Findings Of Fact The Respondent is registered with the Board as a land surveyor. He holds registration number 2027. During October, 1976, Harold J. Read, Jr., a construction contractor, retained the Respondent to make a survey of lots 9067 and 9068, on block 294, in the Florida Shores subdivision, unit number 10, located in Volusia County, Florida. The lots were owned by Read, and it was his intention to construct a house on the lots for resale. Read needed the survey in order to clear the land, and to properly locate the house on the lots. On October 8, 1976, a survey team employed by the Respondent went to the site to perform the survey. The lots are located on Royal Palm Drive. The southeast corner of the lots is located 120 feet from the corner of Royal Palm Drive and 26th Street. The survey team located the concrete monument or survey marker at the northwest corner of Royal Palm and 26th Street, and set a "tin tab" in the middle of Royal Palm Drive extending directly across the street from the permanent monument. A "tin tab" is a metal disc approximately twice the size of a quarter which is used by surveyors to make appropriate markings in the middle of streets. The tin tab is nailed into the street. The survey team then measured 120 feet along the center of Royal Palm Drive and set a tin tab which was directly across from the southeast corner of the lots. The team then measured 80 feet further along Royal Palm Drive and set a tin tab to designate the northeast corner of the lots. All of the lots in the Florida Shores subdivision are 40 feet by 125 feet, therefore the two lots owned by Read had an 80 foot frontage on Royal Palm Drive. The team measured directly from the tin tabs over to the edge of the Royal Palm Drive right-of-way and located the corners of the lots. Spaces were cleared and iron pipes were placed in the ground to mark the corners. Next to each pipe, a four foot long piece of wood lath was placed approximately eight inches in the ground, and yellow flags were tied to the stakes. These stakes were placed at the corners in order to allow the owner to easily see the locations of the corners. Four foot long stakes were used because the lots had not been cleared and the growth was rather heavy. When the southeast and northeast corners were located in this manner, the survey team performed a similar operation to locate the southwest and northwest corners. The team did not determine these corners by measuring 125 feet from the eastern corners because of the thickness of the underbrush. Instead, the team measured down 26th street 125 feet, and set the western corners walking along a cleared electrical wire right-of-way. Iron pipes and wood stakes with yellow flags were placed at each of the western boundaries. The survey team was at the site for approximately one and one half hours. Iron reinforcing rods which appeared to be markings from previous surveys were found at at least two of the corners, and in order to set the iron pipes, the survey team needed to clear underbrush. On October 13, 1976, Harold Read, several of his employees, and a dozer operator who he had hired to clear the lots appeared at the lots to clear them, and to locate the house. They found stakes somewhat shorter than those placed by the surveyors. One of the Board's witnesses testified that these stakes had yellow flags tied to them, but the rest of the witnesses testified that the flags were orange. At least two, and possibly three of the stakes were located next to iron pipes which appeared to be the corner markers. Read assumed that these stakes marked the corners, and he instructed the dozer operator to clear the property accordingly. After the lots were cleared, Read, with his employees, located the house on the lot so that there would be approximately ten feet between each end of the house and the northern and southern boundaries of the lots. Read then commenced to build the house, and in January, 1977, the house was nearly completed. In order to complete financing arrangements the lending institution that had been utilized by Read requested that the lots be resurveyed in order to assure that the house was appropriately located. On January 29, 1977, the Respondent went to the lots to perform the resurvey. He found that the lots had been cleared twenty feet too far south, and that the house had been located so that it encroached by ten feet into the lot which directly adjoined Read's lots to the south. He checked and found that the tin tabs placed by his crew were still in the center of Royal Palm Drive designating what would have been the correct boundaries of the lot. He did not find the pipes that would have marked the correct corners, so he reset pipes at the appropriate corner locations. Thereafter the Respondent checked the information with his survey team, and verified that the original survey had been done correctly. He then contacted Read about the discrepancies. Read, the Respondent, and several others visited the site later that day. The Respondent denied, and continues to deny, that the original survey was conducted improperly. Read has consistently maintained that he correctly followed the stakes that were at the site. No explanation was offered at the hearing, and it does not appear that any of the parties have evidence which would explain how the stakes and pipes came to be moved from the correct locations on October 8, when the survey was conducted, to incorrect locations on October 13, when the lots were cleared, and the house was located. It affirmatively appears from the evidence that the Respondent's crew properly performed the survey and that the Respondent was not responsible for the stakes being moved. Evidence contrary to this finding has been considered and rejected.
The Issue Whether Respondents failed to abide by various minimal technical standards applicable to the practice of surveying and mapping, in violation of Florida Administrative Code Rules 5J- and 5J-17.052, or were guilty of negligence in the practice of surveying and mapping, all in violation of section 472.0351, Florida Statutes (2012),1/ and if so, what is the appropriate sanction.
Findings Of Fact The Department is the state entity charged with regulating the practice of land surveying and mapping, pursuant to chapter 472, Florida Statutes. At all times material to this case, Mr. Haas was licensed as a professional surveyor and mapper in the state of Florida, with license number LS3708. Mr. Haas was employed by Exacta, which holds license number LB7337. A complaint was filed with the Department on January 27, 2014, by Mr. Charles B. Hatcher of Associated Surveyors, Inc., alleging numerous minimum technical standards errors on a survey prepared by Mr. Haas on September 25, 2012. Petitioner has failed to prosecute Mr. Haas or Exacta for the violations alleged in the complaint made by Mr. Hatcher, on January 27, 2014. Administrative complaints alleging identical counts were filed against Mr. Haas and Exacta. Count I alleges that some of the field data was not dated. Count I also alleges that the coordinates are not on the same datum as the survey, and thus, the survey map cannot be substantiated. Page 12 of Exhibit P-1, a page of computation notes, does not contain the date the information was observed and collected. Further, it is clear that page 12 is not simply a continuation of pages 10 and 11 (which are two halves of the same document) but is instead a separate document that is undated. Data shown in the raw data file and coordinates list differed from that reflected on the survey map. It appeared, however, that the data had been rotated and translated. Rotation and translation is an accepted survey technique which allows modern instrumentation to record data based upon an assumed initial point and bearing, and then calculate all further points and bearings relative to that initial measurement. This information recorded by the instrument must then be rotated and translated back to match the actual points and bearings on a parcel. The Department failed to show that the survey map could not be substantiated. As Mr. Gloer testified during cross examination: Q. My question is, wasn't it clear to you that the assumed bearing that Mr. Blackmon made, our party chief, on page 4 in his instrument-–in his data collector between Points 1 and 2 of a bearing of north zero degrees, or an azimuth of north zero degrees--isn't it clear to you that then in order for it to make sense on this drawing and all the other lines too, that you would have to rotate that to get on the same bearing basis? Doesn't that jump out to you as an expert, having done over 2,000 surveys? A. At the time two years-–well, it's been a year. A year ago when I did this original review, I based it on the data that was supplied to me. Now that you have explained it to me and I see that there is a note here that said they rotated it, yes, it's clear to me now, yes. Count II alleges that the field notes that are dated show a date of 9/24/12, while the survey drawing shows a field work date of 9/25/12. The parties stipulated as to the different dates shown on these documents.2/ The dated field notes show that field work was performed on September 24, 2012. The clear and convincing evidence is that the date of data acquisition was September 24, 2012, while the date on the survey drawing is September 25, 2012. Count III notes that the survey shows a found 3/4" iron rod at the point of beginning, notes that this appears to be the same corner shown on the coordinate list as point number 8, and states that the field notes do not show the setting or locating of the corner. The complaint concludes that this corner is not supported by accurate survey measurements. The notation "P.O.B." is found at the lowest corner of the property on the survey map, and underneath the corner is found the note "3/4 FIR NO ID." According to the Surveyor's Legend found on page 2, this indicates that the point of beginning is marked by a 3/4 inch found iron rod without identification, as Mr. Gloer testified. While page 12 shows a point marked as "set #8 @ DEED Dist/Dist frm 5 & 152" on the lot corner, it indicates this monument was set, and does not indicate a found iron rod. Point "6" has no notation at all on page 12 and does not appear to be aligned on the southeast property line, but point 6 is reflected in the raw data file and the coordinates list. The measurements to point 6, and description of it, are consistent with and support the property corner marked as the P.O.B. on the survey map. Count IV alleges that bearings shown on the survey as measured are not substantiated by the survey measurements in the raw data or coordinate list. Mr. Gloer testified that he inversed the data from the coordinates and that the bearings were different. However, as he admitted, he did not consider that the recorded survey measurements might reflect an assumed initial location and bearing and that they would therefore need to be rotated and translated to substantiate the bearings shown on the survey map. The Department failed to show by clear and convincing evidence that the bearings shown on the survey were not substantiated by measurements. Count V alleges that the three points used to locate the improvements, monumentation, and control for the survey are not part of a closed traverse and are not based on redundant measurements. As Mr. Gloer testified, the distance between points 1 and 2 was verified by redundant measurements: once measuring the distance from point 1 to point 2, and once measuring the distance from point 2 back to point 1. However, the angle created between points 2, 1, and 150 was not similarly measured on more than one occasion or from the opposite direction. Respondents argue that use of an instrument such as the robotic total station used here, which takes numerous measurements very quickly and then averages them, is, by definition, taking redundant measurements. However, Mr. Gloer testified that in his expert opinion, "redundant" measurement has a more specific meaning. It requires that an "independent check" be made. He noted that if a rodman had the rod on his toe, all of the measurements almost instantaneously taken and averaged by an instrument would reflect the same incorrect information and so these multiple readings would not serve the purpose of revealing the mistake and preventing the error. Only an independent measure, like shooting the distance backwards, would likely reveal the error and thus meet the purpose of a "redundant" measurement. The angle created between points 2, 1, and 150 was not verified by redundant measurements. Count VI alleges that the survey is based on found monumentation on the parcel being surveyed. No attempt was shown to find the point of commencement or boundary monumentation along the boundary of Beauclerc Gardens Replat, both of which are called for in the description. The legal description provides in part, "commence at an iron pipe located in the northeasterly line of Section 40, Township and Range aforementioned, at a point where said line is intersected by the line dividing Sections 31 and 32." Mr. Gloer testified that to ensure that the position of the boundary of real property was determined in complete accord with this real property description, an attempt to find the point of commencement and the boundary of Beauclerc Gardens Replat was required, and that there was no evidence that this was done. However, no evidence was presented to indicate that the survey as conducted was not in complete accord with the property description as attached to the survey map. Count VII alleges that the survey does not tie to an established identifiable real property corner. As Mr. Gloer testified, the parcel being surveyed was described by metes and bounds. Nothing on the survey tied into any identified corner of Beauclerc Gardens. The survey did not tie into a real property corner of either lot 1 or 2 of Beauclerc Gardens, which were the closest lots. Instead, the survey was tied to a monument on the line south of Beauclerc Terrace on that right-of-way, identified on page 12 as point "151." That point was not an established identifiable real property corner of Beauclerc Gardens. As Mr. Gloer testified, the survey did not tie to an established identifiable real property corner. Count VIII alleges that the field notes and raw data do not show either the fence corner or the water meter that supposedly made the two nearby corners inaccessible. The computation notes at page 12 and the survey map on page 1 do not show a monument set at the most easterly corner of the lot, but they do show an offset point and reasonably indicate that a water meter is at the corner. Similarly, neither the computation notes nor survey map show a monument set at the most westerly corner of the lot, but the survey map shows an offset monument and has an indication that there is a fence post at the corner. Mr. Gloer noted that neither the water meter nor the fence post, if they existed, had been positively located on the field notes or raw data as being at the corners.3/ Mr. Gloer noted that the coordinates list indicated that the location of the water meter was calculated. Count IX alleges that there is a monument shown in the field notes, point number 6, but not shown on the survey. As discussed earlier in connection with Count III, the field computation notes appear to show two monuments in fairly close proximity to the southernmost corner of the property. The survey map at page 1 shows only one monument at this corner, labeled "P.O.B." and described as "3/4 FIR NO ID" which, as noted above, refers to a 3/4 inch found iron rod without identification. This descriptive information appears to correlate with the side shot of point 6 found on page 6 of the raw data file and page 9 of the coordinates list. While the field notes are confusing, the Department did not show by clear and convincing evidence that point number 6 was not shown on the survey. Count X alleges that all the monuments were tied by side shots without a redundancy of the measurements. The raw data at page 4 indicate that the 1/2 inch found iron pipe and cap marked with "R. Miller," which is shown as the easternmost monument on the survey, was located by a side shot, a single measurement, and that Mr. Blackmon only turned one angle and one distance to that point. Similarly, the data at page 5 show that the 1/2 inch found iron pipe with no identification which is shown as the northernmost monument on the survey was located by a single side shot. Again, the data on page 6 show that the 3/4 inch found iron rod without identification which is shown as the southernmost monument and point of beginning on the survey was located by a side shot. The data sheets show no other ties to these points taken from another position, or otherwise demonstrate that redundant measurements were taken. Count XI alleges that the survey dated September 25, 2012, was negligently prepared. On this point, the Transcript records: Q. And then one final question, Mr. Gloer. In your professional opinion, expert opinion, do you believe that these ten MTS violations that you have discovered, taken as a whole constitutes-–of the minimum technical standards, taken as a whole, constitutes negligence in the practice of surveying and mapping in the State of Florida? A. I do. This question and answer, predicated on considering ten other violations as a whole, offers no insight as to whether a fewer number of violations might constitute negligence, or whether some of the violations are so serious, or are of such a nature, that they might do so even standing alone. No evidence was introduced at hearing to indicate that Mr. Haas' professional license has been previously disciplined. Exacta was the subject of five earlier administrative complaints alleging violations of Minimal Technical Standards, which were the subject of a Settlement Stipulation. Given the terms of the stipulation, there is no competent evidence showing that Exacta committed prior offenses. However, the Corrected Final Order Approving Settlement Stipulation constitutes prior disciplinary action against Exacta.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services, Board of Professional Surveyors and Mappers: Finding Wesley Brian Haas and Exacta Land Surveyors, Inc., in violation of section 742.0351(1)(h), Florida Statutes, for failing to conduct surveying and mapping in accordance with the minimum technical standards prescribed by Florida Administrative Code Rules 5J-17.051(2)(b)3., 5J-17.051(3)(b)3., 5J-17.051(3)(b)15.b.(II), 5J-17.052(2)(a)8., and 5J- 17.052(2)(b)7.; imposing an administrative fine of $1500.00 on Wesley Brian Haas; and imposing an administrative fine of $4000.00 on Exacta Land Surveyors, Inc. DONE AND ENTERED this 14th day of April, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2015.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On June 21, 1991, petitioner, Department of Transportation (DOT), issued a notice to show cause alleging that a sign owned by respondent, Florida Roadmaster Inn Services Corporation (respondent or corporation), was in violation of the law because respondent had not obtained a permit. The sign is located north of the southbound exit ramp at the intersection of State Road 143 and Interstate Highway 75 (I-75) in Jennings, Florida, which is the first exit on I-75 after entering the State. The parties have stipulated that the structure meets the definition of a sign, I-75 is a part of the federal interstate system, the sign is within 660 feet of I-75, and on the date the notice to show cause was issued respondent did not have a permit from petitioner to erect the sign. The facts giving rise to this dispute are somewhat lengthy and are set forth in the following findings. The sign poles on which the sign is attached were erected in the northwestern quadrant of the intersection on an undisclosed date in 1988 by Victor J. Patel, who is the nephew of Dr. Arvind B. Patel, the secretary of and a 50% shareholder in the corporation. 1/ However, Dr. Patel acknowledged at hearing that he furnished his nephew with the capital necessary to erect the sign. At that time, a Best Western motel owned by Shree Realty, Inc., in which Dr. Patel's wife and nephew are principals, was located across the street on the south side of State Road 143 in the southwestern quadrant of the intersection and was managed by Victor. Although the motel then and now has its own sign, that sign is not visible to motorists traveling on I-75. The copy (printed message) on the sign which is in dispute here originally carried the logo of Best Western and a smaller message reading "North Florida Information Center". The smaller message was intended to advertise a small building at the foot of the sign which had also been built by Victor (with his uncle's capital) in 1988 and which was used as a tourist information center in conjunction with the motel. On an undisclosed date in 1990, Shree Realty, Inc. leased the motel to Jennings Motel Corporation (JMC), in which Bruce Haydon, J. Cary Parrish and George D. Haydon were principals. At the same time, the motel's name was changed to "Roadmaster Inn". A few months later, or around September 1990, the printed message on respondent's sign was changed to read "Roadmaster Inn" while underneath that message on a smaller sign were the words "North Fl. Tourist Inn- Fo". The issuance of the notice to show cause came about when a DOT outdoor advertising inspector, Glenel Bowden, had occasion to observe the change in the copy on the sign. After Bowden made a preliminary investigation, he concluded that the sign required a permit because it was an "off-premises sign", and because no permit tag was affixed to the sign, he recommended that a notice to show cause be issued. His recommendation was accepted, and the district administrator for outdoor advertising signed a notice to show cause on June 21, 1991. On the theory that the printed message merely reflected the name of the entity which was engaged in providing services on the premises, and thus the corporation was entitled to an exemption from permitting requirements under Subsection 479.16(1), Florida Statutes, respondent requested a hearing to contest the agency's preliminary determination. In order to qualify for an exemption of the nature sought by respondent, the owner of a sign must generally show that a business is being conducted on the premises (land) where the sign is located, the sign carries the name and is an integral part of the establishment, and the business is the only activity being conducted on the premises. In this regard, it is agreed that no other businesses are located on the premises except the questioned activities of respondent. In addition, the building in which the activity is being conducted must meet the minimum requirements of the Southern Building Code. As to this latter requirement, DOT stated at hearing that it does not contest the structural integrity of the building. However, it is DOT's position that there is no legitimate business activity being conducted on the premises by the corporation, and that the sign is actually being used to promote the motel business across the street. Respondent is a Florida corporation formed on July 3, 1990. The articles of incorporation state that the corporation's nature of business is to "engage in consulting and marketing services to the lodging industry and any other related consulting and marketing to the food, fuel and lodging industries." It also lists the location of the sign (I-75 and SR 143, Route 1, Box 222A, Jennings, Florida) as its principal place of business. The corporation has two shareholders, Dr. Patel, who resides in Hoffman Estates, Illinois (the greater Chicago area) and serves as secretary, and James T. Bounds, a self-employed business consultant who works out of his home in Ocala, Florida, and serves as president of the corporation. Both men own 50% of the shares of stock and are the only two directors. The corporation has never had any employees on its payroll. Although the corporation received a federal taxpayer identification number in 1990, a return has never been filed since the corporation has never generated any income. Likewise, it has no corporate checking or bank account nor a telephone number in its corporate name. In addition, it has no occupational license from the City of Jennings or Hamilton County. The corporate assets consist of a leasehold interest in an easement to and the property on which the sign sits, marketing aids, presentation material and brochures, all of unknown value. According to Bounds, who is identified as the corporation's registered agent at his Ocala address, his contribution to the corporation (in return for one-half of the stock) is personal services in the form of travel expenses incurred to perform "marketing services". He estimated he has contributed between $30,000 and $50,000 in the form of marketing service expenses since the inception of the corporation. On the other hand, Dr. Patel claimed a personal contribution in the corporation of approximately $30,000 to $40,000 in return for his share of the stock. This amount was derived by taking the bills Dr. Patel had paid for publications, maintenance, utilities, interest on the sign and building and the like. Because they are "good friends", Bounds and Dr. Patel have no written agreement defining each other's contributions to the corporation nor stating who is responsible for providing a particular service or paying bills. The site of the sign was chosen because of its high visibility and close proximity to I-75 on which numerous truckers and tourists enter the state. According to Bounds, who takes credit for originating the idea for the business, the purpose of the corporation is to market a service to various motels, including Roadmaster Inns, and secure agreements or contracts from truckers to use those motel facilities at a reduced rate. If successful in its endeavors, the corporation would guarantee a 20% - 30% weekly occupancy rate for the motels that use its services. As an aid in communicating with the truckers and other motorists, the corporation represents that if it prevails in this action, it intends to secure a radio license from the Federal Communications Commission and operate a special low-frequency broadcasting station at the small building to give additional information on the corporation's services to passing motorists within a five mile radius who tune in that frequency on their radios. An employee would be stationed in the building to hand out brochures and to communicate with truckers via the radio. Bounds added that the corporation is also seeking to secure a trademark on the name "Roadmaster Inns" with the U. S. Patent Office, and once obtained, the corporation will seek to market Roadmaster Inn franchises. As of the date of hearing, Bounds represented that the corporation had registered the name "Roadmaster Inn" in the states of Florida and Georgia. Bounds is responsible for the day to day management of the corporation. He acknowledged that his activities to date on behalf of the corporation consist of making "direct calls" (presumably by telephone from his home or automobile) on trucking companies at their place of business in an attempt to secure contracts for the drivers to use various motels at reduced rates. Because the corporation has no telephone, Bounds advises potential clients to contact him at his Ocala home. Except for speaking with a developer in Tampa a week prior to hearing about building a Roadmaster Inn at a Tampa development project, there were no other specifics given regarding Bounds' corporate activities. Indeed, there is no evidence that, since the corporation was formed almost two years ago, any contracts have been executed by trucking companies or other entities, that any motels have agreed to use the services of the corporation, or that any Roadmaster Inn franchises have been sold. This is confirmed by the fact that the corporation has never generated any revenue. Various brochures have been printed and distributed ostensibly on behalf of the corporation. One brochure merely advertises a Roadmaster Inn owned by Dr. Patel and located in Valdosta, Georgia, while another advertises the Roadmaster Inn in Jennings, Florida. Both carry the same "800" telephone number, which is answered by the reservationist at a Roadway Inn whose location is not of record. Neither brochure makes reference to the corporation or its services. A third brochure advertises the brand name "Roadmaster Inn" and gives a post office box in Des Plaines, Illinois as its address. According to Dr. Patel, this brochure has generated "several inquiries a week" at his office in Des Plaines. Again, however, the brochure does not carry the corporation's name and simply provides advertising for the generic name "Roadmaster Inn". It is noteworthy that no advertisement offered into evidence at hearing reflects the corporation address as the same address where the sign is erected. As noted earlier, the building at the base of the sign was once used by the Best Western motel as a "tourist information center" at which pamphelets describing various tourist attractions were handed out to motorists just entering the State. According to Bounds, the building was originally designed to accommodate one person to hand out information brochures to the public and communicate with truck drivers by CB radio from a low frequency radio tower. However, a CB radio has never been installed. The building, which was described by Bounds as being "very small" and by Bowden as being around 8' x 12' in size with a counter, display case for pamphelets and two chairs, has electricity, running water, air-conditioning, restroom facilities, and an access ramp for the handicapped. Although there has been no telephone at the building for some time, Victor Patel, the former manager of the motel, claimed that prior to July 1991 there was a telephone in the building "off and on". The easiest route from State Road 143 to the building is on a road which runs through a trailer park located off of State Road 143. However, the corporation was denied use of that road by the park's owner and consequently anyone desiring to visit the premises must use an unlighted, unmarked and unpaved "track" which runs along a fence on State Road 143. The track, which crosses a large drainage ditch, is actually an easement assigned to the corporation by Dr. Patel and is discussed in a subsequent finding. There are no signs directing members of the public on how to travel to the building. In this regard, Bounds agreed that access to the land on which the sign and building are located is not "particularly easy" for members of the public. The corporation has never had an employee since its formation. At one time, an elderly individual, Roy Cammeron, spent several hours per day for almost a year manning the booth. Despite Dr. Patel's suggestion to the contrary, 2/ it may be reasonably inferred from the evidence that Cammeron was an employee of the motel since the building key was kept at the motel and Cammeron was required to pick up and return the key after each visit to the building, he was supervised by the motel's manager, Victor J. Patel, who monitored Cammeron's activities, and Cammeron maintained constant communications with Victor by walkie-talkie. Also, Victor stated that one of Cammeron's duties was to hand out motel brochures. Besides Cammeron, Bounds contended that on undisclosed occasions he visited the building "usually" twice a week for unspecified purposes. However, he conceded that business on behalf of the corporation is conducted out of his home. At hearing, Dr. Patel denied that he has any ownership interest in the Roadmaster Inn which is located across the street from the corporation's sign. However, the corporation which owns the motel and leases the same to JMC uses the same address in Hoffman Estates, Illinois as does Dr. Patel, and Dr. Patel testified that he participated on behalf of Shree Realty, Inc. in its negotiations with JMC for the lease of the property in 1990 and for a promissory note later executed by two JMC principals in favor of Shree Realty on November 27, 1991. These considerations and further testimony given by Dr. Patel (see, for example, page 119 of transcript) support a finding that Dr. Patel either owns or exercises control over the motel. The land on which the sign and building are located is actually owned by Willie and Martha Butler who reside in Jennings. On July 22, 1988, they leased for a period of twenty years the land and an easement for access to the property to Victor L. Patel. 3/ The lease authorized Victor to construct a sign. The following day, Victor leased for a period of 48 months his interest in the land and easement to his uncle, who then furnished Victor with $80,000 to construct the sign and small building a short time later. By an undated and unwitnessed typed addendum to the lease, but presumably after July 3, 1990, Dr. Patel purportedly assigned his rights in the lease to the corporation. According to Bruce Haydon, who represented he is president of JMC, that entity has no proprietary interest in the sign. However, under the terms of its lease with Shree Realty, Inc., JMC is obligated to pay the electric bill for the illuminated sign and the monthly lease payments owed the Butlers under the real property lease originally executed by the Butlers and Victor Patel in July 1988. Although the lease was not offered into evidence, these terms were confirmed by Dr. Patel. The corporation does not directly receive the JMC payments. However, even though there is no formal agreement between JMC and the corporation, by making these payments, JMC effectively relieves the corporation (as the leaseholder) of the responsibility of paying the sign's electric bill and the cost of the easement to its premises. The lease provides further that if the sign is removed as a result of a proceeding such as this, there will be no reduction in the amount of lease payments owed by JWC. At hearing, Haydon also contended that Dr. Patel orally agreed that if the motel acquires an Econo Lodge franchise, as it now plans to do, and changes its name from Roadmaster Inn to Econo Lodge, Dr. Patel will change the copy on the sign to "Econo Lodge". Dr. Patel denied this assertion. It should be noted that Dr. Patel (presumably on behalf of Shree Realty, Inc.) is now embroiled with Haydon and JMC in a "major" lawsuit over a substantial amount of money. Before erecting the sign, Dr. Patel spoke with Bowden, the DOT sign inspector. Bowden advised him that there must be a business conducted on the premises where the sign was erected in order for the sign to be legal. However, Bowden would not commit this advice to writing, and he told Dr. Patel that DOT would have to "evaluate" the matter once the sign was erected in order to see if it was legal. Thus, there were no representations by DOT to respondent regarding the type of activities necessary for respondent to obtain an exemption, there was no later change in position by DOT, and therefore respondent could not have relied on such representations to its detriment. Based on the foregoing matters, it is found that there were no meaningful business activities conducted by the corporation on the premises where the sign is located either on or before June 19, 1991, when the notice to show cause was issued, or from that time forward to the date of final hearing. To the extent any activities have been conducted on behalf of the corporation, these have been conducted at such places as Ocala, Florida, and Des Plaines, Illinois. Therefore, it is found that the sign and its message are not an integral part of a business being conducted on the premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that a final order be entered denying respondent's request for an exemption and ordering the removal of respondent's sign located at State Road 143 and I-75 in Jennings, Florida. DONE AND ORDERED this 24th day of March, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1992.
The Issue The issue is whether Respondent's construction activities violated Department standards and created an unsafe road condition, as alleged in the Department's Amended Violation and Notice to Show Cause - Non-Compliance with Permit Conditions (Notice to Show Cause) issued on March 1, 2016.
Findings Of Fact Background The Department is the state agency responsible for regulating access to the state highway system. See § 335.182, Fla. Stat. To ensure that the motoring public is safe, the Department has adopted and incorporated by reference design standards, standard specifications, and a Plans Preparation Manual (PPM) that must be adhered to by contractors when working on state roads. See Fla. Admin. Code R. 14-96.008. Respondent is an Orlando engineering firm whose principal is Zhi "George" Guo, a registered professional engineer. The Guo family is the fee simple owner of a 37-acre tract of land located at 5615 Recker Highway (State Road 655) in an unincorporated part of the County. Around eight years ago, Mr. Guo began the process of developing the family property as a business park to be known as the Recker Highway Business Park Development. To provide access to the property from State Road 655, Mr. Guo was required to construct turn lanes, widen from two lanes to four lanes around 1,700 feet of roadway, construct paved and unpaved shoulders, and install guardrails and sod. The Department considers road widening to be a major project. Because all work was within the Department's right-of-way, a driveway connection permit and drainage connection permit were required. The project begins at Station 594.00 and ends at Station 611.00 on State Road 655. On October 16, 2008, Mr. Guo submitted to the Department an Access Application for a driveway connection permit. Among other things, the Access Application identifies the engineer of record (EOR), general contractor (GC), and certified engineer inspector (CEI) on the project. The EOR signs the plans and verifies that all work will be in accordance with Department standards. The GC is essentially the manager of the project and is responsible for its overall coordination. The CEI is responsible for making all inspection work on the project to ensure that the GC is performing work according to the permitted plans. This requires that the CEI be on the job site to observe and verify work done by the GC. The CEI must also submit daily reports to the Department documenting activities that take place each day while work is being performed. When all work is completed, the CEI requests that the Department make a final inspection and issue a final acceptance of the work. Although the CEI is normally one person, the CEI can be a combination of multiple people if they have a Construction Training and Qualification Program (CTQP) certification required to complete the components of the work, e.g., earthwork, asphalt, and maintenance of traffic (MOT). Mr. Guo's Access Application indicated he would serve as EOR and GC. It did not identify who would be the CEI, but Mr. Guo does not deny that he served as CEI. Notably, Mr. Guo submitted daily reports and assumed the duties and responsibilities normally associated with that position. Mr. Guo has never managed a highway construction project such as this, although he has done design work on several highway projects, mainly related to drainage-improvement work. As the GC, Mr. Guo signed and sealed the permitted drawings. As a general rule, different individuals serve as the EOR, GC, and CEI. If the CEI is also the GC, there are no checks and balances to ensure the project is built according to the permitted plans. According to the Department's expert, it is unethical for one person to serve as GC, EOR, and CEI on the same project. However, the expert had no explanation as to why the Department issued a permit to Mr. Guo under these circumstances, and the Department cited no rule or statute that prohibits this arrangement. The charging document does not allege any wrongdoing in this respect. Mr. Guo was concerned about an apparent conflict of interest created by him being the owner of the property, EOR, GC, and CEI. Accordingly, he hired two outside laboratories to perform materials testing, and he used two of his employees, one certified in earthwork and the other in MOT, but neither in asphalt, to act in his stead. There is no evidence that Mr. Guo informed the Department that he had delegated any CEI inspection responsibilities to other individuals. Although he asserts a request was made for the Department to inspect the paving progress as it was installed, there is no record of such a request. Indeed, Mr. Guo had no reason to assume, as he did, that the Department permit inspector would "fully perform the inspection work." If this were so, there would be no need for the CEI to perform any inspections on asphalt work. After being informed by the Department that a drainage construction permit was required, on January 28, 2009, Mr. Guo filed a second application for that type of permit. After additional information was provided by the applicant, on December 14, 2012, or around four years later, the Department issued to Mr. Guo Driveway/Connection Permit No. 2008-A-190-0071 and Drainage Connection Permit No. 2009D- 190-0003. The permit conditions required, among other things, that all work be performed in accordance with current Department standards, specifications, and permit provisions; the driveway connection not be used until final acceptance was given by the Department; the applicant be totally responsible for the cost of all work performed inside the Department's right-of-way; and the applicant accept all conditions of the permit, once work began. At hearing, Mr. Guo agreed that he must comply with all permit conditions. A pre-construction meeting was conducted on January 2, 2014. Mr. Guo attended the meeting and acted as the EOR, GC, and CEI for the applicant. Among other things, the purpose of a pre-construction meeting is to discuss the conditions in the permit and to answer any questions that an applicant may have before work begins. See also Fla. Admin. Code R. 14-96.003(2). At the meeting, Mr. Guo was given a copy of the construction guidelines, which spell out exactly what a contractor must do before, during, and after construction. He was also given a copy of "Minimum CEI On Site Inspections and Notifications," which identifies the specific duties of the CEI. These documents are also attached to his permits. At the heart of this controversy is a dispute over the actions taken by the Department's permit inspector while monitoring the project. A permit inspector is assigned to monitor the work on all state highway projects. The Department's Bartow District Office has only one permit inspector, Steve Logan, who is responsible for 400 lane miles of road in the County. Mr. Logan must drive through all the jobs that are under construction in the County and bring matters to the attention of the CEI on each project to ensure compliance with the Department's permitted plans, including items such as traffic control, lane closures, and spot slope measurements. He must also observe and verify the work done by the CEI, accept and review the daily reports submitted by the CEI, forward those reports to the permits director at the District Office, and work as the Department's communication contact with the contractor. He also receives asphalt mix designs from the CEI and forwards them to the Materials Department for approval. Mr. Logan replaced another permit inspector in February 2015, or just before the friction course of asphalt was placed on the roadway. The friction course is the third and final layer of road surface. When he assumed the position, Mr. Logan understood the Department had previously inspected the first two layers of road surface, i.e., the installation of an eight-inch lime rock base and a one and one-half inch structural asphalt layer. However, he knew that no final acceptance had been given since all work was not yet completed. Mr. Logan holds an asphalt level 1 CTQP certification, is currently an engineer intern, and is scheduled to take the professional engineer examination in April 2017. The certification means that Mr. Logan is qualified to perform acceptance tests for asphalt work on highways. Mr. Logan does not have authority to accept or reject any of the roadway construction on a permitted project. Authority to issue a final acceptance letter lies with the permits director in the District Office. A letter is normally issued after the permits director, permit inspector, CEI, contractor, and Department maintenance team jointly inspect the project after all work is completed. Mr. Logan himself made no final inspection. The Work To Date The asphalt paving work began in March 2014, the final course was laid in March 2015, and the last corrective work was completed in July 2015. Mrs. Asphalt, LLC, was the paving contractor used on the job. Although a final inspection was never performed, one of Respondent's employees made final payment and released Mrs. Asphalt after the July 2015 corrective work was completed. A release and final payment are normally given after all paving work has been approved and accepted by the Department. Although he was not on the site in July 2015, Mr. Guo contends Mr. Logan gave final approval for the work at that time. In April, May, October, and November 2015, the Department sent a punch list of items to Mr. Guo to be completed by his firm. A punch list identifies deficiencies that need to be corrected before a final inspection is made. It does not inform the CEI on how to resolve the deficiencies, and it places the permittee on notice that final acceptance will not be given until the items on the list are corrected. Slope deficiencies were not noted until several months after the corrective work was completed when a Department project administrator happened to be driving on the road after a heavy rain and observed ponding on many sections of the roadway. Mr. Guo met with the Department in early December 2015 in an effort to address not only the items in the punch lists but also the sloping concerns. On December 11, 2015, he submitted an alternative solution of spot repair. The Department rejected this proposal, as the proposed repairs would negatively impact surrounding asphalt that was constructed at a different slope. Mr. Guo submitted a second alternative solution, which would allow him to mill out (remove) 1.5 inches of pavement and overlay the friction course at 1.5 inches with a two percent slope. The Department rejected this proposed solution, as the best solution was to "remove what was out there." The Department has never issued a final acceptance letter for the project. The Notice to Show Cause, as amended, was issued on March 1, 2016. The Charges The Department is authorized to initiate an enforcement action whenever work on a state road does not conform to the permitted plans or violates the PPM. See Fla. Admin. Code R. 14-96.007(8). The Notice to Show Cause alleges that "the majority of paved areas, paved and unpaved shoulders, slopes, guardrail and other items" do not comply with Department standards or abide by the permitted plans. It further alleges this creates "an unsafe road condition" and constitutes a violation of Department rules. The Department estimates the cost to correct these violations is between $430,000.00 and $650,000.00. Although Respondent disputes this amount, it is unnecessary to resolve that issue at this time. State Road 655 is an undivided, two-lane arterial highway probably built around 100 years ago when different design standards applied. According to current PPM standards, a two-lane state highway must have a minimum eight-foot-wide shoulder that includes a minimum five-foot-wide paved section constructed with a two percent negative slope for the turn lane and a six percent negative slope for the paved shoulder area. See Dep't Ex. 8. The negative slopes allow water to drain off the road. A construction tolerance of no more than .2 percent is allowed. Id. To conform to these standards, Respondent's permitted plans call for the same slopes on travel lanes and shoulders. Although State Road 655 probably had a slope of one to one and one-half percent when it was first built, and paving slopes on the pre-existing lanes being widened are not exactly two percent, any current overlaying of the road requires a two percent slope. Mr. Guo contends he was told by two permit inspectors, "Chris" and Steve, that a slope of two percent or less was acceptable. Mr. Logan denies this assertion. There are nine items in the charging document, which identify necessary changes to reduce the hazardous roadway conditions and correct the improper construction. Items one, two, four, and seven relate to improper pavement slopes and improper paved and unpaved shoulder slopes on both the east and west sides of the roadway. Item three identifies a missing paved shoulder on the west side of the roadway. Items five and six identify the absence of a stabilized shoulder (material placed adjacent to a paved shoulder) on the east side of the roadway and the lack of any sod on the same shoulder. Item eight alleges the guardrail in front of the cross drain is deficient. To avoid flooding, item nine alleges the shallow ditch on the east side of the roadway should be relocated closer to the Department's right-of-way line and the roadside slopes should be modified, as shown in the permitted drawings. While not containing a specific charge, a tenth item warns Respondent that other issues may arise before final acceptance is given. The more persuasive evidence supports a finding that the slopes and shoulders identified in items one, two, four, and seven do not conform to the plans or PPM. Mr. Guo's own daily reports for the friction course corroborate this finding. Those reports reflect the slopes are two percent or less for the travel lanes and four percent for the shoulder slopes. This is contrary to the plans, which call for a two percent slope for travel lanes and a six percent slope for shoulders, with not more than a .2 percent deviation. The absence of appropriate negative slopes can create dangerous ponding conditions on the highway. Therefore, the charges in items one, two, four, and seven have been proven. The more persuasive evidence supports a finding that the work described in items five, six, and eight has not been performed. If not completed, these deficiencies can create a safety hazard and cause soil erosion. Therefore, the charges in these three items have been proven. At hearing, Respondent admitted that this work has not been performed and agrees to complete the work after the paving dispute is resolved. The more persuasive evidence supports a finding that the charge in item nine has been proven. When a roadway is widened, and a drainage ditch is located adjacent to the original roadway, to avoid possible flooding, the ditch must be relocated closer to the Department's right-of-way and roadside slopes must be modified. Although Mr. Guo contends otherwise, this work is an integral part of any road construction project. Mr. Guo has proposed an alternate design to address this item. Respondent's Contentions Respondent first contends that sections of other nearby state roads are not built to current standards and therefore the exact standards required by the PPM should not apply. Respondent identified various locations on State Road 655 and other state roads within a five-mile radius of the project that do not have an exact two percent slope. See Resp. Ex. C1, pp. 1-6; Resp. Rebut. Ex. 2. Because of this slope variation, Respondent asserts strict compliance with the PPM and plans should not be required. Consistent with this argument, Respondent admits that any pre-existing travel lanes on State Road 655 with slopes of 1.6 to 1.8 percent were overlaid with new asphalt using the same slope measurements. But this concern should have been raised at the pre-construction meeting before work began, and not after the paving was completed and a Notice to Show Cause issued. The contention is rejected, as the evidence supports a finding that a permittee is required to build to current standards, regardless of the condition of the existing roadway. In its PRO, Respondent argues the Department is equitably estopped from enforcing the requirement that the final paved surface have a slope of exactly two percent; the Department waived the requirement that the final paved surface have a slope of exactly two percent through representations made by Department employees; its liability, if any, was extinguished because Mr. Logan accepted the work; and the actions and representations of Mr. Logan render the Department liable for the as-built conditions.1/ These contentions are based mainly on the premise that Mr. Logan made representations to the subcontractor and/or Respondent's employees regarding the quality of the paving work and gave final approval after the corrective work was completed in July 2015. The friction course was installed over a three-day period during the week of March 18, 2015. The asphalt was installed by Mrs. Asphalt. On the first day, Mr. Guo arrived on site two hours after work began and on the other days he was not on site at all times. However, James Bearden, who is Respondent's foreman, and one other employee, Kerry Bearden, were on site at all times. Neither is certified to inspect asphalt. Except for the afternoon of the second day, Mr. Logan was present at all times. Using a four-foot calibrated smart level, Mr. Logan performed spot checks on the slopes while the asphalt was being laid, while James Bearden made slope checks every 25 feet or so. Mr. Bearden confirmed that Mr. Logan did not "check it as often" as he did. Although the spot checks he made appeared to be "acceptable," Mr. Logan did not perform any spot checks after the rolling was completed, and he did not write down any measurements that he took. At one point, Mrs. Asphalt's foreman requested information regarding the target slope. Mr. Logan informed him he should check with the client to obtain that information. Mr. Logan did not advise anyone that the work would pass final inspection. During the March paving work, Mr. Guo took no measurements, but after the paving was completed, he was observed making a few sloping measurements. Normally, the CEI will make numerous checks while the paving is being laid to ensure that the subcontractor is providing quality work and the equipment is adequate to perform the job. Respondent asserts, unpersuasively, that by allowing Mr. Logan to inspect the asphalt paving, function as the asphalt inspector on site, and give final approval, the Department interfered with the road construction. The facts belie this contention. At no time did Mr. Logan interfere with, or prevent, the contractor from taking slope or depth measurements. Although Mr. Logan would sometimes tell the subcontractor that work was not acceptable, he did not order the subcontractor to fix the unacceptable work. This is the responsibility of the CEI. Mr. Logan told Mrs. Asphalt's foreman that the July 2015 corrective work looked "good," but he was not asked by anyone if the subcontractor could be paid and released, or if his characterization of the work as "good" constituted final acceptance of the work. Contrary to Respondent's assertion, no representation was made by Mr. Logan that he was giving final approval. In fact, there has never been a request by the CEI for the Department to make a final inspection. It is evident from Mr. Guo's testimony that he either misunderstood the type of oversight provided by a permit inspector, or he never sought clarification on that issue before the work began. It is the CEI's responsibility to be present on the job site to observe and verify the GC's work. This means that Mr. Guo, or his certified designees, if any, and not the Department, are responsible for all inspections and to provide daily reports documenting the work activities that take place each day. Mr. Guo believed the subcontractor "only listen[s] to Steve," and the subcontractor "report[ed] directly to Mr. Logan" for "quality [control] decisions" rather than the CEI. As to the July 2015 corrective work, Mr. Guo instructed "the subcontractors [to] completely follow the instruction[s] from Steve" in making the necessary corrections to the slopes. He also believed, incorrectly, that all asphalt inspection work had been delegated to Mr. Logan and assumed that Mr. Logan was essentially supervising the project. In other words, he turned over all responsibility for inspecting the asphalt to the permit inspector. But as the record shows, Mr. Logan only made sporadic measurements, he had no authority to approve the work, and he did not direct the subcontractor's performance, reject its work, or put a stop work order on the project. James Bearden attended a meeting with Department personnel in November 2015. He recalled telling John Hayes, a Department construction engineer, that he paid and released the subcontractor after Mr. Logan "okayed the work." Mr. Hayes responded that "Steve didn't have authority to authorize that asphalt." Mr. Hayes did not testify, and Mr. Bearden's representation to Mr. Hayes that the work had been approved is incorrect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order sustaining the charges in the Notice to Show Cause and requiring Respondent, within 60 days, to demonstrate satisfactory progress in completing the road construction. Otherwise, the Department may initiate action to effect the satisfactory completion of the work at Respondent's expense. DONE AND ENTERED this 12th day of October, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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, 2016.
Findings Of Fact On July 24, 1987, a DOT sign inspector observed Respondent's sign opposite Respondent's place of business and apparently on the DOT right-of-way of U.S. 19. Measurements were taken by the inspector to locate the sign with respect to U.S. 19. The right-of-way of U.S. 19 at this location is 100 feet east and west of the centerline of U.S. 19. The right-of- way extends fifty feet west of the western edge of the southbound lane of U.S. 19, thus locating the sign some 12 feet inside the right-of-way boundary. Respondent had been advised by a DOT sign inspector where this portable sign could be legally located and the sign was placed in that location out of the DOT right-of-way. On the day the sign was tagged for being on the right-of- way, the man mowing the grass around Wendy's restaurant adjacent to Respondent's restaurant moved the sign to facilitate the mowing. Respondent's owner had previously told the mower to be sure to return the sign to its authorized location if moved to facilitate mowing but, on this occasion, the sign was not immediately relocated to its authorized location.
The Issue The issue for determination in this proceeding is whether the notice of violation issued by Petitioner for an unpermitted sign should be upheld and the sign removed.
Findings Of Fact Respondent is a nursery organized as a Florida corporation. Respondent has been in business in Davie, Florida since 1969. Respondent's business involves both the wholesale and retail sale of nursery goods. Respondent is located several hundred feet west of U.S. 441. The business premises are not readily visible from U.S. 441. Access to Respondent's premises from U.S. 441 is by dirt road. Respondent erected a sign adjacent to the right of way for U.S. 441 in 1969. The sign advertised Black Olive Nursery and identified the dirt road access from U.S. 441. At the time, no sign permit was required by state law. Respondent applied for and paid for sign permits in 1975 and 1976. The sign permits were issued by the local county government and were effective for two years. No applications for sign permits have been made to Petitioner by Respondent from 1975 to the present. The sign is subject to the current permitting requirements of state law. The sign does not have a valid state permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order upholding the notice of violation, and requiring Respondent to remove the sign in accordance with applicable Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1992. DANIEL MANRY 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 23rd day of January, 1992.
Findings Of Fact By applications dated July 30, 1979, the Respondent National Advertising Company applied for eight permits to construct four double-faced outdoor advertising signs on U.S 41 and Pine Island Road, in Lee County, Florida. The applications in question stated that the signs were to be located in an unincorporated area of Lee County zoned commercial or industrial. This was consistent with the official zoning maps of Lee County, which reflected that the property upon which the signs were to be located was zoned commercial. The applications were approved by the Department on July 31, 1979, and one structure was erected. This structure bears permit numbers 11293-10 and 11294-10. Subsequently, it was determined that the zoning on the subject property was agricultural rather than commercial as stated on the permit applications. This problem was caused by a transposition error on the Lee County zoning maps which mistakenly classified the subject property as commercial. On November 1, 1979, notices of violation of Chapter 14-10.05, Florida Administrative Code were issued against the permits which alleged that the structures were in violation of law due to inappropriate zoning. The inspector who approved the Respondent's applications relied upon the representation made by the Respondent that the zoning on the property was commercial and did not independently verify this information. In reliance on the Lee County zoning maps, a representative of the Respondent entered into a lease agreement with the owner of the property on which the signs were to be located, secured Department of Transportation permits and, subsequently, county building permits. Following the erection of the first sign, the Department was informed by another sign company that the zoning on the property was improper. The Department "red-tagged" the completed sign and the remaining permitted structures, thus halting further construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Florida Department of Transportation revoking permit numbers 11293-10, 11294-10, 11296-10, 11295-10, 11299-10, 11297-10 and 11298-10, issued to the Respondent National Advertising Company to construct four double-faced outdoor advertising signs on U.S. 41 in Lee County, Florida. DONE and ORDERED this 30th day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH 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 30 day of June, 1983.
Findings Of Fact On January 8, 1988, the DOT published a Notice To Contractors that stated in pertinent part: The Florida Department of Transportation plans to receive bid proposals for the following design/build projects. This advertisement is issued to give advance notice of our design/build intentions; to allow interested parties to form design/build affiliations; and to submit letters of interest for specific project(s). For the advertised design/build projects, the contracting firm shall be prequalified with the Department in accordance with Rule 14-22 in construction class Hot Plant-Mix Bituminous Base & Surface Courses. Consultants affiliating with the contracting firm must be prequalified with the Department prior to final selection in the following types of work: Type B (Standard Roadway Design) Type K (Standard Contract Administration and Inspection) Firms shall submit a separate letter of interest for each of the following projects for which they wish to be considered: * * * State Project No. 01050-1519 CHARLOTTE COUNTY: Level, widen, and resurfacing of S.R. 776. The limits of the project will be from approximately 750 feet west of Sunnybrook Boulevard to 650 feet east of C.R. 771. Approximate length 3.3 miles. D.B.E. Goal 10.0 percent. Bonding Requirement $1,000,000. * * * Construction work may consist of resurfacing, construction of paved shoulders, extension of existing cross- drains, installation of mitered end sections on side drains, shoulder work, signing and pavement marking, sodding and grassing. Consultant services will include, but not be limited to, Construction Engineering Inspection and the preparation of construction plans in accordance with the FDOT Plans Preparation Manual (1985) and other applicable criteria, to include as appropriate: Utility Adjustment Plans, summary of pay items, signing and pavement marking plans, maintenance of traffic details, drainage design, pavement design, and Special Provisions. Any firm who has not been qualified by the Department and would like to be considered for these projects should request a Letter of Interest Submittal Package from the Bureau of Contractual Services in Tallahassee, 904/487-3487. The Department shall determine the relative ability of each firm to perform the services required for each project. Determination of ability shall be based upon staff training and experience, firm experience, location, past experience with the Departent, financial capacity, past performance and current and projected work load. The Department shall select (shortlist) not less than three firms deemed to be the most highly qualified to perform the required services to proceed with preparation of bid & technical proposals. Scope of services desired, schedules, blank contracts and special instructions will be provided at pre-bid/scope of services meeting, which will be held within 2 weeks following shortlisting. * * * SUBMITTAL REQUIREMENTS: Firms desiring consideration for this project must submit two (2) copies of their qualifications to the requesting unit listed below for each project that they are interested in. Information that must be included are the name of the project(s) to which the letter of interest applies, the names of the firms involved in the affiliation, firm's experience, location, past experience with the Department, and current and projected work load. RESPONSE EVALUATION: All respondents will be evaluated and must be determined by the Department to be qualified to do business in Florida and must be prequalified to perform the advertised work requirements prior to final selection. 2/ * * * Pursuant to DOT Rule 14-25.024(1), any person adversely affected by not being selected to provide aid proposals must file with the Clerk of Agency Proceedings, Mail Station 58, Room 562, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0458, a written Notice of Protest within 72 hours of the posting of the firms selected to prepare proposals. The firms selected to prepare bid proposals will be posted with the Clerk of Agency Proceedings on the 19th day of February, 1988. After filing a written Notice of Protest (within 72 hours of posting), a formal written protest setting forth a short and plain statement of the matters asserted by the Protestor shall be filed with the Clerk of Agency Proceedings within ten days after filing of the Notice of Protest. A failure to file a timely protest constitutes a waiver of Chapter 120 proceedings. At the time of the Notice To Contractors, and until March 13, 1988, there was no DOT rule establishing design-build procedures under Section 337.11(5), Florida Statutes (1987). Six design-build teams submitted letters of interest in response to the Notice To Contractors. Two teams later were eliminated, leaving four: (1) Ajax (the contractor)/Hole, Montes (the design consultant/construction engineering inspector (CEI)); (2) APAC/Harris; (3) Harper Bros./Aim Engineering; and (4) Wendel Kent-Gator Asphalt/Kunde, Sprecher, Yaskin. Before February 18, 1988, both DOT's central office in Tallahassee and its district office, District I, in Bartow, compiled rankings for the firms that had submitted letters of interest. Although both offices attempted to do the same thing--compile evaluations based on certain criteria--they set about their tasks differently. In Tallahassee, Mr. William Laufman and his staff developed evaluation forms complete with instructions. The forms outlined the weight to be assigned each criterion when evaluating the contractor, the design consultant, and the CEI (Construction Engineering Inspection) ability of the consultant firm. The instructions set forth the method by which the evaluations were to be done. The idea behind the evaluation forms was to promote uniformity among the evaluators. The forms were developed during the two weeks before February 16, 1988, and were completed on that date. The weight to be assigned each criterion was determined by a consensus of people within the construction, design, and CEI departments. These decisions were made when the forms were developed. The forms and the backup data used in Tallahassee to do the evaluations were "faxed" to the district office to be used when doing its evaluations. The letter of interest packets were also provided. According to the evaluation forms used in Tallahassee to evaluate contractors, the firms' overall experience, past DOT performance grades, and current and projected workload were most heavily weighted. These items were twice as important as financial capacity and location. For consultant firms and CEI ability, past performance grades on DOT jobs was most important while location was least important. The firm's experience, staff training, and current and projected workload were weighted equally. The information the central office considered necessary to do the evaluations included information contained in the letter of interest packets, the prequalification file of the contractors and consultants, and DOT documents regarding DOT experience. Some information related to certain criteria could only be gleaned from a review of the prequalification file. For example, overall firm experience and staff training and experience would be detailed in that file. All of this information was available to DOT to do the evaluations. The central office staff ranked APAC/Harris highest with a combined 82 score (contractor-62, design consultant-11, CEI consultant-9). The central office staff ranked Wendel Kent-Gator/Kunde, Sprecher & Yaskin second highest with a 78 score (contractors-56, design consultant-11, CEI consultant-11). The central office staff ranked Harper Brothers/Aim Engineering third highest with a 66 (contractor-48, design consultant-7, CEI consultant-11). The central office staff ranked Ajax/Holes, Montes fourth with a 63 (contractor-50, design consultant-7, CEI consultant-6). In contrast, the district office performed its evaluation and ranking on the morning of February 18, 1988, the date established for a teleconference meeting at which the "shortlist" would be determined. That morning, Mr. John Dewinkler, District I Director of Production, assigned Marshal Dougherty, District I Professional Services Engineer, the task of ranking the design-build teams. Dougherty had only a list identifying the teams from which to work. Dougherty ranked the design-CEI components of the teams and enlisted Donald Prescott, District I Assistant to District Construction Engineer, to rank the construction contractor component of the teams. Due to time constraints and problems experienced by the central office computer system that morning, neither was able to resort to information normally available in the central office. Dougherty relied on his own knowledge of team members and information available at the district office in Bartow. Prescott telephoned the four resident offices in District I for input on the relative abilities of the construction contractors. Prescott and Dougherty took 1 1/2 - 2 hours to do their work. Dougherty then prepared team rankings that combined his ranking with Prescott's, giving equal weight to each. Their evaluations did not strictly follow the weighted criteria set out in the central office evaluation forms. Of the four, Mr. Prescott ranked Harper Brothers first, Wendel Kent- Gator second, Gator third, APAC fourth, and Ajax fifth. The letter of interest using Gator Asphalt as the independent contractor was eliminated as a result of the competition conflict. Of the four, the district's overall rankings were Wendel Kent- Gator/Kunde first, Harper/Aim second, APAC/Harris third and Ajax/Hole, Montes last. On the afternoon of February 18, 1988, the Technical Committee convened by conference call to determine the shortlist for the projects listed on the Notice To Contractors. The members of the committee included Wally Giddens, Director of Division of Preconstruction and Design; Murray Yates, Director of Construction; John Dewinkler, Director of Production; and Donald Prescott, Assistant to District Construction Engineer in District I, Bartow. Messrs. Dewinkler and Prescott participated by telephone from their offices in Bartow; the others were in Tallahassee. Several other people were present in Tallahassee for the meeting. They included: William Laufman, Project Manager; Jack Trickey, Chief of the Bureau of Adjunct Value Engineering; Ken Morefield, Bill Dayo, and Chuck Robshaw. The central office staff (Tallahassee) recommended that Ajax be among the firms to be shortlisted. However, the district people, Messrs. Dewinkler and Prescott, expressed concerns over Ajax and requested Ajax not be placed on the shortlist. The district's "concerns" included lack of familiarity with Ajax's design team, present problems on current jobs with respect to performance and schedules, and the potential for claims on existing contracts. The concerns expressed by the district were not apparent in the information available to the central office, and some discussion was held. Since the project was going to be performed in the district, the committee deferred to the district's request and did not shortlist Ajax. The firms placed on the shortlist by the committee included: APAC/Harris; Wendell Kent-Gator/Kunde; and Harper/Aim. APAC is a top rated contractor with a lot of DOT experience. It was prequalified to do the type of work required for this project when it submitted its letter of interest. Its average grade on reports on past performance as a contractor or subcontractor for the DOT is 89.81. APAC's consultant, Harris, was also rated highly and has substantial DOT experience. Harper Brothers is a contractor prequalified for the work required for this project. While Harper Brothers has not done work for FDOT in the past three years, it still rates higher than any other contractor working in the Ft. Myers area based on past DOT work. Harper remains prequalified and has received an ability factor rating of 14, equating to a 93-98 ability score. Its design consultant, Aim Engineering, has DOT experience. Wendell Kent is a contractor that was not prequalified for the type of work required for this project--hot bituminous asphalt mix work--when it submitted its letter of interest. Wendell Kent has DOT experience, although not in this type of work, and that experience consists of only one job within the past eight years in the district where this job will be performed. Wendel Kent's average grade on reports of past performance as a contractor or subcontractor for the DOT is 93.86. Wendel Kent affiliated with Gator Asphalt, which was prequalified for this project. Gator Asphalt's average grade on reports of past performance as a contractor or subcontractor for the DOT is 89.84. Wendell Kent is to be the prime contractor on this project. It would be responsible for the overall administration of the project and construction of all items except the asphalt paving, which would be done by Gator. Wendel, Kent-Gator Asphalt's design consultant, Kunde, Sprecher, Yaskin has done design work for the DOT in the past and performed well. Ajax is prequalified and has DOT experience, including recent experience. In the last three years, Ajax has done eight or nine DOT jobs amounting to approximately $11.4 million of work. The DOT concedes that Ajax is a capable contractor. But Ajax's average grade on past performance as a contractor or subcontractor for the DOT is 86, lowest of the four. In addition, comments relating to Ajax are somewhat more negative than those of other contractors. Only Ajax received negative comments on its ability to schedule construction work, a factor to be specifically considered in the selection of a design/build contractor. For example, the comment for FDOT Project #01050-3514 in Charlotte County was: "They don't provide day-to-day supervision on the- project. They generally leave that up to whatever sub is working on the project. From a project engineer's standpoint, Ajax makes a good subcontractor but a poor prime contractor." For Project #12070-3513 in Lee County, the comment was: "This contractor could have taken more interest in controlling construction operations to achieve a better quality of construction." Ajax's more significant scheduling problems arose during the first few years of operations in Florida. After DOT criticism, Ajax has improved in this area. Of the eight or nine DOT jobs Ajax has done in the last three years, there has been a net total of four days overtime on all jobs. (This net total is arrived at by subtracting the number of days "undertime" from the overtime days to arrive at the net number of days over the time allowed by the contracts.) But of the last 13 jobs Ajax has done for the DOT, Ajax was behind schedule on seven. On two jobs started in 1984, Ajax was considerably behind schedule (15 days) on one and extremely behind schedule (51 days) on the other. Ajax knows of no potential claims on its current job. In the last three years, Ajax has had only one claim, for $6,000, that was resolved in favor of Ajax. Ajax does have a pending claim on a 1984 job that is not yet resolved. The claim is on behalf of a subcontractor. Until resolved, the claim is just a difference of opinion or a difference of contract interpretation. Ajax was also involved in a potential claim on a project known as "the embankment job." There was an error in the plans for this job at the time the contract was bid. Ajax brought this to the attention of Carson Carner, the resident engineer, who advised Ajax to bid the project as it was. Ajax did and was awarded the contract. Shortly, thereafter, Ajax requested a change order to allow for extra materials considered necessary due to the error Ajax saw-in the plans. Ajax pursued this because this error equalled approximately 10 percent of the job, which amounted to approximately $200,000. District DOT officials refused to see the error and denied the request for the change order. Ajax ultimately retained an attorney who convinced DOT of the error in the plans, and the change order was approved. Finally, mention should be made of the non-contractor components of the design/build teams. APAC's partner, Frederick R. Harris, has done design work for FDOT in the past. Harper Brothers' partner, Aim Engineering, has construction engineering inspection (CEI) experience with the Department, including a large amount of work in the Lee County area. Wendel Kent-Gator's consultant, Kunde, Sprecher and Yaskin, had considerable design experience with the Department and also had done CEI work for the agency. Ajax selected the design, CEI firm of Hole, Montes as its consultant. This firm was Ajax's second choice and was selected only when Aim Engineering was submitted by Harper Brothers. While prequalified to do so, Holes, Montes had done neither design nor CEI work for the Department.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Respondent, the Department of Transportation, enter a final order excluding the Ajax/Hole, Montes team from the short list for State Project No. 01050-1519 if that is how the DOT chooses A exercise its discretion. RECOMMENDED this 21st day of June, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of June, 1988.
