Findings Of Fact The record reflects that notice was given to Respondent at its business address. The hearing was recessed for over 15 minutes to give Respondent added time to appear. Respondent has not contacted the Division as of the date of this Order. Yellow Whirleybird Helistop was issued an airport license renewal by the Department of Transportation, on March 11, 1987, for a private helistop located at latitude 30 degrees 11' 24" and longitude 85 degrees 49' 52" in Bay County, Panama City Beach, Florida. The service provided by this helistop is helicopter rides and it is located on property owned by Bay County, Florida. The City of Panama City Beach enacted a land use ordinance, No. 316, effective June 11, 1987, prohibiting the operation of sightseeing rotocraft "within the area bounded on the north by the southerly right-of-way U.S. Highway 98, alternate (Front Beach Road) and south Thomas Drive, and east and west by the easterly and westerly boundaries of the city, ---". The heliport in question is located within the area described above. The Office of the County Attorneys, Bay County, by letter dated July 22, 1987, notified Yellow Whirleybird Heli- copter, Inc. that the concession agreement it had with the county was terminated and gave Yellow Whirleybird 30 days to vacate the premises. The Department of Transportation, by letter dated June 25, 1987, notified Yellow Whirleybird Helistop that its airport license was being revoked because of lack of proper zoning at the site, due to Panama City Beach Ordinance No. 316. In addition, suitable local zoning and ownership or lease of the airport site are requirements of site approval and license by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the airport license located at latitude 30 degrees 11' 24" and longitude 85 degrees 49' 52" in Panama City Beach, Florida, issued to Whirleybird Helistop, Respondent, for a private helistop be revoked because it does not currently meet the zoning and lease requirements of the statute and rule. DONE AND ORDERED this 22nd day of December, 1987, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 22nd day of December, 1987. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon-Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Mr. Ron Brown Whirleybird Helistop 430 Lyndell Panama City Beach, Florida 32407 Douglas J. Sale, Esquire City Attorney 110 South Arnold Road Panama City Beach, Florida 32407 Kay N. Henderson, P.E., Secretary Department of Transportation Haydon-Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact The findings of fact contained in the Hearing Officer's Recommended Order are supported by the evidence except the numerical designation for State Road "79" which should be "71", as noted on pages 5, 6, and 37 of the May 3, 1979, Hearing transcript, and the August 3, 1978 violation notice. As corrected, the findings of fact are attached hereto and made a part hereof, and supplemented by the following additional fact: As presented by exhibits and testimony by the Deputy District Engineer at the Sup- plementary Hearing on April 21, 1980, the section of Interstate 10, where the signs in question were noticed for violation, was open to traffic on October 14, 1977.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no action be taken against the subject signs. DONE and ORDERED this 4th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 385 Marianna, Florida 32446 ================================================================= SECRETARY'S ORDER OF REMAND =================================================================
The Issue The issues presented here concern refund petitions which have been filed pursuant to Section 215.26, Florida Statutes, calling for the reimbursement of taxes and fees paid by the several Petitioners. In particular, the refund claims concern payments made for the time period February 1, 1980 through January 31, 1981, under the substantive terms of Chapter 323, Florida Statutes, related to certain functions of the Florida Public Service Commission in its dealing with the Petitioners who are motor carriers operating in the State of Florida. Specifically, the payments were in the categories: Cab cards for each motor vehicle used in intrastate carriage at the rate of $8.00 per motor vehicle. Florida I.D. stamps for each motor vehicle used in interstate carriage at the rate of $5.00 or $8.00 per motor vehicle. Road taxes for each motor vehicle at a rate of $10.00, $15.00, $25.00, $40.00, $50.00 or $100.00 per motor vehicle for motor vehicles registered for use November 1, 1979, through June 30, 1980, and at the rate of $10.00, $15.00, $25.00, $40.00, $25.00 and $50.00 for motor vehicles registered for use July 1, 1980, through October 31, 1980. Emergency or trip-lease permit cards at the rate of $10.00 per permit.
Findings Of Fact There follows a verbatim restatement of the Stipulation and incorporation and adoption of the exhibits associated with that Stipulation. This restatement and incorporation of exhibits constitutes the fact finding for the purposes of this Recommended Order, with the exception of paragraph 19 to the Stipulation, which is modified in keeping with the February 9, 1982, order of the undersigned to allow the Petitioners to seek recovery of (100 percent or any lesser percent) refund of any road taxes and fees paid for cab cards, identification stamps and emergency permits to `the Public Service Commission under Chapter 323, Florida Statutes (1979), after October 31, 1979, for the 1980 Public Service Commission cycle. This modification becomes part of the fact finding of this Recommendated Order. The Stipulation follows:
The Issue The issues in this case are whether each of the two respondents practiced contracting and electrical contracting without a license in violation of Subsections 489.113(2), 489.127(1)(f), 489.531(1), Florida Statutes (2004),1 and, if so, what penalty, if any, should be imposed pursuant to Subsections 455.228(1) and 489.13(3).
Findings Of Fact Petitioner is the state agency defined in Subsection 489.105(2) that is responsible for regulating the practice of contracting and electrical contracting pursuant to Subsection 455.228(1). Neither of the respondents has ever been licensed as either a contractor or an electrical contractor. On April 14, 2005, Mr. Adams and Bay Breeze Maintenance, LLC (Bay Breeze), practiced contracting and electrical contracting within the meaning of Subsections 489.105(3) and (6) and 489.505(9) and (12). Mr. Adams, as agent for Bay Breeze, submitted to Mr. Christopher King, as agent for Dome Flea Market in Venice, Florida, a written proposal to remodel part of the Dome Flea Market for a cost not to exceed $60,000. The proposed remodeling involved an upgrade of a snack bar into a grill and bar to be known as the Sawmill Grill. In relevant part, the proposed remodeling required performance of plumbing, carpentry, and electrical contracting, including the installation of electrical wiring and electrical fixtures. Between April 14 and May 20, 2005, Mr. King paid approximately $39,350 to the respondents for the proposed remodeling job. On April 14, 2005, Mr. King paid $8,000 and $1,500 by respective check numbers 7725 and 7726. On April 19, 2005, Mr. King paid $8,000 and $1,700 by respective check numbers 7730 and 7731. On May 3 and 20, 2005, Mr. King paid $5,150 and $14,000 by respective check numbers 7742 and 7770. The respondents never actually performed any remodeling work. Mr. Adams testified that Mr. King forged the written proposal and that neither Mr. Adams nor Bay Breeze submitted a proposal for the remodeling project. That testimony was neither credible nor persuasive. The financial harm to the public was substantial. Mr. Adams and Bay Breeze have not paid any restitution. Petitioner incurred investigative costs, excluding attorney fees and costs, in the amount of $844.07. The investigative costs are reasonable within the meaning of Subsection 489.13(3).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Mr. Adams and Bay Breeze guilty of committing the violations alleged in each Amended Administrative Complaint and imposing an aggregate administrative fine against Mr. Adams and Bay Breeze, collectively, in the amount of $10,000. DONE AND ENTERED this 12th day of March, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2007.
The Issue Whether the subject lease should be awarded and, if so, whether the award should be to Petitioner or to Intervenor.
Findings Of Fact State Road 5 (US Highway 1) runs through Windley Key, Monroe County, Florida. Florida Department of Transportation (FDOT) District 6, headquartered in Miami, has direct operational responsibility for this highway and its adjacent right-of-way. Holiday Isle Resort and Marina, Inc. (Holiday Isle) is a corporation that owns and operates various facilities located adjacent to one another on Windley Key which offer lodging, food, beverages, entertainment, and recreation. These facilities, located easterly of State Road 5, attract a large number of patrons in automobiles. Because of a lack of parking on the Holiday Isle properties, many people have, over the past few years, parked their vehicles across State Road 5 from the Holiday Isle properties on the right-of-way that was unimproved when the request for proposal was issued. Over this time, FDOT and Holiday Isle had an informal agreement giving Holiday Isle the use of this area for overflow parking. Upwards of 400 automobiles have been parked on this right-of-way area across from the Holiday Isles properties. FDOT knew that Holiday Isle patrons and others were parking on this right-of-way area and was aware that this parking arrangement had created a tremendous traffic hazard. Numerous accidents, including fatalities, have occurred over the years involving motor vehicles pulling on and off State Road 5 and pedestrians crossing the road to and from the Holiday Isle properties. In an effort to reduce the hazardous conditions in this area, FDOT decided to lease the right-of-way for motor vehicle parking pursuant to the authority given FDOT by Section 337.25, Florida Statutes. This was the first time that District 6 of FDOT had attempted to procure a lease of this type. On September 23, 1989, FDOT placed an advertisement in appropriate Monroe County newspapers under the heading "Call for Bids". The advertisement advised that sealed bids for the lease of certain described lands would be received by FDOT at 11:00 a.m. on the 29th day of December, 1989. The lands described by the advertisement was for a substantially larger tract of land than the final tract of land described in the Request for Proposal. The advertisement gave notice that "No bid will be considered unless it is submitted on the official Proposal Form provided by the Department of Transportation". The name and address of the person from whom bidders could obtain the forms and information about the project was provided. The advertisement also contained the statement: "The Department reserves the right to reject any or all bids and to waive technical errors as may be determined best for the interest of the State." This was the only advertisement that was published for this project. Petitioner Red & White Investments, Inc. (Red & White) is a corporation organized to make investments. Paul Brumm was one of the shareholders of Red & White and was authorized to act on behalf of the corporation in pursuing the lease that is the subject of these consolidated cases. Joseph Roth was an officer of Intervenor Holiday Isle and was authorized to act on behalf of the corporation in pursuing the lease that is the subject of these consolidated cases Red & White and Holiday Isle were the only two entities to contact FDOT in response to the advertisement. FDOT determined that the legal description it had. used in its published advertisement was incorrect, advised them of the error, and delayed the issuance of its RFP until after its corrected that erroneous legal description. In March, 1990, FDOT corrected the legal description and issued its RFP to Red & White and to Holiday Isle. The RFP contained a metes and bounds description and referred to the land to be leased as being "Parcel 6003.B" and as containing 3.596 acres, more or less. The RFP was a package of three separate documents. The first document was a standard "State of Florida Request for Proposal Contractual Services Acknowledgment Form" (RFP Form) with certain deletions and additions. The second document consists of four pages entitled "Information for Prospective Bidders" (Information Document) and contains information about the subject project and constitutes special conditions applicable to the procurement. The third page is a three-page document headed "Lease Agreement" (Lease Form). Attached to the Lease Form are two exhibits: Exhibit A being a revised legal description of the parcel to be leased and Exhibit B being the page to which the bidder was to attach its conceptual site plan. The RFP Form contained general and special conditions. Among the general conditions was the following: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions unless their proposal has been evaluated as being responsive. There was no restriction stated by the RFP as to the number of proposals a proposer could submit. The RFP Form contained the following statement: SEALED PROPOSALS: All proposal sheets and this original acknowledgment form must be executed and submitted in a sealed envelope. (DO NOT INCLUDE MORE THAN ONE PROPOSAL PER ENVELOPE.) The face of the envelope shall contain, in addition to the above address, the date and time of the proposal opening and the proposal number. ... In the special requirements section of the RFP Form, proposers were required to state the amount being offered to pay for the lease on an annual and on a monthly basis, and were told to submit a "Conceptual Site Plan" as part of the proposal. Proposers were also advised that the land to be leased was vacant and was to be leased "as is", without any representations as to its suitability for any particular use or its qualification for any permits or licenses. All development had to be in conformity with all local, state, and federal laws. The Information Document constituted special conditions applicable to this procurement. Among the special conditions found in the Information Document are the following: BID FORMS: The Department of Transportation will not consider a bid to lease subject land unless it is submitted on the official "Request For Proposal - Contractual Services" form provided by the Department of Transportation. * * * MINIMUM ACCEPTABLE BID: The minimum acceptable bid shall be $58,825.00 per annum. (This requirement was subsequently changed as discussed below.) TERMS: The bid proposal shall specify the amount of monthly rent the bidder is proposing to pay. Payment in full of that amount shall be due and payable at the Lessor's office mentioned above on the first day of May, 1990, and on the first day of each succeeding month for the term of the lease. * * * SUITABILITY: Subject parcel is leased "as is" and the Lessor makes no representation regarding the suitability of the subject land for any use. It is specifically understood that the Lessor makes no representation, guarantee or warranty that the subject land will qualify for any permits or licenses as may be required by any governmental agency having jurisdiction. * * * CONCEPTUAL SITE PLAN: Each bidder must submit with his bid documents a conceptual site plan indicating how they will use and develop the site. Such plan must show all proposed modifications, including all entrances and exits, lighting fixtures, pavement, drainage structures, fences and all other proposed improvements to State Road No. 5, including but not limited to traffic signals. The plan must state that overnight camping will be prohibited by Lessee. No bid will be considered if a conceptual site plan is not included as part of the proposal. The conceptual site plan document(s) will be referred to as Exhibit "B" of the bid proposal. The conceptual site plan submitted by the successful bidder will be incorporated into the final lease as Exhibit "B". CONSTRUCTION OF IMPROVEMENTS: It is specifically understood and agreed that the successful bidder will commence construction of improvements on the leased area, in conformity with the approved Conceptual Site Plan, on or before August 1, 1990. * * * PRE-BID CONFERENCE: All prospective bidders are invited to attend a meeting to be held at the Lessor's office listed above at 11:00 A.M. on Friday, April 6, 1990. The purpose of this meeting is to provide prospective bidders an opportunity to present any questions they may have concerning this bid. Representatives of the Lessor will be present to answer such questions. FORMS: Proposal, contract, and performance bond forms may be secured from this office. Corporate seals are required on bid proposals where applicable. BID AMOUNT: All bids received will be evaluated on the basis of the rental to be paid, and (sic) the merits of the conceptual site plan, and the impact on State Road 5. The RFP required only two specific pieces of information to be generated by the proposer - the statement of rents and the conceptual plan. These were the only portions of the responses evaluated for purposes of awarding the lease. The RFP does not explain the procurement other than to limit the use of the parcel to parking. Safety problems and the parking needs for the Holiday Isle properties are not specifically addressed by the RFP. However, both Mr. Brumm and Mr. Roth were familiar with the long standing problems that existed in the subject area and knew the purposes of the RFP. The pre-bid conference was held as scheduled on April 6, 1990, with only Red & White and Holiday Isle attending as interested bidders. One of the purposes of the pre-bid conference was to permit bidders to ask questions and seek clarification. Following discussions with FDOT officials, it was determined that the legal description included in the RFP package as Exhibit A to the Lease Form was erroneous and that not all of the proposed site was upland or usable as parking. This resulted in a letter from FDOT, dated April 8, 1990, changing the term related to the price by stating that "[u]sable land value for leasing purposes has been determined to be Thirty-Five Cents ($0.35) per square foot per year", and that "[a nominal value for unusable land has been set at One Tenth of One Cent ($0.001) per square foot per year." The legal description of the area to be leased was also changed to encompass 5.190 acres, more or less, rather than the 3.596 acres, more or less, set out in the original proposal package. The revised description included lands closer to the pavement edge of State Road 5 than did Exhibit A to the Lease Form. A portion of the designated area lies within environmentally protected wetlands, contains protected species of vegetation, or is otherwise not suitable for use as a parking lot. FDOT never attempted to calculate how much of the subject property was "usable" or "unusable" and it never instructed the potential bidders as how such calculation should be made. By its letter of April 8, 1990, FDOT effectively removed the requirement from the RFP that the minimum bid for the lease be $58,825.00. FDOT left it to each proposer to determine the amount of usable land and to apply a minimum rate of $0.35 per square foot for usable land and a minimum rate of $0.001 per square foot for unusable land. Red & White timely submitted its proposal, which consisted of a proposal to pay $42,000 per year in rent, a conceptual site plan, a cover letter, a cashier's check in the amount of $4,200 and a copy of a letter, dated April 11, 1990, from Andrew M. Tobin, counsel for Holiday Isle to Mr. and Mrs. Paul Brumm. Red & White's bid amount was based on its determination that there were 113,150 square feet of usable space, and that the balance of the area was unusable. In comparison, Mr. Cochrane estimated that the value of the lease, using the methodology employed by Red & White, was $40,000. This estimate was derived by Mr. Cochrane and was not an appraised value. There was no evidence that FDOT had performed a formal appraisal of this property. Holiday Isle timely submitted two proposals in two separately sealed envelopes marked, respectively, "No. 1" and "No. 2". On April 20, 1990, representatives of both Red & White and Holiday Isle attended at FDOT offices in Tallahassee the opening of the proposals submitted in response to the RFP. At this meeting to open the proposals, Mr. Cochrane, the FDOT employee responsible for the procurement of this project was handed two sealed envelopes on behalf of Holiday Isle. These envelopes were marked "No. 1" and "No. 2", respectively. Mr. Cochrane told Mr. Tobin and Joseph Roth, Holiday Isle's representatives, that he would only open one proposal from Holiday Isle. Holiday Isle's representatives, when asked by Mr. Cochrane which of the two envelopes Holiday Isle wanted him to open, selected the envelope marked "No. 2." FDOT then opened envelope No. 2. The other envelope submitted by Holiday Isle, envelope No. 1, was not opened for the purpose of evaluating the proposal. (At the formal hearing, Holiday Isle requested and received permission to have the previously unopened envelope opened for the purpose of retrieving the cashier's check submitted with the proposal.) When the proposals were submitted, Monroe County was in the process of conducting a "focal point plan" study, required by the Monroe County Comprehensive Plan, for a portion of Windley Key designated as the "Holiday Isle Area of Critical County Concern." The area encompassed the Holiday Isle properties as well as the subject right of way. The focal point planning was to address: Design and functional character of U.S. 1 within one-half mile of the area of critical county concern; The appropriate location, placement, and functionality of adequate off-street parking for patrons to access the Holiday Isle Resort to avoid stacking of vehicles on U.S. 1; and c. An ingress and egress plan for U.S. 1 that limited access to side roads that have adequate turning, acceleration and deceleration lanes. Because of the pending focal point. plan activity and objections expressed by the Florida Department of Community Affairs, FDOT, on May 8, 1990, decided to reject both proposals. In doing so, FDOT represented that it would begin a new solicitation process if the focal point plan approved by the County and by the Department of Community Affairs revealed that leasing the subject right-of-way would be appropriate. Holiday Isle initiated formal administrative proceedings to protest the Department's decision to reject all bids. As the result of negotiations involving Holiday Isle, FDOT and the Department of Community Affairs, Holiday Isle agreed to take over the focal point plan efforts. Holiday Isle also agreed that the conceptual plan it submitted to FDOT as part of its proposal could be used as part of the focal point plan. Thereafter, the conceptual plan that had been submitted by Holiday Isle with its proposal No. 2 was incorporated as part of the focal plan. FDOT agreed to recommence the procurement process. The formal bid protest was dismissed and FDOT notified Red & White and Holiday Isle on June 14, 1990, that it would make its decision as to the award of the lease on June 19, 1990. FDOT appointed a committee consisting of three of its employees to evaluate the merits of the conceptual site plan submitted by Red & White and the Holiday Isle proposal No. 2. Mr. Cochrane was responsible for doing the economic evaluation of the proposed rents. The evaluation committee that reviewed the conceptual site plans was unaware that the Holiday Isle proposal contained a modified lease agreement but Mr. Cochrane was aware that the lease had been modified. The Holiday Isle proposal that had been contained in envelope No. 2 was recommended on June 19, 1990, by FDOT to receive the lease. This proposal consisted of a proposal to pay a conditional sum of $60,000, plus 10% of gross revenues per year, a certificate of insurance, a conceptual site plan, a "Holiday Isle Traffic and Parking Study," a lease, a cover letter, and a cashier's check in the amount of $20,000. The proposal did not state how gross revenues would be determined. Mr. Cochrane had not gotten a legal opinion as to the import of the changes made to the lease by Holiday Isle prior to the award being announced. He evaluated the proposed rents upon the annual rental shown by each proposal. Mr. Cochrane did not consider that the amount of Holiday Isle's proposed rents could be affected by a modification Holiday Isle made to the Lease Form, and he did not know how much money 10% of gross revenue would entail. In evaluating the merits of the respective conceptual plans, the evaluation committee considered that Holiday Isle would run a shuttle service to include the leased area, but that shuttle service was not included in the Holiday Isle proposal. On June 21, 1990, Red & White filed a timely protest of FDOT's intended selection of the Holiday Isle proposal. Holiday Isle did not timely protest FDOT's decision to open only one of its proposals. The lease proposal submitted by Holiday Isle as part of its response to the RFP contained material revisions to the Lease Form contained in the RFP package. Mr. Cochrane, the FDOT employee responsible for procuring the subject lease and for communicating with potential proposers, was of the opinion that the terms of the Lease Form could not be varied. Mr. Cochrane recommended to a representative of Red & White that no changes should be made to the lease form and that a proposer would run the risk of being disqualified if the terms of the lease were revised. Counsel for Holiday Isle was advised by Barbara Hobbs, FDOT counsel, not to revise the lease because FDOT counsel did not have time to review a revised lease. The RFP package does not specifically address whether a proposer may submit a modified lease as part of its proposal. It is clear, however, that Red & White relied on the statement and recommendation of Mr. Cochrane in determining not to make revisions to the lease, while Holiday Isle submitted a lease with revisions that are to its advantage. The revisions made to the lease by Holiday Isle were not minor irregularities. The changes to the Lease Form are in paragraphs 1, 3, 5, and 6 and deal, respectively with the term of the lease, the time of commencement of improvements, the payment of consideration and the adjustment of the amount of consideration depending on a future determination of usable versus unusable area, and termination. In each instance, the terms of the Lease Form was revised by counsel for Holiday Isle. Paragraphs 1, 3, 5, and 6 of the Lease Form are as follows: 1. Lessor does hereby lease unto Lessee the lands described in Exhibit "A attached hereto and made a part hereof, for a period of five (5) years beginning with the date of this agreement. Renewal of this Agreement from year to year shall be automatic until such time as terminated. 3. The Lessee hereby agrees that he will commence improvement of the leased area in conformity with the approved Conceptual Site Plan on or before August 1, 1990. Lessee shall pay the rent to Lessor in advance on the first day of each month, beginning May 1, 1990. When this Agreement is terminated, the unearned portion of any rent payment shall be refunded to Lessee. This agreement may be terminated by either party upon thirty (30) days written notice to the `other party. Paragraphs 1, 3, 5, and 6 of the revised lease submitted by Holiday Isle are as follows: 1. Lessor does hereby lease unto Lessee the lands described in Exhibit "A," attached hereto and made a part hereof for a period of five (5) years beginning with the date of this agreement. The term of this Agreement shall be automatically renewed and extended for an additional five (5) year Thereafter, this agreement shall be renewed from year to year unless otherwise provided by law or terminated as provided herein. * * * 3. The Lessee hereby agrees that it will commence improvement of the leased area in conformity with the approved Conceptual Site Plan on or before August 1, 1990. Because the parties anticipate certain delays for permitting, the parties agree that the commencement date shall be extended provided that Lessee is exercising good faith and due diligence to obtain permits as required by paragraph 13 of this lease. In the event that Lessee fails to exercise good faith and due diligence to secure the permits, Lessor, at its option, may declare Lessee in default of this agreement. * * * 5(a). Lessee shall pay to Lessor, as fixed annual rent, the sum of $59,941.90 for 3.860 acres +/- [more or less] of property designated "usable for parking" and $58.10 for 1.330 acres +/- [more or less] of property designated "unusable for parking" for a total annual rent of $60,000. Annual rent shall be payable to Lessor in equal monthly payments in advance on the first day of each month, beginning May 1, 1990. When this agreement is terminated, the unearned portion of any rent payment shall be refunded to Lessee. * * * 5(b). In addition to minimum fixed annual rent, Lessee shall pay Lessor a sum equal to 10% of the gross revenues from Lessee's parking lot operation, hereinafter "percentage rent." Payment of the percentage rent shall be paid on or before the twentieth day of each month for the preceding month's revenue. Lessee shall keep separate and accurate records of the gross revenues and it will give Lessor the right at any and all reasonable times to inspect such records. Beginning on the first anniversary date of this Lease, and on the anniversary date each year thereafter during the term of this Lease and all extensions and renewals, percentage rent shall be increased 1% each year until a maximum of 20% is reached. * * * 5(c). The parties acknowledge that the designation between "usable" and "unusable" property may be subject to correction based on actual field conditions, biological reports, or Lessee's inability to obtain required permits far part of the property. Either party shall have the right to notify the other of any incorrect designation (between usable and unusable) and to request a correct designation. A detailed and accurate survey showing the basis for the request for correction shall accompany any notification. If property has been incorrectly designated, the parties agree to adjust the annual rent to reflect the corrected designation of property based on $.35 per square foot for "usable" property and $.001 per square foot for "unusable" 6. In the event Lessor is required to utilize all or part of the lands described in Exhibit "A" for construction or additional lanes or for highway expansion, Lessor may terminate that portion required upon thirty (30) days written notice. If less than all of the property is terminated, the rental fee for the remaining property will be recalculated on a pro rata basis. The modifications to the lease by Holiday Isle were not contemplated by FDOT and gave Holiday Isle a competitive advantage not enjoyed by Red & White. On June 28, 1990, FDOT issued a special permit to Holiday Isle to improve the subject right-of-way area to make the right-of-way area safer until the bid dispute could be resolved. Under the auspices of that permit, Holiday Isle has constructed a chain-link fence to control ingress and egress to and from the parking area and has made other improvements to the right-of-way area. The chain-link fence has different gates far vehicles and pedestrians to pass through. Holiday Isle has placed fill material throughout the area. The Florida Department of Environmental Regulation has determined that the fill material is unauthorized. Holiday Isle has also placed railroad ties to serve as parking abutments and has installed lights. The parking abutments and lighting are not covered under the subject permit. The permit enables Holiday Isle to control and use the area for the parking needs of the Holiday Isle properties without having to pay rent for the right-of way area. The fence is a permanent improvement that will not necessarily be removed when the permit is terminated by FDOT. The primary purpose of this project was to make automobile traffic, parking, and pedestrian traffic safer. The RFP stated that proposals would be based on rent, the merits of the conceptual site plan, and the impact to State Road 5. The merits of the conceptual plans were evaluated based on internal circulation of traffic in the parking area, the planned ingress and egress to the parking area, planned pedestrian traffic, and improvements to State Road 5. The conceptual site plan submitted by Red & White was not prepared by professional engineers and was deficient in several material areas. Red & White's plan shaded the area to be reserved for parking, but it provided no information as to how traffic would circulate within the designated area. Red & White failed to provide information as to how State Road 5 would be impacted and failed to show what improvements, such as deceleration lanes or turn lanes, would have to be made to State Road 5. Further, Red & White's plan failed to make adequate provision for pedestrian traffic. Red & White's plan proposed two driveways, one into the parking area and one out of the parking area. The proposed exit driveway was unsafe because it was designated as a right turn only and was located too close to Whale Harbor bridge. Red & White conceptual plan provided for uses that were not contemplated by the RFP, such as an area reserved for recycling and the provision of parking areas for not-for profit groups. The conceptual plans were evaluated based on the following criteria: "access management", "internal circulation", and "traffic control litigation" "Access management" considered the location of driveways and the ease of ingress to and egress from the parking area. "Internal circulation" involves the actual development and use of the site, including parking layout and traffic flow within the designated parking area. "Traffic control mitigation" addresses safety considerations for and handling of cars and pedestrians. Although these criteria were not specified by the RFP, a conceptual site plan meeting minimum transportation engineering standards would have addressed those criteria in detail. The RFP did not set any minimum standard which would make a proposal "non-responsive" and ineligible for evaluation, and FDOT did not disqualify Red & White's conceptual plan. FDOT contemplated that minor changes could be made to the conceptual plan with its approval after the award of the lease. On June 19, 1990, FDOT announced its intention to award the project to Holiday Isle. On July 31, 1990, after the formal hearing had been convened in Case No. 90-4326BID, FDOT delivered to the parties a notice that it had decided to reject all bids. This change of position was based, in part, on the determination by FDOT that there had been confusion throughout the bid process and that the overall process was not absolutely fair.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in Case No. 90-4326BID that rejects the proposal submitted by Intervenor, Holiday Isle, and which further rejects the proposal submitted by Petitioner, Red & White. IT IS FURTHER RECOMMENDED that a Final Order be entered in Case No. 90- 4326BID that dismisses the bid protest filed by Red & White. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of November, 1990. CLAUDE B. ARRINGTON 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 20th day of November, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-4326BID AND IN CASE NO. 90-5103BID The following rulings are made on the proposed findings of fact submitted on behalf of Red & White Investments, Inc. The proposed findings of fact in paragraphs 1-5 and 42-47 are rejected as being preliminary matters that are unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 6-17, 19-32, 34-36, 38-41, 48-52, 56-57, 62, 64-67, 74-77, 80, 86, 91, 93-95, 101-108, 111, 119-121, 123, 125-126, 130, 134, 144-145, 155, 157, 163, 165, and 174-177 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 18, 37, 81-82, 96-100, 110, 124, 127-129, 132-133, 135-136, 143, 153, 158-162, 166, and 173 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 54-55, 60, 68-72, 87-88, 90, 92, 102, 115-118, 122, 137-142, 146-152, 154, 156, 167-172, and 179-182 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 33, 79, and 178 are accepted in part and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 53, 61, 73, and 83-85 are rejected as being, in part, subordinate to the findings made and as being, in part, unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 58-59 and 131 are accepted in part and are rejected in part as being legal conclusions. The proposed findings of fact in paragraphs 89, 109, 164, and 183-184 are rejected as being argument or as being contrary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of Florida Department of Transportation: The proposed findings of fact in paragraphs 1-9, 9, 12, and 14-15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 10 are rejected as being preliminary matters that are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 16 and 17 are accepted in part and are rejected as being contrary to the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of Holiday Isle Resort & Marina, Inc. The proposed findings of fact in paragraph 1 are rejected as being legal conclusions. The proposed findings of fact in paragraph 2-3, 6- 9, and 11 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4 and 5 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 10 and 12-13 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 14 and 15 are rejected as being recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraphs 16 and 17 are adopted in part by the Recommended Order and are rejected in part as being contrary to the conclusions reached. The proposed findings of fact in paragraphs 18-19 and 22 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraphs 20 and 21 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James S. Mattson, Esquire MATTSON, TOBIN & VETRICK Post Office Box 586 Key Largo, Florida 33307 Michael J. Cherniga, Esquire ROBERTS BAGGETT, LAFACE & RICHARD 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32301 Susan P. Stephens, Esquire Senior Litigation Attorney Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner Robert Scanlan, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James W. Anderson, Esquire Lewis & McKenna, P.A. Post Office Box 10475 Tallahassee, Florida 32302 Lauchlin T. Waldoch, Esquire Messer, Vickers, Caparello, French, Madsen & Lewis, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876
The Issue Whether the Proposed Amendment of Rule 7E-6.007, Florida Administrative Code, is arbitrary and capricious and thus constitutes an invalid exercise of delegated authority?
Findings Of Fact The Petitioner, Hialeah, Inc., operates a race track (hereinafter referred to as the "Track") located in Dade County, Florida. The Petitioner is licensed by the Respondent. In December, 1981, the Petitioner was granted permission by letter from Bob Smith, then Director of the Respondent, the Department of Business Regulation, Division of Pari-Mutuel Wagering, to operate Tel-A-Betting. Robert Rosenburg, Director of the Respondent after Mr. Smith, also approved Tel-A- Betting in a letter to the Petitioner. The Petitioner has continuously operated Tel-A-Betting for more than six years. The Petitioner instituted Tel-A-Betting in reliance on the Respondent's approval of Tel-A-Betting. If approval had not been granted to the Petitioner from the Respondent, the Petitioner would not have established Tel-A-Betting. Tel-A-Betting is a procedure for placing wagers on races at the Petitioner's Track. Persons utilizing this system (hereinafter referred to as "Account Holders"), open an account with the Petitioner by making a deposit of $100.00 or more with the Petitioner and paying a $25.00 fee. The funds deposited with the Petitioner are received and accounted for in accounts maintained at the Track. Once an account is opened, a plastic card which contains, among other information, an account number and an "800," toll-free, telephone number is issued to the Account Holder. Wagers may then be placed with the Petitioner by the Account Holder calling the "800" number and placing a wager with a telephone operator/pari-mutuel clerk located at the Track. The Account Holder identifies himself or herself by giving the operator the account number and a code name designated by the Account Holder when the account is opened. The account number is programmed into a computer to determine whether the Account Holder has sufficient funds in the account to make the wager. If the funds in the account are sufficient to cover the wager, the wager is entered into the computer. If the Account Holder wins the wager, the payoff is entered into his or her account. Calls to place wagers through the Tel-A-Betting program can be made from anywhere in Florida and the person making the call and wager need not be physically present at the Track to make the wager. Wagers taken through Tel-A-Betting are only made on races at the Track. Tel-A-Betting allows the Petitioner to receive wagered funds as part of its pari-mutuel pool from persons located anywhere in the State of Florida. When a wager is made through Tel-A-Betting, the operator/pari-mutuel clerk cannot establish the age or identity of the person placing the wager. The Petitioner is the only race track permit holder in the State of Florida which employs Tel-A-Betting. The Proposed Amendment of Rule 7E-6.007, Florida Administrative Code, if valid, will prohibit the Petitioner from continuing the use of Tel-A-Betting. The Respondent has not received any complaints about the use of Tel-A- Betting by minors or any other abuses. No evidence was presented that minors have made, or attempted to make, wagers through the use of Tel-A-Betting. The Respondent has not received any objections to Tel-A-Betting or complaints about unfair competition from other racetrack permit holders.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1985). At all times pertinent to this proceeding, Respondent was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1985), and bonded by Respondent Travelers Indemnity Company (Travelers). At all times pertinent to this proceeding, Respondent Travelers was authorized to do business in the State of Florida. The complaint filed by Petitioner was filed timely in accordance with Section 604.21(1), Florida Statutes. From November 5, 1987, through June 10, 1988, Respondent purchased from Petitioner 71 dozen squash, 375 dozen collard greens, 247 dozen mustard greens and 147 dozen turnip greens for a total price of $7,386.00. All produce was delivered between November 5, 1987 and June 10, 1988. No payments have been made by Respondent for the above produce. Respondent has not denied receiving the produce nor did Respondent complain about the produce's quality or condition upon delivery. Respondent owes $7,386.00 to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be ordered to pay to the Petitioner the sum of $7,386.00. It is further RECOMMENDED that if Respondent fails to timely pay the Petitioner as ordered, then Respondent Travelers be ordered to pay the Department as required by Section 604.21, Florida Statutes (1985) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes. DONE and ORDERED this 18th day of May, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1989. COPIES FURNISHED: C. L. Norman Route 2, Box 2160 Starke, Florida 32091 David Norman Norman's Country Market, Inc. 515 Northwest 23rd Avenue Gainesville, Florida 32069 Traveler Indemnity Company Attention Breet A. Ragland 988 Woodcock Road Suite 102 Orlando, Florida 32803 Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Mallory Horne, Esquire General Counsel Department of Agricultural and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Clinton H. Coulter, Jr. Attorney at Law Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Charles A. Stampelos, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing file was predicated upon a stipulated settlement agreement between the parties, filed August 5, 2010. Accordingly, it is hereby ORDERED that the Authorized Dealer Agreement between Solano Cycle, Inc. and Adly Moto LLC remains in full force and effect. . DONE AND ORDERED this / eo day of August, 2010, in Tallahassee, Leon County, Florida. L A. FORD, Directo Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed August 17, 2010 9:59 AM Division of Administrative Hearings. Filed with the Clerk of the Division of Motor Vehicles this Lah day of August, 2010. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF: vig Copies furnished: Charles A. Stampelos Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Garrett Laves Adly Moto LLC 1200 Lakeside Parkway, Suite 325 Flower Mound, Texas 75025 Martin Edward Solano Solano Cycle, Inc. 1024A South Main Street Gainesville, Florida 32601 Nalini Vinayak Dealer License Section
The Issue Whether Respondent's sign located adjacent to the south right-of-way line of Plymouth Avenue, 315 feet east of the centerline of State Road 15A in Deland, Volusia County, Florida, is in violation as alleged in Petitioner's Notice To Show Cause No. 5-79-014-89 dated June 13, 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Artdev Graphics Corporation, was the owner of a sign located near the intersection of Plymouth Avenue and SR 15A adjacent to the south right-of-way line of Plymouth Avenue, 315 feet east of the centerline of SR 15A, in Deland, Volusia County, Florida which is the subject matter of this proceeding. Respondent also owns a legally permitted sign adjacent to SR 15A which is 270 feet south of the sign referred to in paragraph 1 above when measured along the east right of way line of SR 15A. SR 15A is designated as a federal-aid primary highway. Plymouth Avenue is neither a federal-aid primary highway nor an interstate highway. The sign referred to in paragraph 1 above is visible from the "main- traveled way" of SR 15A as that term is defined in Section 479.01(8), Florida Statutes, respectively. There was insufficient evidence to show that the Department advised the Respondent, at any time, that a state outdoor advertising permit was not needed for the sign in question. The sign in question does not have a state outdoor advertising permit attached thereto nor has a state outdoor advertising permit been issued to Respondent for the sign in question.
Recommendation Based upon the foregoing Findings of Fact, the Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Florida Department of Transportation (Department) enter a final order requiring the Petitioner, Artdev Graphics Corporation, to remove the sign in question under the terms and conditions the Department deems appropriate and in accordance with law. DONE AND ENTERED this 12th day of December, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1.-2. Adopted in Finding of Fact 1, as modified. 3.-8. Adopted in Findings of Fact 3, 4, 1, 2, 5, and 7, respectively. 9. Rejected as not supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by Respondent The Respondent elected not to submit any proposed findings of fact. COPIES FURNISHED: BEN WATTS, P. E., SECRETARY HAYDON BURNS BUILDING 605 SUWANNEE STREET TALLAHASSEE, FLORIDA 32399-0450 ATTN: ELEANOR F. TURNER, M.S. 58 CHARLES G. GARDNER, ESQUIRE HAYDON BURNS BUILDING 605 SUWANNEE STREET, M.S. 58 TALLAHASSEE, FLORIDA 32399-0458 ROBERT S. LEE, PRESIDENT ARTDEV GRAPHICS CORPORATION 409 NORTH SPRING GARDEN AVENUE DELAND, FLORIDA 32720
