr. and Chad J. Motes, Esquires Department of Labor and Employment Security 2561 Executive Center Circle E. Suite 131 Tallahassee, Florida 32301
Findings Of Fact Petitioner, District Mental Health Board No. 9, Inc., is the recipient of funds from the State of Florida under the Baker Act Program. Such funds are received pursuant to a contract between petitioner and respondent, Department of Health and Rehabilitative Services (HRS). Petitioner is also the recipient of grant funds from the federal government under the Community Mental Health Centers Amendment Act of 1975. After receiving such funds, petitioner contracted with South County Mental Health Center (SCMHC), Palm Beach County Comprehensive Community Mental Health Center (PBCCCMHC) and Indian River Community Mental Health Center to provide certain mental health services. As a result of an audit performed by respondent for fiscal years ending June 30, 1979, and June 30, 1980, respondent determined that $130,093 in costs incurred by SCMHC and PBCCCMHC should be disallowed on the ground the District and its subcontractors failed to maintain records capable of audit. More specifically, it contended that state and federal funds were comingled in a single operating account, and that the auditors could not precisely determine how the various grant funds were allocated among the programs. It alleged that these deficiencies constituted a violation of Rule 10E-4.12(8)(d)2.e, Florida Administrative Code. At the conclusion of the hearing, respondent stated that it had relied upon an incorrect rule to support the disallowance of the expenditures and moved to amend its pleadings or to continue the hearing. Both requests were denied. The field auditor who conducted the Department audit is no longer employed by HRS and was not present at the final hearing. Although a Department representative testified, he was not familiar with the specific deficiencies in the records, the actual records examined, the field auditor's understanding of the various grants and programs in question, and what additional information, if any, had been requested from the subcontractors when the audit was made. It was also not disclosed which rule, if any, prohibited the maintenance of a single operating account for multiple types of grant funds as long as a clear audit trail was present. Petitioner produced records to demonstrate how the grants funds were allocated even though a single operating account had been used. It also pointed out specific errors made by the field auditor when he conducted the audit. Although petitioner admitted its records were not perfect, it contended they were in such sufficient detail and clarity as to provide a clear audit, trail for the Department auditor. This contention was not controverted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent repay petitioner $118,799 in grant funds previously taken from petitioner prior to the commencement of this proceeding. DONE and ENTERED this 11th day of August, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 11th day of August, 1983.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Amended Petition to Establish the Palm Coast Park Community Development District (Amended Petition) dated October 13, 2004. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
