Findings Of Fact The Petitioner, a nonprofit corporation, was licensed by the Respondent to operate as a vocational, technical, or trade school during 1977. The school was designed to teach business machine repair and maintenance skills to students. The Petitioner applied for a renewal of the license with the Respondent for 1978. By letter dated August 14, 1978, the Respondent advised the Petitioner that it would not reissue the license. The Petitioner requested an administrative hearing, and this proceeding ensued. Beginning in January, 1977, the Petitioner was funded by the "CETA Administration" as a service delivery agent. Under this funding, the Petitioner would submit requests for reimbursement based upon its expenditures in providing an educational program to its students, and the Petitioner was funded directly. Petitioner enjoyed this status from January through September, 1977, and received a total of $87,806.07 in direct funding. As of October 1, 1977, the Petitioner's funding status with CETA changed. After that date the Petitioner became what was called a "sub-subgrantee" of the vocational education component of the local CETA Administration. The vocational education component of CETA became the service delivery agent, and was directly funded. The Petitioner thereafter was not able to do its own recruiting of students, and no longer received direct funding from CETA. Rather, CETA would pay to students a stipend adequate to compensate them for tuition, and other costs of the program. On October 1, the Petitioner had eleven students. Despite the Petitioner's efforts to provide the new service delivery agent with the names of persons interested in participating in the Petitioner's program, CETA did not refer new students to the program. The school lost approximately one student per month from October, 1977 through May, 1978. CETA discontinued all funding of the Petitioner on June 7, 1978. Since that date the Petitioner has had no students. The financial statement submitted by the Petitioner to the Respondent in connection with the renewal application revealed that the Petitioner was operating with a net income loss of $524.76; had total assets of minus $203.57; a fund balance of minus $446.96; and total liabilities of more than two hundred dollars. The projected finances for the period October 1, 1978 through September 30, 1979 indicates that the school will lose approximately ten thousand dollars. The Petitioner, in its renewal application, did not reveal that it had had a drastic change in its funding status, and that it had lost all of its students. During the time that it was in operation, only approximately five persons completed the Petitioner's course work. The Petitioner submitted with its renewal application, a copy of its school catalog. The catalog revealed that certain persons remained on the school's board of directors, who in fact had resigned from these positions. This failure is excusable. The catalog that was submitted was the same catalog that had been used the year before. Due to the loss of its CETA funding, the Petitioner could not afford to have new catalogs printed.
The Issue The issues in the case are as follows: Whether Florida Administrative Code Rule 61G4-12.017 is an invalid exercise of delegated legislative authority; and Whether the committee procedure used by the Construction Industry Licensing Board to review applications for licensure is invalid as an unadopted rule.
Findings Of Fact The Petitioner is an applicant for licensure as a general contractor by the Respondent. By operation of Subsection 489.107(4), Florida Statutes (2006),1 the Construction Industry Licensing Board (CILB) is divided into two Divisions. Division I has jurisdiction over the regulation of general contractors, building contractors, and residential contractors. Division II has jurisdiction over the regulation of all other contractors. Subsection 489.107(5), Florida Statutes, provides as follows: Five members of Division I constitute a quorum, and five members of Division II constitute a quorum. The combined divisions shall meet together at such times as the board deems necessary, but neither division, nor any committee thereof, shall take action on any matter under the jurisdiction of the other division. However, if either division is unable to obtain a quorum for the purpose of conducting disciplinary proceedings, it may request members of the other division, who are otherwise qualified to serve on the division unable to obtain a quorum, to join in its deliberations. Such additional members shall vote and count toward a quorum only during those disciplinary proceedings. (emphasis supplied) After the Petitioner's application was deemed complete, the application was referred to an "application committee" appointed by the CILB chairperson and assigned the responsibility of reviewing pending applications. There is no specific reference in either statute or rule codifying the application committee process. The application committee generally meets one day prior to the regularly scheduled meeting of the full CILB. Application materials are provided to members of the application committee. An applicant receives a letter signed by an employee of the CILB providing notice of the application review committee meeting at which the pending application will be considered. The notice includes the following statement: Statute or rule does not require attendance; however, it is in your best interest to attend so those questions that may arise during the committee's review can be answered. Failure to attend may result in denial of your application as a result of unanswered questions. Applications are commonly referred to the Board for review when an applicant or the business has a criminal history, liens or judgments on their credit report, bankruptcies, complaints or unlicensed activity cases against them. If you are unsure why your application has been referred to the board please contact me at the number listed below. (emphasis in letter) The letter clearly indicates that not all applications are reviewed by the full CILB, and accordingly, it is reasonable to presume that there are applications being approved without review by the full CILB. The Petitioner's application was reviewed by an application committee on two occasions. The parties stipulated that the application committee that considered the Petitioner's application was not composed of either five Division I or five Division II Board members. At the committee meeting of July 13, 2006, the Petitioner was granted a continuance apparently to obtain additional information for CILB consideration. The Order of Continuance issued by the CILB and dated August 7, 2006, stated that the Petitioner "agreed to waive the statutory 90 day requirement and appear before the Board in August, 2006." On August 10, 2006, the application committee made a recommendation to the full CILB that the Petitioner's application be denied. On August 11, 2006, the CILB unanimously voted to approve the committee recommendation. The parties stipulated that the full CILB (composed of at least five Division I and five Division II Board members) voted on August 11, 2006. The extent to which the application was reviewed by the full CILB prior to the vote is unclear, as is whether all application materials were provided to the full CILB prior to consideration of the Petitioner's application. Although the Petitioner has sought to obtain a transcript of the meeting, it has not been made available by the CILB. By Notice of Intent to Deny, dated August 30, 2006, the Petitioner set forth the grounds for the denial as follows: Applicant failed to provide proof of restitution associated with a prior order, which constitutes a basis for denial under Section 489.129(7) F.S. The prior order being referenced in the August 30 letter is a Final Order of the Hillsborough County Building Board of Adjustment dated June 21, 1997, wherein the Petitioner was directed to make restitution to a former client.
Conclusions This matter is before Florida Agricultural and Mechanical University Board of Trustees (“FAMU,” “Petitioner,” or the “University”) for final agency action. By letter dated March 10, 2010, Gerald Grow, Respondent, was notified by the University that it was determined, as a result of an internal payroll audit, that he was overpaid in the amount of $1,165.77 by the University. Pursuant to Section 120.57(1), Florida Statutes, Respondent requested a disputed-fact hearing to protest the alleged salary overpayment and the cause was referred to the Division of Administrative Hearings (DOAH) on or about June 22, 2010. Respondent's request for hearing was assigned DOAH case number 10-003398. The Administrative Law Judge assigned to review the matter scheduled a disputed-fact hearing for September 20, 2010. On or about July 1, 2010, Respondent filed a notice advising that he tendered $1,165.77 to the University, that the tendered amount was accepted by the University, and that he was withdrawing his request for a disputed-fact hearing because the matter had been “settled.” By Order entered July 27, 2010, DOAH closed its file and relinquished jurisdiction to the University. Accordingly, it is hereby Ordered and Adjudged that Respondent's debt obligation to the University of $1,165.77 has been satisfied and further that the instant matter is closed. Respondent may seek judicial review of this Final Order pursuant to Florida Rule of Appeliate Procedure 9.190, applicable to review of quasi-judicial decisions of an administrative body not subject to the Administrative Procedure Act, by filing a petition for certiorari review within thirty (30) days of the date this Final Order is filed with the Agency Clerk. DONE and ORDERED this 1st day of November, 2010. pnts H Cvassate H. Ammons President File with the Agency this day of November, 2010. Agency Clerk Copy: Teresa Hardee, CFO and Vice President, Administrative and Financial Services Avery D. McKnight, General Counsel Linzie F. Bogan, Associate General Counsel, Director of Labor Relations Nellie C. Woodruff, Associate Vice President, Human Resources Ciaudia Liado, DOAH Clerk Gerald Grow, Respondent
The Issue The central issue in these cases is whether the Respondent committed the violations alleged in the administrative complaints; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the authority to regulate construction industry licensees. At all times material to the allegations of this matter, Respondent, Michael A. Christy, was licensed as a certified general contractor, license no. CG C013824, and was the qualifying agent for a company called Constructors Company International Inc., a Florida corporation doing business as ICC. All acts complained of related to ICC doing business in Dade County, Florida during the time following Hurricane Andrew. At all times material to this matter, Respondent's primary place of doing business was not Dade County, Florida. In August, 1992, Hurricane Andrew struck Dade County resulting in extensive damage to hundreds of homes. Due to the tremendous volume of work available, contractors from other areas of the state, such as Respondent, set up offices to do business in Miami. With Respondent's knowledge and consent, ICC began soliciting business in Dade County. Two officers of the corporation, Robert Hoskinson and Keith Grubb, solicited business directly with the public in Dade County. Respondent did not supervise their day-to-day activities and allowed them to place contract deposits into an ICC bank account over which Respondent did not have signatory authority or control. In fact, according to Respondent, Hoskinson and Grubb controlled all monies received by ICC for the Dade County activities. Respondent attempted to match contracts and deposits based upon building permits (which he was required to pull through the Dade County Building Department). This system was wrought with error, and failed to account for monies applicable to contracts for which permits were not pulled. In May or June of 1993, after soliciting at least sixty contracts for construction repair for Dade homeowners, Messrs. Hoskinson and Grubb departed Dade County for parts unknown. Not surprisingly, Respondent discovered ICC bank records and funds were also missing. In March, 1993, Mark Bouvy contracted with ICC to perform hurricane damage repairs to his home. The contract price for the work to be performed was $31,227.33. In connection with the contract, Mr. Bouvy put down deposits payable to ICC in the amount of $9,368.20. This amount was placed into a NationsBank account, account no. 3601642581. This account is the ICC bank account described above. Respondent did not know about the Bouvy contract nor the deposits at the time of the contract execution. Although Mr. Bouvy believed the deposits were necessary to begin work, no work was performed on the Bouvy/ICC contract. From March, 1993 through June, 1993, Mr. Bouvy made numerous telephone calls to the ICC office to attempt to motivate the company to perform on his contract. During that time ICC performed no work which benefited Mr. Bouvy. Plans which were promised in connection with the Bouvy contract were not completed. Mr. Bouvy contacted the architect who had been allegedly retained by ICC to prepare the drawings, but was unsuccessful in obtaining plans as the architect disavowed working with ICC. Finally, Mr. Bouvy notified ICC by letter of his intent to cancel the contract and demanded a return of his deposit. This demand resulted in the first contact between Respondent and Mr. Bouvy. Respondent, who was at his office in Tampa, spoke with Mr. Bouvy by telephone and attempted to resolve the dispute. The two reached a verbal understanding that ICC would perform as originally contracted. For whatever reasons, ICC did not complete the work as specified in the Bouvy contract (and as agreed to verbally by Respondent) nor did Respondent refund the deposit monies. Mr. Bouvy was damaged as a result of the acts or omissions of Respondent or agents of ICC in an amount not less than $9,368.20. With regard to the Castrillo property, May Rena Rodin, a licensed real estate agent, was authorized by Mr. Castrillo to obtain repairs to his hurricane-damaged home in Miami. To that end Ms. Rodin contracted with ICC for the repairs and provided an initial down payment in the amount of $6,000 for the repairs. The total amount of the contract executed on or about October 28, 1992, was $25,188.00. Ms. Rodin was responsible for the Castrillo property as the homeowner resides in Canada and, at all times material to this matter, used the home for rental purposes. Ms. Rodin supervised such rental and collected monies on behalf of the owner. ICC did not perform the contracted work on the Castrillo home. Despite reservations, Ms. Rodin gave ICC a second deposit of $5,481.06 in order to attempt to get the work done. ICC did not complete the work under the Castrillo contract, did not perform any work of value to the home, and did not refund the $11,481.06 paid by Ms. Rodin on behalf of the Castrillo project. Ms. Rodin also contracted with ICC for repairs to her own home. This contract, executed in November, 1992, was in the amount of $56,668.00. At the time of signing Ms. Rodin gave ICC a deposit down payment of $17,000.00 which was deposited into the NationsBank account identified above. ICC did perform work on the Rodin home; however, such work did not complete all terms of the contract. Ms. Rodin made additional payments in connection with the progress. The total of all payments to ICC was $40,663.00. During the course of the work on the Rodin home, a roofer placed a lien on the property claiming he had not been paid for work performed under the roofing subcontract. In addition to other problems known to her, this lien caused Ms. Rodin to distrust ICC. The amount of the lien was the approximate amount left to be paid on the contract after adjustments ($7,200.00). The contract amount had been reduced to approximately $47,000.00. ICC refused to complete the work on Ms. Rodin's house and Ms. Rodin refused to pay them any more without the work being completed. Ultimately, the roofer's lien issue was resolved in favor of the homeowner. Whether ICC owed the roofer is unknown. The roofer did not have an enforceable lien. As of the date of hearing, Ms. Rodin had still not completed all work at her home. As a result of a prior disciplinary case in 1985, Respondent was disciplined and fined $1,000.00 by the Construction Industry Licensing Board. Through January 26, 1996, the Department has incurred costs in the prosecution of this matter in an amount of $1,917.09.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order suspending Respondent's license, requiring him to make restitution to consumers Bouvy and Castrillo, requiring him to pay costs of this matter, and to pay an administrative fine in the amount $10,000.00. DONE AND ENTERED this 15th day of May, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1996. APPENDIX TO RECOMMENDED ORDER CASE NOS. 95-2857, 95-2858 and 95-2859 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 9, 13 through 16, 20 through 23, and 28 through 51 are accepted. Paragraph 10 is rejected as supposition as to its conclusion; it is accepted the two men left town at the time noted and that the monies and bank records also disappeared at that time; however, no other finding is made or relevant to this proceeding. With regard to paragraph 11, it is accepted that Respondent, as of the date of the hearing, had not provided copies of the financial records related to the ICC bank account in dispute. Paragraph 12 is rejected as unnecessary or comment. Paragraph 17 is rejected as hearsay; it is accepted only as to Mr. Bouvy's understanding of why a deposit was required; otherwise also irrelevant. Paragraph 18 is rejected as repetitive or irrelevant. It is accepted that Respondent did not control the subject bank account and that he did little to verify the accuracy of the company's records or control the financial activities of the company. Paragraph 19 is rejected as irrelevant. The contract for Mr. Bouvy was later verbally accepted, unchanged, by Respondent in any event. The first sentence of paragraph 24 is accepted; the remainder is rejected as irrelevant. Paragraphs 25, 26, and 27 are rejected as irrelevant Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1, 5, 7 through 10, 12 through 15, 19, 20, 23, 24, 25, 33, 34, 35, 36, and 46 are accepted. With regard to paragraph 2, it is accepted that Respondent did not have signatory power over the NationsBank account used in connection with these three consumers; otherwise rejected as not supported by the evidence. With regard to paragraph 3, it is accepted that Respondent allowed ICC employees to go into the Dade County market area which was devastated by Hurricane Andrew to solicit business on behalf of the company; otherwise rejected as either not supported by the weight of the credible evidence or irrelevant to the ultimate issues of this case. With regard to paragraph 4, it is accepted that the ICC employees and the bank records and funds belonging to the company disappeared at approximately the same time; otherwise rejected as supposition not supported by direct evidence or irrelevant to the ultimate issues of the case if referring to the "contract" between the employees and the company and not the contract entered with consumers. Paragraph 6 is rejected as irrelevant. Paragraph 11 is rejected as irrelevant. With regard to paragraph 16, it is accepted that the architect believes he visited the Bouvy home; however, he did not meet personally with Mr. Bouvy regarding the plans needed for the home. With regard to paragraph 17, it is accepted that the architect prepared preliminary drawings for Mr. Bouvy which were never accepted by the consumer; otherwise rejected as contrary to the weight of the credible evidence. With regard to paragraph 18, if true, irrelevant since Mr. Bouvy had never accepted the plans and agreed that they would be used for the work to be performed. With regard to paragraph 21, it is rejected to the extent that it suggests Mr. Bouvy advised anyone that the Respondent had presented acceptable plans for review; it may be the comment was attributed to another contractor's plan who was to perform work for Mr. Bouvy. Rejection is contrary to the weight of the credible evidence. With regard to paragraph 22, no finding is made as to whether the address is accurate since the record is conflicting on this point. With regard to paragraph 26, no finding is made as to the exact amount being $11,000; such is rejected as contrary to the weight of the credible evidence. With regard to paragraph 27, the payment was made to ICC or its agent; otherwise rejected as supposition or irrelevant. Paragraphs 28 through 32 are rejected as contrary to the weight of the credible evidence or irrelevant. Paragraphs 37 through 45 are rejected as contrary to the weight of the credible evidence, irrelevant, repetitive, supposition not supported by directed evidence, or hearsay. With regard to paragraphs 47 and 48, it is accepted that Respondent made an offer to complete work on Ms. Rodin's home; however, by that time she was too fearful of the company to do business with it. The lien incident and her personal knowledge of the Castrillo home influenced her decision. While the lien may have been unenforceable, no evidence of full payment to the subcontractor was presented in this cause. COPIES FURNISHED: Richard Hickok Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Construction Industry Licensing Board Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gary Asbell Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles G. White, Esquire 2250 Southwest Third Avenue, Suite 150 Miami, Florida 33129
Other Judicial Opinions A party who is adversely by this Final Order is entitled to judicial review in the District Court of Appeal, pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of Florida Agricultural and Mechanical University Board of Trustees, Office of the General Counsel, Lee Hall, Suite 300, Tallahassee, Florida 32307, and a second copy, accompanied by filing fees prescribed by law, with the First District Court of Appeal. The notice of appeal must be filed within thirty (30) days after the date this Final Order is filed with the Office of the Agency Clerk. Copy: Joseph Bakker, Interim Vice President, Administrative and Financial Services Jacqueline Maxey, Assistant Vice President, Administrative and Financial Services Stephany Fall, Director, Procurement Services Claudia Llado, DOAH Clerk Avery D. McKnight, Esq. Shira R. Thomas, Esq. David C. Self, li, Esq. Albert E. Dotson, Esq. Eileen Ball Mehta, Esq. Eric Singer, Esq. NOTICE OF NO AWARD ITN # 0005-2013 Dining Service Operations This constitutes the University’s official notification to withdraw its Notice of Intent to Award dated March 18, 2013 and to withhold the award on the contract and to reject all responses to the ITN in accordance with Sections 3.15 and 3.24 of this solicitation document. Current Notification: the solicitation for dining services will be reissued as a Request for Proposals. This posting period commences 10:30 AM on April 15, 2013 and ends 10:30 AM on April 18, 2013. Failure to file a protest within the time prescribed in FAMU Regulation 6.005 and Section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. All bids/proposals/negotiations accepted by the University are subject to the University’s Terms and Conditions and any and all additional Terms and Conditions submitted by the Bidder/Proposers/Offerors are rejected and shall have no force and effects. Offers from the vendors listed here are the only offers received timely for the opening date and time. All other offers submitted in response to this solicitation, if any, are hereby rejected as late. EXHIBIT © Bilzin Sumberg ATTORNEYS AT LAW Eric Singer, Esquire Fal 305-350-2354 Fax 305-351-2170 esinger@bilzin.com April 16, 2013 VIA MAIL AND E-MAIL David C. Self, Il, Esquire Associate General Counsel Florida A&M University Office of the General Counsel 1601 S. Martin Luther King, Jr., Blvd. 300 Lee Hall Tallahassee, FL 32307 david. self@famu.edu Re: ITN No. 0005-2013 / Protest Bond Dear Mr. Self: As you know, pursuant to the FAMU regulations, we filed a $10,000 protest bond with the University on March 28, 2013, in conjunction with Sodexo's formal written protest. On April 15, 2013, FAMU mooted Sodexo's protest by withdrawing the solicitation. Accordingly, because no protest took place and no related costs were adjudged against Sodexo, Sodexo respectfully requests, that FAMU return its protest bond in full. Sincerely, Gee. Samy > Eric Singer ce: Fred Formichella, Senior Vice President Thomas R. Stanton, Esquire Albert E. Dotson, Jr., Esquire Eileen Ball Mehta, Esquire EXHIBIT MIAME 3634663.1 80370/42460 BILZIN SUMBERG BAENA PRICE & AXELROO LLP ven bug COM 1450 Brickell Avenue, 23rd Floor, Miami, FL 33131-3456 Tel 305.374.7580 Fax 305.374.7593 ven ie De
Findings Of Fact The Division of Employment and Training has alleged that the Florida Farmworkers Council, Inc. in administering grant funds received from the State of Florida and, pursuant to the Comprehensive Employment and Training Act (CETA), failed to comply with the applicable rules and regulations. As a result thereof, on November 23, 1981, the Division of Employment and Training issued a Final Determination disallowing $46,071.00. At the time of the hearing, the amount disallowed had been reduced to $17,417.00 and thereafter to $16,780.00. These were based upon documentation presented by the Respondent. The Respondent agreed that a total of $339.00 was due and owing to the Division. The Florida Farmworkers Council, Inc. alleged that there were no expenditures in violation of CETA or the applicable federal and state laws, rules, and regulations. The findings of fact of the Hearing Officer are hereby adopted and accepted. The findings of law are accepted and adopted, except to the extent that the $2,737.00 paid to Damon Richardson was recommended for allowance though his application did not show exact date of termination from prior employment. The determination of eligibility is based upon the application. See 20 C.F.R. 676.75-3(b). Without a full and complete application it is impossible to determine participant eligibility. WHEREFORE, IT IS ORDERED and ADJUDGED: That within thirty (30) days of the date of this Order Florida Farmworkers Council, Inc. shall remit $16,780.00 expended in violation of the Comprehensive Employment and Training Act and applicable federal and state laws, rules and regulations. In addition thereto, Florida Farmworkers Council, Inc. shall pay $339.00 which it agreed is due and owing. In the event either party disagrees with this determination, an appeal can be filed with Mr. Lawrence Weatherford, Regional Administrator, United States Department of Labor, 1371 Peachtree Street, N.E., Room 405, Atlanta, Georgia 30309. The provisions pertaining to the appeal process, 20 C.F.R. 676.83 et. seq., are attached hereto. Dated this 29th day of June, 1982, in Tallahassee, Leon County, Florida. CHARLES R. RUSSELL, Director Division of Employment and Training CERTIFICATE OF SERVICE I DO HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail to Eugene T. Gillis, Esquire, Florida Farmworkers Council, Inc., 1975 East Sunrise Boulevard, Ft. Lauderdale, Florida 33304 this 29th day of June, 1982. Gloria Byrd
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter its Final Order assessing Respondent the amount of $14,052 due in overpayments under CETA contracts in addition to amounts Respondent has previously agreed are returnable. DONE and ENTERED this 25th day of May, 1982 at Tallahassee, Florida. R. T. CARPENTER 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 25th day of May, 1982.
