The Issue Whether Petitioner, Miami Yacht Divers, Inc., is entitled to reimbursement for cleanup costs.
Findings Of Fact The Respondent is the state agency charged with the responsibility of administering claims against the Florida Coastal Protection Trust Fund. Petitioner is a company located in Dade County, Florida, which performs commercial diving operations. Such operations include oil pollution containment and clean-up. At all times material to the allegations of this case, Dan Delmonico was the principal officer or owner for the Petitioner who supervised the operations of the company. In April of 1993, Mr. Delmonico discovered a fuel discharge next door to the premises of Defender Yacht, Inc., a company located on the Miami River in Dade County, Florida. The source of the discharge was an abandoned sunken vessel. This derelict vessel had no markings from which its ownership could be determined. Upon discovering the vessel, Mr. Delmonico did not contact local, state, or federal authorities to advise them of the discharge. Instead, Mr. Delmonico contacted several colleagues whose help he enlisted to assist him to clean up the discharge. In this regard, Mr. Delmonico procured the services of a diver and a crane company to remove the vessel from the water. Additionally, Mr. Delmonico utilized a boom and oil absorbent clean-up pads to remove the discharged fuel from the water. In total, Mr. Delmonico maintains it took four work days to complete the removal of the discharge and the salvage of the derelict vessel. At no time during this period did Mr. Delmonico contact local, state, or federal authorities to advise them of the foregoing activities. No official from any governmental entity supervised or approved the clean-up operation or salvage activity which is in dispute. After the fact Petitioner filed a reimbursement claim with the United States Coast Guard. Such claim was denied. Upon receipt of such denial, Petitioner filed the claim which is at issue in the instant case. In connection with this claim with Respondent, Petitioner submitted all forms previously tendered to the Coast Guard including the standard claim form, labor receipts, rental receipts, supply receipts, trailer and storage receipts, cash expenses, a job summary, and photographs. On or about September 20, 1996, Respondent issued a letter denying Petitioner's claim for reimbursement for expenses associated with the above-described salvage and clean-up activities. The grounds for the denial were the Petitioner's failure to obtain prior approval for the activities and the absence of "good cause" for the waiver of prior approval. Additionally, the Respondent maintained that Petitioner had failed to provide evidence that a pollutant discharge existed and that the removal of the vessel was necessary to abate and remove the discharge. It is undisputed by Petitioner that prior approval for the clean-up activities was not obtained. Petitioner timely disputed the denial and was afforded a point of entry to challenge such decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's claim for reimbursement. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathelyn M. Jacques Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 N. Paul San Filippo, Esquire Seidensticker & San Filippo Parkway Financial Center 2150 Goodlette Road, Suite 305 Naples, Florida 34102
Findings Of Fact Petitioner River Trails is the developer of a condominium community in Palm Beach County known as River Walk. River Walk is contiguous to and immediately adjacent to 2600 feet of South Florida Water Management District (hereinafter "SFWMD") property bordering Canal C-18 in Palm Beach County. The right- of-way adjacent to C-18 as well as the bottom of C-18 is owned by SFWMD. C-18 is not in an area designated as Outstanding Florida Waters. As required by Section 403.813(2), Florida Statutes, River Trails sought and obtained on January 12, 1984, a permit from the SFWMD to construct a dock and boat ramp in Canal C-18. The permit conveyed no property rights to River Trails. On October 12, 1984, River Trails asked DER to confirm that River Trails' proposed boat ramp qualified for an exemption pursuant to Section 403.813(2)(c), Florida Statutes. By letter dated December 20, 1984, DER informed River Trails that the proposed boat ramp did qualify for the exemption and, therefore did not require any permit from DER. On October 18, 1984, River Trails asked DER to confirm that River Trails' proposed dock of 1,000 square feet or less qualified for an exemption from DER's permitting authority pursuant to Section 403.813(2)(b), Florida Statutes. However, on November 30, 1984, DER informed River Trails that its proposed dock did not qualify for the exemption because there was already an existing dock on SFWMD property on Canal C-18. As authority for its position, DER cited the following sentence in DER Rule 17-4.04(9)(c), Florida Administrative Code: "A private dock is a single pier at a parcel of property." On the 2600 feet of SFWMD-owned right-of-way contiguous to River Trails, there are presently no docks. On SFWMD-owned right-of-way east of River Trails, between River Trails and the southwest fork of the Loxahatchee River, there are two docks approximately 300 feet apart located in front of single-family residences. DER contends all contiguous property owned by an individual, group or entity, including a water management district, constitutes a "parcel of property" and accordingly does not recognize River Trails' claim to an exemption because of the existence of these docks. Prior to River Trails' request that DER confirm River Trails' right to an exemption, DER had not interpreted water management district-owned right-of-ways to be a "parcel of property" within the meaning of Rule 17- 4.04(9)(c). In the past, the SFWMD has permitted numerous docks of less than 1,000 square feet on SFWMD-owned right- of-ways. Copies of these permits were routinely forwarded to DER. While these docks were and are on right-of-ways which DER now defines as a "parcel" within the meaning of Rule 17-4.04(9)(c), DER has not required permits for these docks. The DER employees who interpret the rule in question as part of their duties and whose depositions were introduced at hearing do not agree on the configuration which constitutes a single pier, on the degree of ownership or control required over a parcel of property by an applicant for an exemption, or on the definition of a parcel of property. DER has failed to adequately explain its deviation from past agency practice in interpreting SFWMD right-of- way as a parcel of property. But for DER's new interpretation of the term "parcel of property" found in Rule 17-4.04(9)(c), Florida Administrative Code, River Trails' proposed dock meets the statutory and rule requirements for an exemption from obtaining a permit from DER.
The Issue Whether Resolution No. P64-96 of the Monroe County Planning Commission should be affirmed, reversed or modified?
Findings Of Fact 1. Emmons was a Residential Services Supervisor who had a predetermination/liberty interest (name clearing) hearing held on August 24, 2012. After that hearing, he was terminated effective at the close of business on August 24, 2012 and notified of that fact via correspondence dated August 27, 2012. (See, e.g., Exhibit 4). 2. On September 4, 2012, Emmons submitted a written request to ECUA’s Director of Human Resources and Administrative Services (hereinafter “HR Director”) appealing disciplinary action taken against him in his employment with ECUA. 3. That same date, ECUA requested the services of an Administrative Law Judge (hereinafter “ALJ”) from the Florida Division of Administrative Hearings (“DOAH”) to conduct an evidentiary hearing and issue a Recommended Order to ECUA’s Executive Director pursuant to the Administrative Law Judge Services Contract previously entered into between ECUA and DOAH. 4. DOAH assigned an ALJ to preside over the matter, who in turn issued a Notice of Hearing scheduling an evidentiary hearing to take place beginning at 10:00 a.m. on October 15, 2012 in ECUA’s Board Room. 5. ECUA was present and ready to proceed with the evidentiary hearing at the appointed time and place, yet neither Emmons nor anyone acting on his behalf appeared. Furthermore, no one had heard from Emmons. 6. After waiting fifteen (15) minutes after the designated start-time for the hearing, neither Emmons nor anyone acting on his behalf had been heard from. 7. Thereafter, the ALJ called the hearing to order, and ECUA proffered witness testimony and admitted exhibits into the record. The record established the following: a. Emmons was a Residential Services Supervisor in ECUA’s Sanitation Department. b. On March 28, 2012 Emmons was notified by a Sanitation Equipment Operator under his supervision that his truck (Truck #43B), had broken down. After Emmons arrived on the scene in ECUA Truck #11C, he went to sleep while on duty. c. Emmons slept for approximately twenty to thirty minutes, and his vehicle, Vehicle #11C, was idling with the air conditioner on throughout this time. d. While Emmons slept, an ECUA employee photographed him. e. This was not the first time Emmons had slept while on duty; instead, in the Summer of 2011 Emmons was observed sleeping in his ECUA-assigned vehicle by another ECUA employee. f. Furthermore, within the past twelve months Emmons was observed by ECUA employees reclined with his eyes closed for an extended period of time on two other occasions during the past twelve months. g. Additionally, in 2010 a photograph of Emmons apparently sleeping on duty was brought to one of his superiors’ attention. In this instance, Emmons was cautioned that it was completely unacceptable for a supervisor to be sleeping anywhere 3 at any time while on duty and that if this were to happen again disciplinary action would be imposed. h. ECUA issued a written notice of predetermination hearing to Emmons on August 21, 2012 regarding contemplated disciplinary action for violations of Section B-13A(4), [Conduct Unbecoming an ECUA Employee], Section B-13A(18) [Loafing], Section B-13A(21) [Neglect of Duty], Section B-13A(25) [Sleeping on Duty], and Section B-13A(33) [Violation of ECUA rules or policies] of ECUA’s Human Resources Manual. i. Section B-37(A) of ECUA’s Human Resources Manual additionally provides that ECUA employees shall avoid unnecessary vehicle idling and prohibits allowing a vehicle to idle solely to operate the air conditioner for the comfort of the vehicle’s occupants. j.._ Emmons knew of the above-referenced provisions of ECUA’s Human Resources Manual by virtue of the fact that he had received it, as well as the fact that the substantive provisions of it applicable to his sleeping on duty had been previously discussed with at least one of his superiors. k. Upon proper notice a predetermination hearing was held on August 24, 2012, and thereafter a written notice of disciplinary action was issued to Emmons on August 27, 2012 notifying him that his conduct violated Sections B-13A(4), (18), (21), (25), and (33) of ECUA’s Human Resources Manual. 8. The hearing was closed at approximately 10:27 a.m. 9. Based upon a review of the record, the evidence shows that Emmons’ conduct was violative of Sections B-13A(4) [conduct unbecoming an ECUA employee], 4 Section B-13A(8) [loafing], Section B-13A(21) [neglect of duty], Section B-13A(25) (sleeping while on duty], Section B-13A(33) [violation of ECUA rules or policies], and Section B-37 [vehicle and equipment idle reduction] of ECUA’s Human Resources Manual. (See ECUA ex. 5, 6). The evidence further shows that you were aware of these provisions within the Human Resources Manual. (See ECUA ex. 7). 10. Two days later, on September 17, 2012, R. John Westberry, Esq., entered an appearance on behalf of Emmons and filed a Notice of Voluntary Dismissal on his behalf. In neither of these filings was any justification proffered for Emmons’ having failed to appear at the scheduled evidentiary hearing. Additionally, good cause was not shown for Emmons’ attorney having failed to appear at the hearing (although it is unclear whether the attorney had been retained at that time). 1. Nevertheless, on October 18, 2012 the ALJ rendered an Order Closing File ostensibly dismissing the matter.
Conclusions Petitioner, Emerald Coast Utilities Authority (hereinafter either "ECUA" or “Petitioner”), terminated Respondent, Michael A. Emmons (hereinafter either "Emmons" or “Respondent”), from his employment with ECUA effective at the close of business on August 24, 2012. Emmons timely requested a hearing in order to appeal his termination, and his case was forwarded to Florida Division of Administrative Hearings to conduct a hearing and issue findings of fact and recommended conclusions of law. After being properly noticed, a formal hearing was held in this cause on October 15, 2012 in Pensacola, Florida, before Diane Cleavinger, Administrative Law Judge with the Florida Division of Administrative Hearings, which Emmons elected not to attend. . Three days later, on October 18, 2012, Judge Diane Cleavinger submitted an Order Closing File, which for reasons set forth below is deemed a Recommended Order. Pursuant to Section 120.57(1)(10, Florida Statutes, the Parties had 15 days within which to submit written exceptions to the Recommended Order. That time-frame has expired, with only Petitioner’s having filed a submission. Emmons also filed no response to Petitioner’s exceptions. See Rule 28-106.217(3), Florida Administrative Code (affording a party 10 days from the filing of the other party’s exceptions to respond to those exceptions).
The Issue Does a statement by an agency that its regulatory authority is limited by Section 161.58, Florida Statute, constitute a non- rule policy? Does a statement by an agency that fees levied under authority of Section 161.58, Florida Statutes, by county governments for beach driving do not constitute revenue for purposes of invoking its regulatory jurisdiction pursuant to Florida Administrative Code Rule 18-21.005 (Rule 18-21.005) constitute a non-rule policy?
Findings Of Fact Petitioners Petitioner Shirley Reynolds (Reynolds) resides and owns beachfront property overlooking the Atlantic Ocean in New Smyrna Beach, Volusia County, Florida. Reynolds does not own to the mean high water line, and her property is not adjacent to the sovereign submerged lands held by the Trustees. Reynolds “shares riparian rights with the public.” Reynolds has owned her oceanfront home since 1981. She has observed beach driving by the general public on the beach and in the shallow water in the vicinity of her home. She enjoys the beachfront for “regular recreational, traditional recreational purposes.” Petitioner Diann Bowman (Bowman) resides and owns property that extends to and adjoins the mean high water line of the Atlantic Ocean in New Smyrna Beach, Volusia County, Florida. Bowman has observed the general public driving on the beach and in shallow waters of the Atlantic Ocean in the vicinity of her property. Bowman goes swimming in the ocean, builds sand castles by the edge of the water with her grandchildren, and walks on the beach with friends. Petitioners did not have any requests for leases or applications for action pending before the BOT, and Volusia County had not made an application to the Trustees for any activity permit or lease. Petitioner Bowman was not even aware of Reecy's e- mail, and could not articulate how she was affected by it. Although Reynolds testified at length about the impacts of beach driving and beach concessions between her home and the ocean, she failed to show how she was affected by Reecy's statements that the BOT does not regulate beach driving. In response to counsel’s question of what personal interest she has in whether or not the Trustees require authorization to use state land for motor vehicle traffic in front of her home, she responded, “[I]f and when they ever deal with it, it will certainly raise the consciousness of the human safety element.” Petitioners testified regarding the adverse impacts of beach driving on their property and their enjoyment of their property. Beach driving has an adverse impact upon the property values and upon their enjoyment of their property. Respondents The BOT is an agency of the State of Florida, consisting of the Governor and Cabinet. (Art. IV, s. 4 (f), Fla. Const.) The BOT holds the title to the State’s sovereign submerged lands acquired at statehood “for the use and benefit of the people of the state,” pursuant to Chapter 253, Florida Statutes. (§§ 253.001, 253.03, and 253.12, Fla. Stat.) Private use of such lands generally requires consent of the BOT and must not be contrary to the public interest. The BOT is required to manage and conserve state-owned lands, including sovereignty lands, by law and is granted rulemaking authority to that end. The Department functions as the staff for the BOT, and issues leases and other authorizations for private parties to use sovereign submerged lands under Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code. In carrying out its duties with relationship to the BOT, the Department implements policy as determined by the BOT, to include taking some final agency actions. The Department would be the agency through which the BOT would initiate rulemaking. The Department does not have delegated authority to adopt rules for the BOT. Ken Reecy (Reecy) is a Senior Management Analyst Supervisor in the Department’s Division of State Lands. One of Reecy’s job duties is to provide responses to requests for BOT’s public records housed in the Division of State Lands of the Department. On August 5, 2003, Ross Burnaman e-mailed Eva Armstrong of the Department the following public records request: Hi Eva-I am hoping that you can assist me with this inquiry for public records. I'm looking for any Trustees authorization for the use of state lands (including uplands and submerged lands) for beach driving by the general public or commercial vendors. While I'm aware of Section 161.58, Florida Statutes, I'm of the opinion that Trustees' authorization is still required for beach driving on state lands. Most local governments that allow beach driving (e.g. Gulf County, Volusia County) charge a fee for that activity. That would appear to trigger, Rule 18-21.005(b)(2), FAC, and the requirement for a lease. As I understand it, public beach driving is allowed in parts of the following counties: Nassau, Duval, Flagler, St. Johns, Volusia, Gulf and Walton counties. Thanks in advance for you assistance. Best regards, Ross Burnaman (phone number deleted) Ms. Armstrong passed this request to Ken Reecy of the Department who replied to Mr. Burnaman with the following e-mail message: Mr. Burnaman Concerning your request as to any authorization by the Board of Trustees for beach driving and fees triggering Rule 18- 21.005(b)(2)[sic]: We are unaware of any instance in which the issue of beach driving has been brought before the Board of Trustees for authorization. Further, in discussions with staff from our legal department, it is felt that s. 161.58 sufficiently covers the issue and that authorization from the Board is not necessary. We are also of the opinion that fees counties charge for beach driving would not trigger Rule 18-21.005(b)(2)[sic]. If you have any further questions on this issue, please contact Suzanne Brantley in EIP's Office of General Counsel (phone number deleted) The e-mail above contains two potential policy statements; one concerning a statute and the other concerning a rule. The analysis of each differs slightly. The BOT was authorized at one time to regulate all the uses of state sovereignty lands, to include regulation of driving on the state's beaches, i.e., that portion of land seaward of the mean high water line (hereafter: beach.) The BOT restricted the operation of private vehicles on the beaches via rule. The Legislature of the State of Florida enacted Section 161.58, Florida Statutes, which authorized those counties which had traditionally permitted driving on the beach to regulate the operation of privately owned vehicles on the beaches in their counties. Several of the counties which had traditionally permitted driving on the beach permitted privately owned vehicles to be operated on the beach in their counties and charged a small fee to defray the costs of providing parking, life guards, and traffic direction on the beaches. The BOT attempted to intervene in those counties which charged fees for beach driving on the basis that the fees being charged were "revenue" producing. The Legislature of the State of Florida amended Section 161.58, Florida Statutes, to specifically authorize the counties to collect reasonable fees to defray their costs of regulating beach driving. The statements that are challenged have not been adopted as a rule. Reecy testified at the hearing. Reecy only intended to give Burnaman information related to his public records request. The portion of Reecy's e-mail that is being challenged was intended to explain why no records were found. Reecy responded because Burnaman had sent follow-up e-mails to Reecy’s supervisor, Armstrong, the Director of the Division of State Lands. Reecy knew that Armstrong had a practice of providing information to the public when it was requested. Reecy is not charged with implementing or interpreting Florida Administrative Code Rule 18-21 and does not process applications for leases or other authorizations from the BOT. Reecy's statement that no records were found is not a policy statement and has not been alleged to be one by Petitioners. Reecy conferred with Department legal staff before issuing his statement about Section 161.58, Florida Statutes. Reecy did not state that Section 161.58 exempted counties from getting BOT authorization for beach driving, as Petitioners state in their Petition, for several reasons: first, Reecy is not the person on the BOT’s staff who makes such determinations; second, there was no factual determination pending, i.e., no request for declaratory statement or request for an exemption or authorization; and third, the statute cited and its history indicate that the Legislature has vested the exclusive authority to regulate beach driving in those counties in which it traditionally occurred to county government in those counties. James W. Stoutamire (Stoutamire) is the principal Department employee who is charged with interpreting and applying the BOT’s rules. Stoutamire was the person to whom authority had been delegated to make such policy determinations. Burnaman's request was not presented to Stoutamire, and Reecy did not consult with Stoutamire. Although it is a statement concerning general law, Reecy's first statement regarding Section 161.58, Florida Statutes, does not assert agency jurisdiction or exempt a specific factual predicate from agency jurisdiction. Reecy also discussed Burnaman’s reference to Florida Administrative Code Rule 18-21.005(1)(b)2. with the Department's legal staff. Reecy's references to the section mistakenly cites it as Rule 18-21.005(b)2. Regardless of Reecy's intent, his answer constitutes an interpretation of the rule as applied to the fees charged by counties for beach driving. The BOT's rules provide what types of private activities must have consent prior to their being undertaken on sovereign submerged lands. They do not contain a list of all of the many public activities that occur on Florida’s beaches, shores, and waters that do not require consent. The BOT's rules in Chapter 18-21 are not intended to prevent air or noise pollution, promote public safety, protect property values, provide peace and quiet, or protect quality of life. These are the concerns about which Petitioners testified as diminishing their peaceful enjoyment of their property rights. Beach concessions above the mean high water line do not fall within the Trustees jurisdiction or control.
The Issue The issue in this case is whether a proposed activity by Cayo Costa Island Partnership is exempt from permitting.
Findings Of Fact Cayo Costa Island is a bridgeless barrier island situated between Gasparilla Island to the north and Captiva Island to the south. East of Cayo Costa Island is Pine Island, and east of Pine Island is Cape Coral. In the 1960s, Travis Gresham subdivided and commenced development of a portion of Cayo Costa Island. Development included the dredging of canals. Eventually, one or more plat maps were recorded in the public records of Lee County, so that warranty deeds for residential lots referred to such recorded plat maps. There is also a subdivision sales plat map, which may not have been recorded. Not all of the land was subdivided into lots. The sales plat map reserves a considerable amount of land and canals for future development. One of the reserved areas is to the east of the subdivided lots. The location of the proposed dock is in the extreme southwest corner of this unplatted area. The dock would be located at the western end of a relatively wide manmade canal, which measures 2000 feet long and 105 feet wide. The east end of the canal terminates in Pine Island Sound. Petitioner and her late husband purchased from Mr. Gresham lot 16 in block 1 over 30 years ago, and they moved onto the island almost 20 years ago. The lot does not abut the canal, nor the upland adjacent to the subject dock. She has permanently resided on the island continuously since 1976. In 1984, she and her husband conveyed their property by warranty deed to the State of Florida, reserving a life estate. Petitioner's husband and some friends constructed the subject dock at the end of the canal in September 1978. A couple of years later, another nearby resident named Carl Noah substantially enlarged the dock. On March 16, 1993, Mr. Noah conveyed by warranty deed his real property to Paul Faust. At the same time, Mr. Noah gave Mr. Faust a quitclaim deed for "boat docks constructed by [Mr. Noah] to be used with the [residential] structure." After purchasing the property from Mr. Noah, Mr. Faust was contacted by Petitioner, who told him that she had previously owned the dock and that Mr. Noah had shared it with her. Mr. Faust agreed to share the dock with her, for as long as he owned it. There are no recorded easements concerning the use of the dock. On the sales plat map, the west end of the canal is clearly separated from the subdivided area by a road, which is named Harbor Drive. However, Harbor Drive was never constructed and there is no physical evidence of the proposed road. Petitioner's late husband and his friends who helped build the dock mistakenly believed that the west end of the canal terminated at Harbor Drive. Undoubtedly, other persons were similarly confused, including the property assessor, who had never assessed the property that separates the west end of the canal from Harbor Drive. However, in May 1993, Noel Andress, one of the partners of Cayo Costa Island Partnership, obtained a warranty deed from Mr. Gresham for a triangular- shaped piece of land running north just to the existing dock from the intersection of Harbor Drive and an actual road known as La Costa Drive. Mr. Andress quitclaimed the triangular-shaped parcel, which is described by metes and bounds, to Cayo Costa Island Partnership on January 13, 1994. After Mr. Andress acquired the triangular-shaped parcel, he directed his attorney to write Petitioner and Mr. Faust and inform them to remove their personal property from the real property that Mr. Andress had recently acquired. Mr. Faust is contesting this matter in court. Unfortunately, the record does not include the application or applications submitted by Cayo Costa Island Partnership. Mr. Andress testified that he submitted an application in February or March of 1993. The proposed dock, which would replace the dock built by Mr. Sellars and Mr. Noah, would serve a single family. The proposed dock would consist of two sections: a 5' by 92' main section and a 6' by 10' walkway to the upland area. Thus, the total area of the dock would be 520 square feet. The application reportedly provides that Cayo Costa Island Partnership would use turbidity barriers during construction. The location of a 92-foot dock running parallel to the end of a 2000- foot long undeveloped canal presents no impediment to navigation. There is no reason to infer an adverse impact to flood control or, as long as turbidity barriers are used, a violation of water quality standards. By letter dated June 15, 1994, the Department of Environmental Protection acknowledged receipt of the application, as well as additional drawings and documents submitted on April 8, 1994. Based on these materials, the letter states that the proposed project "appears to qualify as an activity which is exempt from the need for a Department wetland resource permit under Florida Administrative Code Rule 17-312.050(1)(h)."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner. ENTERED on November 22, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on November 22, 1994. APPENDIX Rulings on Petitioner's Proposed Findings A-C: rejected as not findings of fact. A1: rejected as not finding of fact and irrelevant, except for last sentence, which is adopted or adopted in substance. A2-end: rejected as irrelevant, recitation of evidence, subordinate, and unsupported by the appropriate weight of the evidence. Rulings on Cayo Costa's Proposed Findings 1-10: adopted or adopted in substance. 11-12: rejected as subordinate. 13-15: adopted or adopted in substance. 16-23: rejected as subordinate, recitation of testimony, and unnecessary. 24-31: adopted or adopted in substance. 32-33: rejected as irrelevant. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Barbara Mathews Trescott Pepper Law Firm 1505 S.E. 40th St. Cape Coral, FL 33904 Mary F. Smallwood Ruden, Barnett P.O. Box 10888 Tallahassee, FL 32302 John Chaves Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues in this bid protest are whether, in making a preliminary decision to award a public contract, Respondent acted contrary to a governing statute, rule, policy, or project specification; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact On May 18, 2004, Respondent School Board of Broward County ("School Board" or "SBBC")2 issued Request for Proposals No. 2021-24-01 (the "RFP") to solicit offers on a contract for the design and construction of a middle school (the "Project"). Proposals were submitted by Petitioner Magnum Construction Management Corporation, d/b/a MCM Corp. ("MCM"); Intervenor James P. Pirtle Construction Company, Inc. ("Pirtle"); Seawood Builders, a Division of Catalfumo Construction, LLC ("Seawood"); Stiles Construction Co. ("Stiles"); James A. Cummings, Inc. ("Cummings"); and Skanska USA Building, Inc. ("Skanska"). SBBC opened these six proposals on August 31, 2004. In accordance with the evaluation procedure set forth in the RFP, the proposals were reviewed by a Consultant's Review Committee ("CRC"), whose task was to evaluate the proposals and prepare a "short list" of between three and six firms for the School Board, which would make the final determination. At its first meeting on September 14, 2004, the CRC rejected Skanska's proposal as nonresponsive for failing to submit an original bid bond. On September 30, 2004, the CRC met again and, after deliberating, decided to place the five remaining proposers on the "short list." Following the CRC's review, the evaluation proceeded pursuant to Section 1.21 of the RFP, which states: The Facilities and Construction Management Division will forward to the Superintendent of Schools the completed short-list of the Proposer's Submittal. The Superintendent will then forward the Short- List to The School Board of Broward County, Florida for its use in the interview and final selection of the successful Proposer(s). The short list of [sic] will be forwarded to the School Board of Broward County, Florida unranked. The short-listed firms shall present their design solutions to The School Board of Broward County, Florida. Short-listed firms will be notified of the time and place for their respective presentations. Proposer may utilize any media for their presentations, but shall restrict their presentations to 30 minutes total (5 minutes for set-up, 10 minutes for presentation, and 15 minutes for questions and answers). At the conclusion of the Proposer's presentation to the Board, Board Members may ask questions concerning the presentation, the Proposer's assembled Design/Build team, and the Design Criteria Professional's assessment of the Proposer’s submittal or topic of the Board Member's choice [sic] preliminary design concept for the project, including means and methods. At the conclusion of the presentation and interview of all short-listed firms, The School Board of Broward County, Florida will deliberate and utilize the short-listing evaluation criteria and point schedule to finalize a selection of the successful Proposer. The Board reserves the right to award a contract for the project or award no contract (reject all submittals). During and at the conclusion of the presentation and interview of all short- listed firms, the School Board of Broward County, Florida will assign points to each Proposer utilizing the above evaluation criteria and rank them according to their scores. The firm receiving the most points by a Board Member will be considered the first choice of that Board member. The firm that receives a majority of the first choice votes may be awarded the contract.[3] In the event of a tie, a voice vote will be taken until the tie is broken. The Board reserves the right to award a contract for the project or award no contract. The "evaluation criteria and point schedule" referred to in Section 1.21(D) and (E) are found in Section 1.20, which provides as follows: The School Board of Broward County, Florida's final selection will be based on the Selection Criteria Score Sheet. Evaluation Criteria Maximum Points Profile & Qualifications of Proposer's Team 6 Proposed Project Scheduling 7 Past Work Performance and References 10 Site Design 7 Building Design 23 Cost proposal 25 S.I.T. Award 15 MBE Participation 7 Total Points Possible 100 The School Board of Broward County, Florida will award points up to a maximum, for evaluation criteria numbers listed above as based upon an evaluation of the Proposer's submittal and presentation. On October 12, 2004, the School Board held a special meeting to discuss the procurement with staff, hear the presentations of the short-listed proposers, and grade the proposals. Eight board members participated.4 One subject that generated considerable discussion was the "S.I.T. Award," an evaluation criterion worth 15 points. The S.I.T. Award (the acronym stands for School Infrastructure Thrift) was based on a mathematical calculation that left no room for discretion. Points were awarded on a predetermined scale according to the percentage by which a proposer's base proposal amount fell below, or exceeded, the Project's established budget as a function of cost per student station. Because the allowable cost per student station is $15,390 and the Project calls for 1,998 student stations, the budget, for purposes of the S.I.T. Award, is $30,749,200. As the School Board's staff had determined before the special board meeting on October 12, 2004, MCM's base proposal amount is 15.48 percent below the S.I.T budget. The cost of Cummings' proposal is 11.36 percent below the budget, Pirtle's about three percent below $30.7 million, Seawood's roughly equal to the budget, and Stiles' proposal 12 percent above the established budget. On these percentages, using the scoring scale prescribed in the RFP, MCM and Cummings were entitled to 15 points apiece in the S.I.T. Award category, Pirtle seven points, Seawood six points, and Stiles zero points. The School Board was informed of these scores before its members graded the proposals on the seven remaining criteria. After the proposers had made their presentations, the board members individually assigned points to the proposals. MCM received the highest aggregate score (713), followed by Pirtle (705), Cummings (698), Seawood (668), and Stiles (541). Pirtle, however, received the most first choice votes of any proposer——four. Cummings received two first choice votes, and MCM and Seawood were each ranked first by one member. The following table depicts the rankings by member: Budnick Carter Gallagher Kraft Parks Rubinstein Wexler Williams 1 Seawood MCM Pirtle Pirtle Cummings Pirtle Cummings Pirtle 2 MCM (-1) Cummings MCM/Seawood (-4) Seawood MCM (-2) MCM (-1) MCM (-1) Cummings 3 Cummings Pirtle Cummings Pirtle Cummings Pirtle/Seawood MCM 4 Pirtle Seawood Cummings MCM Seawood Seawood Seawood 5 Stiles Stiles Stiles Stiles Stiles Stiles Stiles Stiles The parenthetic numbers in the second row show by how many points MCM trailed the first choice. Although Pirtle did not receive a majority of the first choice votes, the School Board nevertheless voted to award the contract to Pirtle.5 Pirtle has argued that MCM lacks standing to maintain this protest because MCM came in tied (with Seawood) for third—— behind Pirtle and Cummings, respectively——according to the number of first choice votes each proposal received. While the RFP does not specify a procedure for ranking the proposals behind the number one choice, the method suggested by Pirtle is inconsistent with the RFP's plain language, which is clearly intended to ensure that the contract is awarded to the first choice of a majority of the board members. To determine second place, the proper question is not, Who had the most first choice votes after Pirtle? but rather, Who would be the first choice of a majority if Pirtle were unavailable? To begin to answer the relevant question, Pirtle must be removed from the rankings of the respective members, and each proposer below Pirtle moved up a spot. When this is done, the rankings look like this: Budnick Carter Gallagher Kraft Parks Rubinstein Wexler Williams 1 Seawood MCM MCM/Seawood Seawood Cummings MCM Cummings Cummings 2 MCM Cummings Cummings MCM Cummings MCM MCM 3 Cummings Seawood Cummings MCM Seawood Seawood Seawood Seawood 4 Stiles Stiles Stiles Stiles Stiles Stiles Stiles Stiles 5 What the foregoing table shows is that without Pirtle, there is no clear favorite, but essentially a three-way tie between Seawood, MCM, and Cummings. Under the RFP, the School Board would need to take a voice vote until one of the three commanded majority support. That, of course, did not occur in the event. Therefore, it is impossible to determine, on the instant record, which proposer was the School Board's second choice (or third or fourth choice, for that matter). On October 15, 2004, MCM timely filed a notice of intent to protest the School Board's preliminary decision to award Pirtle the contract. MCM followed its notice of intent with a formal written protest, which was timely filed on October 25, 2004. MCM's protest rests on two pillars. The first is a contention that the School Board employed an unstated evaluation criterion, namely a preference for builders who had previously done work for SBBC. The second is an argument that Pirtle's proposal is materially nonresponsive for failing to comply with the RFP's directives on M/WBE participation.6 The findings that follow are pertinent to MCM's specific protest grounds. Regarding the alleged unstated evaluation criterion, it is undisputed that the RFP does not expressly disclose that past work for SBBC will or might count for more than similar work for another school district. The RFP does, however, contain a clear and unambiguous statement of experiential preferences, in Section 1.1(E), which states: The School Board of Broward County would prefer to select a Design/Builder with proven successful experience in the Design and Construction of 3 school projects completed within the past 5 years in the State of Florida. This sentence enumerates five discrete experience- related preferences, which are that, (1) in the past five years, the builder should have (2) designed and built school projects (3) on three occasions, (4) in the State of Florida, (5) each of which was a proven success. The list of experiential preferences in Section 1.1(E) is clearly exclusive, meaning that it does not purport to include other similar or related preferences, but rather is intended to identify all such preferences. This is demonstrated by the absence of any language, such as "including but not limited to" or "among other things," manifesting an intention to include other matters that are ejusdem generis7 with the items listed. Notice, too, that of the five experiential preferences, three are purely objective. Specifically, preference nos. 1, 3, and 4 (as numbered herein) are simply matters of historical fact that either happened or did not happen, for reasons wholly extrinsic to the mind of any School Board member. Moreover, the satisfaction of these three experience-related preferences is not a matter of degree: the desired quality is either objectively present, or it is absent; there is no discretionary middle ground. The upshot is that, as between two proposers who, as a matter of fact, have experience satisfying preference nos. 1, 3, and 4, no qualitative distinction can rationally be drawn as to those particulars. The other two experiential preferences, in contrast, are infused, in varying degrees, with elements of subjectivity. Thus, preference no. 2 allows the individual evaluator some discretion to determine what constitutes a "school project" and, more important, to distinguish qualitatively between one "school project" and another. Preference no. 5 is even more subjective, for "success," like beauty, is in the eye of the beholder. Rational distinctions could be drawn, therefore, between one proposer and another, based on personal (i.e. subjective) assessments of the relative "success" of the respective builders' prior "school projects."8 In evaluating the five short-listed proposals, seven of the eight participating board members9 did, in fact, award more points (on some criteria) to proposers that previously have built schools for SBBC (namely Pirtle, Cummings, and Seawood), while deducting or withholding points (on some criteria) from proposers who have not previously done work for SBBC (MCM and Stiles), based on each proposer's status as a former SBBC- contract holder or a newcomer to SBBC contracting.10 This strong parochial preference most dramatically affected the scoring of the Past Work Performance and References criterion, although some board members also considered a proposer's past work for SBBC (or lack thereof) in scoring Profile & Qualifications of Proposer's Team and even Proposed Project Scheduling.11 The preference for builders having previous business experience with SBBC had a palpable impact on the scoring and was likely decisive. Although it is impossible to quantify precisely the effect of the parochial preference, its influence can easily be seen in a comparison of the scores awarded, on the criterion of Past Work Performance and References, by the seven board members who favored SBBC-experienced builders: MCM Cummings Pirtle Stiles Seawood Budnick 7 10 10 3 8 Gallagher 3 5 10 6 8 Kraft 7 9 10 9 9 Parks 9 10 10 9 10 Rubinstein 5 10 10 8 6 Wexler 7 10 10 8 8 Williams 5 9 10 5 5 As the table shows, Pirtle, who has performed the most work for SBBC of any of the five competitors, received the maximum score from all seven of the board members who employed the parochial preference. Cummings, whose previous work for SBBC is significant but less extensive than Pirtle's, received an average score of 9 in the past work category. Seawood, which has performed some construction work for SBBC in the past, but not as much as either Pirtle or Cummings, received an average score of 7.71. Stiles and MCM, neither of which has done construction work for SBBC, received average scores of 6.86 and 6.14, respectively. At bottom, MCM and Stiles received, in the past work category, at least a point less, on average, than the lowest-ranked of the three builders having previous experience with SBBC. Given that three board members (Budnick, Rubinstein, and Wexler) ranked MCM just one point below their respective first choices, the parochial preference could well have determined the result even if its application produced only a small scoring discrepancy in a single evaluative category. One aspect of the preference for SBBC-experienced builders needs to be repeated for emphasis. The preference was manifested not only as an advantage conferred on builders having such experience, but also as a disadvantage imposed on builders lacking previous experience with SBBC. Builders having worked for SBBC received more points, for that reason, than they would have been awarded, had their previous projects been performed for owners other than SBBC, whereas builders who had not worked for SBBC received fewer points than they would have received, if their previous projects had been built for SBBC. The parochial preference, in other words, operated as a two-edged handicap, making it doubly powerful. In fact, the preference was so strong that SBBC experience was not, for seven evaluators out of eight, simply a factor to be considered in evaluating a builder's past work; it was effectively a condition of, or a prerequisite to, receiving the total possible points of 100. That is, the effect of the preference was such that unless a builder had previous experience with SBBC, the builder could not receive 10 points in the past work category from most of the board members, regardless of how extensive——and how successful——its experience in building schools for others had been. In sum, it is determined that the School Board used an undisclosed preference for builders having experience with SBBC in scoring and ranking the proposals, and that the use of this preference had a material effect on the evaluation——probably even deciding the outcome. Indeed, but for the use of this undisclosed preference, there is a good chance (though it is not certain) that MCM would have been the first choice of a majority of the board members. Whether the School Board's conduct in this regard requires that the proposed award to Pirtle be set aside will be taken up in the Conclusions of Law below. Turning to MCM's other principal contention, it is alleged that Pirtle's proposal deviated materially from the RFP's specifications because Pirtle allegedly failed to comply with the minimum requirements for minority participation in the Project. On the subject of minority participation, the RFP states, in relevant part: The School Board of Broward County, Florida is committed to affirmatively ensuring a substantial increase in the awarding of construction subcontracts to Minority Businesses. Design/Build firms selected to participate in this RFP must . . . have M/WBE subcontracting goals[,] and [the successful firm must] fully participate in the MBE Program. The M/WBE Contract Goal Range for this project is 20-22 percent. The Proposer should attempt to fulfill the goal with the following ethnic distributions: African American 6-8 percent Hispanic: 4-5 percent White Female 4-6 percent Other 0-3 percent The School Board encourages the use of minority subcontractors in excess of the minimum goal ranges established for this project. Section 00030, page 2. In addition, Section 1.13 requires that the following M/WBE-related information be submitted with a proposal: Document 00466 – Statement of Commitment [containing the proposer's pledge to comply with the M/WBE program] Document 00470 – Letter of Intent: M/WBE Subcontractor Participation [from each certified minority business that has agreed to participate in the Project, describing the subject of the subcontract and the dollar amount thereof] Separate Section with a sub tab: M/WBE Participation Briefly discuss how the Proposer will address the M/WBE participation goals. Identify proposed M/WBE team members, their role, and their anticipated percentage of participation. Include past experience with the team. Proposers shall submit evidence of dollar ($) participation for the past two (2) years, both internal and agency documentation of its M/WBE utilization, and, evidence of any M/WBE outreach, internship, and apprenticeship programs it conducts. Proposers, if awarded a contract, shall submit monthly M/WBE Utilization reports on forms provided by The School Board of Broward County, Florida, M/WBE Compliance Office, with each request for payment. Such reports shall also include evidence of dollar participation for the past 2 years, both internal and agency documentation of its M/WBE utilization, and evidence of any M/WBE outreach, internship, and apprenticeship programs it conducts. The foregoing language, which is contained in an addendum to the RFP that was issued on June 16, 2004, supplanted provisions in the first release of the RFP that would have required proposers to submit even more information relating to the satisfaction of M/WBE goals. Pirtle's proposal clearly complied with Sections 1.13(G) and 1.13(H)(1)(a)-(c) of the RFP. Where Pirtle fell short, according to MCM, was on the requirement to submit letters of intent from minority subcontractors. Pirtle did, in fact, attach a couple of letters of intent to its proposal——but these showed minimal minority participation, far below the prescribed range of 20-22 percent. MCM contends that proposers were required to submit letters of intent documenting minority participation meeting the M/WBE goals for the Project. Put another way, it is MCM's position each proposer needed to line up most or all of its minority subcontractors before submitting a proposal. The School Board asserts that proposers were not required to submit all of their letters of intent, but merely some letters as the fruit of good faith efforts to reach the mandated M/WBE goals.12 The evidence supports the School Board's contention that this was indeed the operative interpretation and understanding of Sections 1.13(G) and 1.13(H). Under this interpretation, a proposal such as Pirtle's that included some letters of intent would be deemed responsive; a paucity or plethora of letters of intent would then be a factor for the evaluators to consider in scoring MBE Participation, a selection criterion worth seven points. Whether the plain meaning of Section 1.13(H) supports MCM's or the School Board's position, or alternatively whether the School Board's interpretation is clearly erroneous, is a legal question that will be addressed below.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered that rescinds the proposed award to Pirtle. In addition, while recognizing that the choice of remedies for invalid procurement actions is within the agency's discretion, it is nevertheless recommended that a meeting be convened for the purposes of reassigning points to each proposer using the published selection criteria, re-ranking each proposer according to its respective scores, and awarding the contract to the firm that receives a majority of the first choice votes. DONE AND ENTERED this 21st day of March, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 21st day of March, 2005.
