The Issue The issue in this case is whether Respondent may revoke the Petitioner's qualification to bid on Florida Department of Transportation contracts for which pre-qualification is required for one year because of events and correspondence described in a Notice of Intent from Respondent dated October 6, 1999.
Findings Of Fact The Parties. Petitioner, Precision Traffic Counting Inc., d/b/a Buckholz Traffic (hereinafter referred to as "Buckholz Traffic"), is a Florida Corporation with its office located in Jacksonville, Duval County, Florida. Buckholz Traffic is engaged in the business of, among other things, installing traffic signals and signs, and related construction work. Burita Allen is the President and sole stockholder of Buckholz Traffic. Ms. Allen runs the day-to-day operations of Buckholz Traffic. Buckholz Traffic is certified by the Department of Transportation to bid and perform on construction contracts in excess of $250,000.00. Buckholz Traffic has been working with the Department of Transportation since 1966. Respondent, Department of Transportation (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with the authority to, among other things, award construction contracts and issued certificates of qualification to bid on Department contracts pursuant to Section 337.14, Florida Statutes. Jeffrey Buckholz. Jeffrey Buckholz holds a Florida Professional Engineering license. Mr. Buckholz is also licensed as an electrician in Florida. Mr. Buckholz is an employee and principal of J.W. Buckholz Traffic Engineering (hereinafter referred to as "Buckholz Traffic Engineering"). Buckholz Traffic Engineering is located in Jacksonville. In his capacity with Buckholz Traffic Engineering, Mr. Buckholz has performed engineering services for the Department and has provided training to Department employees. Mr. Buckholz is not technically an employee, officer, or stockholder of Buckholz Traffic. Nor has Mr. Buckholz received any compensation directly from Buckholz Traffic. Despite the lack of formal relations with Buckholz Traffic, Mr. Buckholz has performed services for Buckholz Traffic and has held himself as representing Buckholz Traffic. These actions have been taken with full knowledge and approval of Buckholz Traffic. For example, Mr. Buckholz has used his electrician's license to pull electrical permits required by Buckholz Traffic to perform work Buckholz Traffic was responsible for. Mr. Buckholz also served as project manager on projects for Buckholz Traffic, including the projects described, infra. Finally, Mr. Buckholz has allowed Buckholz Traffic to utilize his name in an effort to utilize trade recognition of his name. Based upon Mr. Buckholz' actions, as described, infra, and Mr. Buckholz' testimony at hearing, Mr. Buckholz has evidenced an inability to control anger and to act in a non- aggressive, non-threatening manner. Mr. Buckholz, due to his arrogance, has a difficult time following the directions of others and does not react responsibly to anyone who he believes is questioning his decisions. The Haines Street Project. The Department awarded a contract for work on the Haines Street Expressway (hereinafter referred to as the "Haines Street Project"). The Haines Street Expressway is located in Jacksonville, Duval County, Florida. Duval County is located in the Department's District 2. The Standard Specifications for Road and Bridge Construction, 1996 Edition (hereinafter referred to as the "Standard Specifications"), applied to all work on the Haines Street Project. Standard Specification 8-5 provides the following: 8-5 Qualifications of Contractor's Personnel. . . . . Whenever the Engineer shall determine that any person employed by the Contractor is incompetent, unfaithful, intemperate, disorderly or insubordinate, such person shall, upon notice, be discharged from work and shall not again be employed on it except with the written consent of the Engineer. Should the Contractor fail to remove such person or persons the Engineer may withhold all estimates which are or may become due, or may suspend the work until such orders are complied with. . . . This provision of the Standard Specifications provides absolute authority in the Department to require that contractors discharge persons employed by the contractor under the circumstances specified. The prime contractor on the Haines Street Project was Hubbard Construction Company (hereinafter referred to as "Hubbard"). Kevin Oswendel acted as the Project Manager for Hubbard on the Haines Street Project. Buckholz Traffic was one of the subcontractors on the Haines Street Project. Buckholz Traffic's obligations as subcontractor included the sale and installation of large signs to be suspended over the Haines Street Expressway. Mr. Buckholz acted as Project Manager for Buckholz Traffic on the Haines Street Project. The Department's Resident Engineer for the Haines Street Project was David Sadler. The Department's Project Manager for the Haines Street Project was Carrie Stanbridge, a Florida licensed Professional Engineer. Ms. Stanbridge was responsible for project implementation, project oversight, project construction in accordance with the contract specifications, Special Conditions, and the Standard Specifications. Ed Lavant was an Inspector for the Department on the Haines Street Project. On or about November 4, 1998, work scheduled for the Haines Street Project included the inspection of signs. The unloading of beams and trusses for the signs had been scheduled for November 3, 1998, but the manufacturer of the beams and trusses was not able to meet the scheduled delivery time. Any activity on the Haines Street Project which may disrupt traffic was required to be performed consistent with a Maintenance of Traffic Plan (hereinafter referred to as the "MOT"). The MOT for the Haines Street Project originally prepared by Hubbard had been modified prior to November 4, 1998, by Mr. Buckholz. In particular, Mr. Buckholz had revised the times in the MOT when traffic could be disrupted. The revised MOT was in effect on November 4, 1998. The MOT provided that there would be no disruption of traffic between 3:15 p.m. and 6:30 p.m. There were no anticipated lane closures at the project site after November 3, 1998, until midnight on November 5, 1998. The scheduled unloading of beams and trusses on November 3, 1998, was, however, delayed and the first delivery truck arrived on November 4, 1998. The truck arrived prior to 3:15 p.m. with heavy steel support beams and trusses to be used for signs on the Haines Street Project by Buckholz Traffic. Mr. Buckholz was present during the delivery. The subcontractor responsible for traffic control on the Haines Street Project was Acme Barricades. Although Acme Barricades did not know that MOT would be required on November 4, 1998, Acme Barricades was able to perform the required MOT for the lane closure required for the truck to be offloaded. Because of inadequate notice of the arrival of the truck, however, special arrangements had to be made to provide the MOT devices used. Buckholz Traffic also expected a second delivery truck later on November 4, 1998. Therefore, Mr. Buckholz stayed at the site to await the second truck so that he could supervise its unloading. All of the MOT devices that had been used for the first truck, however, had been removed from the site. Mr. Buckholz had informed Mr. Oswendel that there was no need for Acme Barricades to return later in the day for the second truck. Mr. Lavant was aware that there were no MOT devices available at the site and that it was approaching 3:15 p.m., the cutoff time for lane closures provided in the MOT that Mr. Buckholz had prepared for Hubbard. Therefore, Mr. Lavant approached Mr. Buckholz and informed him that he would not be allowed to offload the second truck after 3:15 p.m. because of the disruption to traffic the offloading would cause by the lane closure that would be required by the MOT. Mr. Buckholz informed Mr. Lavant that he intended to offload the second truck by parking the eighteen-wheel delivery truck and an eighteen-wheel boom truck to be used to lift the beams and trusses side-by-side on an on ramp which leads from the Haines Street Expressway to the Hart Bridge. Mr. Buckholz told Mr. Lavant that he intended to divert traffic entering the on ramp around the trucks on a paved area between the ramp and the through-traffic lanes that continued beyond the on ramp. This area is referred to as a "gore area." The gore area is marked by "chevrons" and there is an attenuator at the end of the gore area. The gore area Mr. Buckholz intended to use was not normally used for traffic but was intended as a buffer between the on ramp and the through-traffic lanes on the Haines Street Highway. While it might have been possible to offload the second truck without directly blocking the through-traffic lanes that continued past the on ramp, there still would have been disruption to the traffic using those lanes and Mr. Lavant had the authority to insist on proper MOT compliance. There would also have been disruption of traffic using the on ramp, which was only 14 feet wide. The potential disruption of traffic during the peak traffic rush hour caused a reasonable concern about the safety of the unloading of the truck as proposed by Mr. Buckholz. Mr. Lavant decided that Mr. Buckholz' plan for unloading the truck, which was anticipated to occur during the peak traffic rush hour, would disrupt traffic flow and would not be safe. This was a determination which the Department, and not Mr. Buckholz, had the authority to make. Mr. Buckholz' plan was also inconsistent with the MOT, which he had prepared for approval by the Department, because it would effectively close lanes during the prohibited period between 3:15 p.m. and 6:30 p.m. and the safety devices contemplated by the MOT were not available at the time that Mr. Buckholz indicated he intended to offload the truck. The MOT devices required included an arrow board closing the on ramp lane, an off-duty law enforcement officer, and traffic cones. When Mr. Lavant informed Mr. Buckholz that he could not offload the truck when it arrived because his offload plan was inconsistent with the MOT, Mr. Buckholz informed Mr. Lavant that he was not going to close any traffic lane and, therefore, the offloading of the truck would not be inconsistent with the MOT. Mr. Buckholz insisted that he intended to offload the truck despite Mr. Lavant's directive to the contrary. Mr. Buckholz became more and more confrontational and belligerent with Mr. Lavant and insisted that Mr. Lavant could not stop him from offloading the second truck. It became apparent to Mr. Lavant that Mr. Buckholz did not intend to follow his direction. Mr. Lavant realized that Mr. Buckholz intended to offload the truck when it arrived regardless of his instructions. Therefore, Mr. Lavant telephoned Ms. Stanbridge, the Project Engineer, and requested that she come to the site. Ms. Stanbridge discussed the matter with Mr. Buckholz and informed him that he would not be allowed to offload the truck in the manner he indicated he planned to follow. Mr. Buckholz was no more cooperative with Ms. Stanbridge than he had been with Mr. Lavant. Mr. Buckholz continued to insist that he was not going to block any traffic lane and, therefore, he intended to offload the truck when it arrived. Mr. Buckholz was belligerent and uncooperative with Ms. Stanbridge. Ms. Stanbridge felt physically threatened by Mr. Buckholz. Due to Mr. Buckholz' behavior and his refusal to comply with Ms. Stanbridge's instructions, Ms. Stanbridge telephoned Mr. Sadler, the Resident Engineer, and requested that he come to the site. He agreed. Mr. Sadler spoke with Ms. Stanbridge and Mr. Lavant when he arrived at the site. He then discussed the matter with Mr. Buckholz. Mr. Buckholz told Mr. Sadler that he planned to place the two trucks on the on ramp and offload the beams and trusses when they arrived. Mr. Sadler informed Mr. Buckholz that he would not be allowed to offload the truck because of the disruption to traffic Mr. Buckholz' planned activity would cause. Mr. Buckholz continued to be uncooperative and belligerent toward Mr. Sadler. Due to Mr. Buckholz' continued insubordination, Mr. Sadler told Mr. Buckholz that he intended to telephone law enforcement. Mr. Buckholz became enraged, "got into Mr. Sadler's face," and began yelling at him. Mr. Sadler telephoned law enforcement and also telephoned Mr. Oswendel, Hubbard's Project Manager. Two law enforcement officers arrived first. After Mr. Sadler informed the law enforcement officers of the situation, they informed Mr. Buckholz that the Department was in charge of the roads and, therefore, they would support the Department's decision not to allow Mr. Buckholz to place trucks on the on ramp. Mr. Oswendel arrived between 4:00 p.m. and 4:30 p.m. Mr. Oswendel attempted to discuss the matter with Mr. Buckholz and explained to Mr. Buckholz that he was required to follow the directions of the Department's employees. The discussion quickly turned into a loud confrontation. After having unsuccessfully argued his position with three Department employees, law enforcement, and Mr. Oswendel, Mr. Buckholz became enraged at Mr. Oswendel. Mr. Buckholz threatened Mr. Oswendel with physical violence and suggested that they go behind a building and resolve the matter by fighting. Although Mr. Oswendel was also angry, Mr. Oswendel refused Mr. Buckholz' unprofessional and uncivilized offer. Mr. Oswendel instructed Mr. Buckholz that he was not to offload the truck in the manner that he had informed the Department he intended to use. He then informed Mr. Sadler that he had instructed Mr. Buckholz not to perform any more work at the site that day. Mr. Oswendel then left the site. Mr. Buckholz remained at the site after Mr. Oswendel had left. Mr. Buckholz did not take any action to indicate that he intended to leave the site or that he would follow Mr. Oswendel's direction not to perform any more work at the site that day. The second delivery truck finally arrived approximately 7:00 p.m. Mr. Buckholz again requested that he be allowed to unload the truck from the on ramp. When again told that he could not use the on ramp, Mr. Buckholz requested and was given permission to offload the truck from a side street which ran next to the on ramp. While it was reasonable for Mr. Buckholz to initially contend that he should be allowed to offload the second truck from the on ramp, it was apparent that the Department had properly rejected his plan. Even having been told by three Department employees, Hubbard's Project Manager, and law enforcement that he could not use the on ramp to offload the second truck, Mr. Buckholz continued to insist that he be allowed to do so. Mr. Buckholz has insisted that he reasonably believed that he could offload the second truck safely and consistently with the MOT and, therefore, had followed Department directives. This assertion is rejected because it is not supported by the evidence in this case. The evidence proved that it was Mr. Buckholz' ego which was the real cause of Mr. Buckholz' refusal to comply. Even if Mr. Buckholz had proved that he reasonably believed that he could offload the second truck safely and consistently with the MOT, his continued failure to accept the directive of Department employees with authority to refuse to allow offloading from the on ramp was not reasonable. By letter dated November 10, 1998, Henry Haggerty, the Department's District Construction Engineer, advised Hubbard that Mr. Buckholz would not be allowed back on the project site in any capacity. This directive was consistent with the Department's authority under Standard Specification 8-5. The letter indicated that Buckholz Traffic's failure to comply with the Department's direction would "result in further contractual action." By letter dated November 10, 1998, Hubbard forwarded a copy of Mr. Haggerty's letter to Mr. Buckholz and ordered Mr. Buckholz to "conduct [himself] accordingly." Mr. Oswendel also sent a letter to Buckholz Traffic addressing Mr. Buckholz' unprofessional and uncivil behavior of November 4, 1998. Mr. Oswendel explained his understanding of the MOT requirements for the Haines Street Project and why Mr. Buckholz' actions had been inconsistent with those requirements. Mr. Oswendel informed Mr. Buckholz of the following: "I must insist that you develop a professional approach and civil demeanor toward Hubbard Construction, the FDOT, and anyone associated with the contract. Your actions yesterday were completely unacceptable." No action was taken by Buckholz Traffic to correct Mr. Buckholz' problem controlling his temper following the November 4, 1998, incident on the Haines Street Project. Nor was Mr. Buckholz disciplined in any manner by Buckholz Traffic for his actions on November 4, 1998. Mr. Buckholz did not, however, return to the project site. The Baymeadows/Hampton Glen Project. The Department awarded a contract for the installation of mast-arm signals and curb cut ramps for wheelchair access in a project referred to as the Baymeadows/Hampton Glen project (hereinafter referred to as the "Baymeadows Project"). Baymeadows and Hampton Glen are located in Jacksonville. The Standard Specifications governed all work on the Baymeadows Project, including Standard Specification 8-5. The prime contractor on the Baymeadows Project was Buckholz Traffic. Mr. Buckholz was designated and acted as Project Manager for Buckholz Traffic on the Baymeadows Project, although Ms. Allen also communicated with the Department concerning the project. A subcontractor was engaged by Buckholz Traffic to perform the curb cut work on the project. The Department's Resident Engineer for the Baymeadows Project was David Sadler. The Department's Project Manager for the Baymeadows Project was Stephanie Maxwell, a Florida licensed Professional Engineer. Ms. Maxwell was responsible for project implementation, project oversight, project construction in accordance with the contract specifications, Special Conditions, and the Standard Specifications. Mr. Lavant and David Schweppe were Inspectors for the Department on the Baymeadows Project. Mr. Schweppe had been employed by the Department only since August 1998. During the Spring of 1999 Mr. Lavant informed Ms. Maxwell that curb cuts on the project were not in compliance with contract specifications. Ms. Maxwell informed Buckholz Traffic in a letter dated April 20, 1999, that the construction of the curb cuts was not in compliance with the Roadway and Traffic Design Standards. Ms. Maxwell informed Buckholz Traffic that the curb cuts would have to be replaced. Ms. Allen responded to Ms. Maxwell's letter by letter dated May 1, 1999. Ms. Allen informed the Department that "[Buckholz Traffic had] no intention of removing and reinstalling the curb cuts without appropriate compensation and additional contract time." Such demands are required to be made after a contract is completed, not as a condition for contract fulfillment. Following receipt of Ms. Allen's letter, Ms. Maxwell arranged a meeting with Mr. Buckholz to discuss the curb cuts. The meeting was scheduled for May 28, 1999. Ms. Maxwell and Mr. Schweppe went to the project site on May 28, 1999, for the scheduled meeting. Mr. Buckholz was already there waiting for them. Ms. Maxwell, Mr. Schweppe, and Mr. Buckholz went to two of the defective curb cuts and Ms. Maxwell explained to Mr. Buckholz why the curb cuts were insufficient. At some point, Mr. Buckholz stated that the inspection of the curb cuts was the worst inspection job he had ever seen. Mr. Schweppe responded by saying that the construction job was the worst that he had ever seen. Mr. Buckholz, who does not take any criticism lightly, especially from anyone that he considers "inferior" to himself, became very upset about Mr. Schweppe's comment about the construction of the curb cuts. Mr. Buckholz got very close to Mr. Schweppe and began yelling and cursing at him. Mr. Buckholz was physically threatening and attempted to provide a physical altercation with Mr. Schweppe. Neither Mr. Schweppe nor Ms. Maxwell responded in kind to Mr. Buckholz. While the comments by Mr. Buckholz concerning the Department's inspection and the comments by Mr. Schweppe concerning the construction by the subcontractor that performed the curb cut work were unnecessary, Mr. Buckholz' response was in no way justified or professional. Ms. Maxwell attempted to get the discussion back on track by moving to a third curb cut. She crossed the street to the sidewalk to the location of the third curb cut. Mr. Schweppe followed. Mr. Buckholz followed Mr. Schweppe continuing to yell, curse, threaten, and attempting to provoke Mr. Schweppe. When Mr. Buckholz reached the sidewalk, he continued to walk away from the curb cut and the road down into a swale or ditch next to the sidewalk. Mr. Buckholz told Mr. Schweppe to come down into the ditch so he could "whip his ass." Mr. Buckholz continued to challenge Mr. Schweppe. At some point Mr. Schweppe did respond to Mr. Buckholz by telling him that "there is plenty of room right here," in reference to where Mr. Schweppe was standing. After it became apparent to Mr. Buckholz that Mr. Schweppe was not going to come to him, he returned to where Ms. Maxwell and Mr. Schweppe were standing waiting for him. As soon as he got to Mr. Schweppe, Mr. Buckholz struck Mr. Schweppe two times in the face with his fist without warning, provocation, or any justification. Nothing that Mr. Schweppe had done gave Mr. Buckholz even the slightest cause to strike Mr. Schweppe. Mr. Buckholz simply struck Mr. Schweppe because he had lost total control of himself and believed that resolving a confrontation by resorting to physical violence was acceptable conduct. Even at the formal hearing of this case, Mr. Buckholz continued to express his belief that such conduct is an acceptable way to resolve differences. After being "sucker" punched by Mr. Buckholz, Mr. Schweppe grabbed Mr. Buckholz in an effort to prevent him from any further attack. Mr. Schweppe was able to wrestle Mr. Buckholz to the ground, where he held him until he thought Mr. Buckholz was calming down. At no time did Mr. Schweppe strike Mr. Buckholz. After Mr. Schweppe received assurances from Mr. Buckholz that he had calmed down, Mr. Schweppe let Mr. Buckholz up. Mr. Schweppe had Mr. Buckholz pinned face down by his neck. When Mr. Schweppe released Mr. Buckholz, he did not push his face into the dirt. Mr. Schweppe and Ms. Maxwell immediately crossed the street to return to Ms. Maxwell's automobile so that she could telephone the police. Mr. Buckholz followed them and attempted to attack Mr. Schweppe again, but Ms. Maxwell attempted to stand in his way. When she did, Mr. Buckholz grabbed Ms. Maxwell by her arms and shoved her aside. Mr. Buckholz continued to yell, curse, and threaten Mr. Schweppe, who had turned to face him. Ms. Maxwell, who was reasonably concerned about her safety and that of Mr. Schweppe, telephoned law enforcement. Mr. Schweppe filed a complaint against Mr. Buckholz and he was eventually arrested. Mr. Schweppe suffered serious injuries to his face which required medical attention as a result of Mr. Buckholz' attack. Following the May 28, 1999, assault on Mr. Schweppe, the Department sent a letter dated June 1, 1999, to Ms. Allen informing her that "Mr. Jeffery Buckholz was no longer allowed to be present at the job site in any capacity. Failure on the part of Buckholz Traffic to comply with this directive will result in additional actions under the contract." This letter was from Greg Xanders, the State Construction Engineer for the Department. Mr. Xanders' letter of June 1, 1999, and the directive therein, was authorized by, and consistent with, Standard Specification 8-5. Buckholz Traffic was also directed to provide proof that Mr. Buckholz would no longer be a threat to Department employees before Mr. Buckholz was allowed to return to any Department project job site. In light of Mr. Buckholz' actions, this request was reasonable. Buckholz Traffic's Response to the Department's June 1, 1999, Directive. Ms. Allen responded to the Department's June 1, 1999, letter on behalf of Buckholz Traffic by letter dated June 6, 1999. Ms. Allen's response was as arrogant and unreasonable as the conduct of Mr. Buckholz that precipitated the June 1, 1999, letter. Based upon a reading of Ms. Allen's June 6, 1999, letter as a whole, Buckholz Traffic essentially told the Department it intended to take no action with regard to correcting Mr. Buckholz' conduct. Instead of indicating any concern over Mr. Buckholz' inappropriate conduct, Ms. Allen stated, in part, the following: We fully intend on completing this and other FDOT assignments using the same staff that was initially assigned to the projects. Consequently, we directly challenge your self-serving interpretation of Section 8-5 of the Standard Specification and will not cooperate with directives that are issued without due process and that fly in the face of basic freedoms guaranteed in the US Constitution. Ms. Allen went on to state the following, which summaries the attitude of Buckholz Traffic concerning its unwillingness to give the Department any assurances that Mr. Buckholz would not be a threat to the safety of other Department employees: So what do I need to clear Mr. Buckholz' good name, a "letter of normalcy" from a shrink or a "certificate of contriteness" from the local Baptist Church?" Ms. Allen and Buckholz Traffic responded to the legitimate fears of the Department about Mr. Buckholz' conduct with sarcasm rather than in a meaningful way. Ms. Allen and Buckholz Traffic made no effort to cooperate with the Department or attempt to correct a problem with a person that had consistently held himself out as an important part of Buckholz Traffic. Buckholz Traffic told the Department it would not comply with the directive the Department was authorized to issue pursuant to Standard Specification 8-5. By letter dated June 17, 1999, Mr. Xanders responded to Ms. Allen's June 6, 1999, letter. Mr. Xanders informed Ms. Allen that the Department welcomed any explanation of the incident she wished to give. Mr. Xanders also suggested that legal counsel for Buckholz Traffic, if any, could contact Department legal counsel to provide an explanation. Mr. Xanders restated the Department's directive, clarifying that the directive only pertained to construction work by Mr. Buckholz and not his engineering work. Ms. Allen made no effort to respond to Mr. Xanders' offers. Mr. Buckholz' Return to Baymeadows. A meeting was scheduled for August 11, 1999, between Ms. Maxwell and representatives of the City of Jacksonville (hereinafter referred to as the "City"). The meeting had been scheduled to turn on the newly installed traffic signals. In direct contravention to the Department's directive to Buckholz Traffic that Mr. Buckholz not return to the Baymeadows Project site, Mr. Buckholz returned to the site on August 11, 1999, to attend the meeting Ms. Maxwell had scheduled with the City. At no time did Ms. Allen, Mr. Buckholz, or anyone else on behalf of Buckholz Traffic request permission of the Department for Mr. Buckholz to return to the project site. Mr. Buckholz and Ms. Allen fully understood that Mr. Buckholz was not to return to the Baymeadows Project site. Despite their understanding of the Department's reasonable directive, Mr. Buckholz claimed to have returned to the site at the invitation of representatives of the City. He also claimed to have returned to the site to assist the City with the installation of traffic light timing software he had prepared and not in any capacity with Buckholz Traffic. Testimony in support of Mr. Buckholz' claims was not convincing. Nor was the evidence concerning the necessity that Mr. Buckholz be on the site during a meeting with Department employees convincing. Mr. Buckholz simply chose to ignore the Department's directive not to return to the site. Mr. Buckholz continued to believe that his actions on May 28, 1999, were justified and failed to consider the harm his conduct had caused to Department employees. Mr. Buckholz arrogantly volunteered his services to the City so that he could flaunt the Department's directive not to appear at the site. Had Mr. Buckholz given the Department's directive any consideration, he could have waited for the City and Department to complete their meeting and then meet with City representatives to perform any work required of him. The Department's Reaction to the Failure of Buckholz Traffic to Comply with the Directive of June 1, 1999. Mr. Xanders has been responsible for providing policy and procedure guidelines for the Department's Districts, carrying out construction programs, and providing training and quality assurance initiatives. In his capacity as State Construction Engineer, Mr. Xanders reviewed Mr. Buckholz' conduct described supra, and the reactions of Buckholz Traffic to Department directives concerning Mr. Buckholz' conduct. Mr. Xanders reviewed and relied upon correspondence from Ms. Allen dated May 1, 1999, May 16, 1999, and June 6, 1999. Based upon the foregoing, the Department informed Buckholz Traffic by letter dated October 6, 1999, that the Department was revoking Buckholz Traffic's qualification to bid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department revoking the qualification to bid of Precision Traffic Counting, d/b/a Buckholz Traffic, for a period of one year from the date of the final order and that Precision Traffic Counting, d/b/a Buckholz Traffic be considered non-responsible to bid on any construction or maintenance contract and to act as a material supplier, subcontractor, or consultant on any Department contract or project during the period of the revocation. DONE AND ENTERED this 3rd day of May, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 3rd day of May, 2000. COPIES FURNISHED: M. Lee Fagan, Esquire 3030 Hartley Road, Suite 105 Jacksonville, Florida 32257 Robert Aguilar, Esquire Smith, Metcalf, Aguilar & Sieron, P.A. Post Office Box 855 Orange Park, Florida 32067-0855 Brian F. McGrail, Esquire Brian A. Crumbaker, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attn: James C. Myers, Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact The Department of General Services, (hereinafter "DGS") is a state agency, the responsibilities of which include the management of state construction project. It accomplishes such management through its Division of Building Construction. The Divisions responsibilities include, negotiation of architect/engineer contracts, review of plans and specifications, contract administration, and contract management. One such project is Project No. MA-87080010, the subject matter of which involves repairs and alterations to the National Guard Armory in Fort Lauderdale, Florida, hereinafter referred to as the Armory Project. Certain portions of the bid specification for the Armory Project were prepared by the project architect, Mr. William D. Tschumy, Jr. Other portions, specifically the portions dealing with bidding conditions and contractual conditions, were provisions provided by DGS for inclusion in the specifications. The project architect was not familiar with all of the bid specification provisions provided by DGS. Prior to submitting its bid on the Armory Project, James P. Moran, Inc., had been prequalified for bidding on the project. Such prequalification did not obviate the need for James P. Moran, Inc., to meet the experience requirements in the bid specifications and in Rule 13D-11.904(2)(a)(8), Florida Administrative Code. The bid specifications for the Armory Project include the following provisions: 1/ Section B-2, page 9: 8. Firm experience - must have successfully completed no less than two project of similar size and complexity within the last three years. and; Section B-22, page 16: The owner reserves the right to reject any and all bids when such rejection is in the best interest of the State of Florida and to reject the proposal of a bidder who the owner determines is not in a position to perform the contract and to negotiate the contract in accordance with its Rule 13- D11.08 if the low qualified bid exceeds the project construction budget. James P. Moran, Inc., timely submitted its bid on the Armory Project and was subsequently notified that it had been recommended for contract award by the Director of the Division of Building Construction. This recommendation was made on the basis of a recommendation by the project architect that the bid be awarded to James P. Moran, Inc. At the time of making his recommendation, the project architect was not aware of the firm experience provision in either the bid specifications or the applicable rules. A timely protest was filed by another bidder on the Armory Project, in which the protesting bidder raised the issue of the firm experience of James P. Moran Inc. DGS concluded that the protest was valid and after further deliberation made the determination to reject all bids. All the bids other than the bid submitted by James P. Moran, Inc., exceeded the funds available for construction of the Armory Project. Because the other bids all exceeded the available funds, DGS decided that the best course of action would be to modify the scope and nature of the work involved in the project and then re-bid the project. It is reasonable to expect that the proposed modifications to the project will result in lower bids, because the modifications would permit the work to be done quicker and at less cost to the contractor. James P. Moran, Inc., was incorporated in 1981. However, prior to the summer of 1988, it had submitted no bids acquired no permits, and had neither started nor completed any jobs. The qualifying contractor for James P. Moran, Inc., is Mr. James P. Moran who, for many years prior to the summer of 1988, was an employee, officer, and shareholder of Frank J. Moran, Inc. Mr. James P. Moran holds a State of Florida building contractors license, a State of Florida electrical contractors license, a Dade County electrical masters license, a Broward County electrical masters license, and a State of Maine electrical contractors license. While employed by Frank J. Moran, Inc., Mr. James P. Moran was also the qualifying contractor for that corporation. While so employed, Mr. James P. Moran's primary duties were those of project director and estimator. He was also a corporate officer of Frank J. Moran, Inc. During his employment with Frank J. Moran, Inc., Mr. James P. Moran was the project manager on projects of similar size and complexity to the Armory Project. The construction budget for the Armory Project is approximately 250,000. The dollar values of construction jobs are valid indicators of the comparative sizes of construction jobs. The dollar values of the two largest construction jobs completed by James P. Moran, Inc., are approximately $161,000 and $112,000, respectively. The two largest construction jobs completed by James P. Moran, Inc., are not of similar size to the Armory Project. While DGS is concerned about the qualifications of the personnel employed by a contracting firm, DGS is also concerned about the track record of the firm itself, and, therefore, requires that a firm have completed projects in its own name in order to qualify for a bid award. In other words, a new firm cannot "take credit" for work performed by one of its employees at a time when the employee was working for another firm. Also, DGS does not allow "stacking" of the dollar value of several small jobs in order to demonstrate completion of a job of similar size to the job that is the subject of a bid. The purpose of the experience rule is to require a contracting firm to have completed at least two jobs of similar dollar size to the dollar size of the job being contracted. Among, the reasons stacking is not allowed is that completion of a job of any given size is a more complicated and complex undertaking than completion of a series of smaller jobs that total up to the same dollar value as the job of given size. DGS has now modified the scope of the project and has amended the plans and specifications in such a fashion that it will take less time to complete the modified Armory project and may reasonably be expected to result in lower bids closer to or below the construction budget. The modified Armory project may reasonably be expected to result in a savings of both time and money.
Recommendation For all of the foregoing reasons it is RECOMMENDED that the Department of General Services issue a final order in this case rejecting the bid of James P. Moran, Inc., as being non-responsive, and rejecting all other bids, in order to modify the scope of the project and rebid it. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of March 1990. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1990.
The Issue Whether Gamm Contracting Company (Gamm), Respondent, is in default on Contract 89095-3424 and its certification to bid on Department of Transportation (DOT) contracts subject to revocation. The critical issue presented in this case is whether Respondent's refusal to repair, without first being issued a supplemental agreement, damage to the project (89 095- 3424) caused by a third party prior to acceptance by DOT with no contributory negligence by Respondent, is grounds for revocation.
Findings Of Fact Gamm, Respondent, was awarded the contract as prime contractor to construct rest areas on 1-95 at the Martin County rest area southwest of Stuart, Florida. The job number of this contract is 89095-3424 (Exhibit 1). The project proceeded satisfactorily and was approximately 95% complete on December 7, 1988 when, around 8:45 a.m., a motorist southbound on 1-95 suffered an epileptic seizure, his car proceeded through the off-ramp barricade at the rest area under construction and collided with the west end of the south bound rest area building. The collision caused extensive damage to the wall of this building with estimated repair costs of approximately $46,000. On January 4, 1989, Gamm was notified by DOT that, pursuant to Section 7-14 of the Standard Specifications (Exhibit 2), DOT was holding Gamm responsible for the repairs to the building damaged by the automobile collision on December 7, 1988 (Exhibit 8). By letter dated January 12, 1989 (Exhibit 8), Gamm denied the contract placed the risk of damage to the building by a third party, without fault on the part of Gamm, on Gamm Contracting as contended by DOT. Considerable correspondence followed between Gamm and DOT in which DOT pursued its position that Gamm was responsible for the damage, and Gamm refused to make the repairs absent a supplemental agreement to cover the costs of repair. By letters dated March 3, 1989 (Exhibit 13) and May 19, 1989 (Exhibit 17), Gamm notified DOT of "presumptive completion" of the project and all work required under the contract is complete. DOT responded to these letters by letters dated March 6, 1989 and May 23, 1989, by pointing out incomplete items on the contract. As of the date of the hearing, Gamm had not obtained the required permit from the Department of Environmental Regulation for the well to provide water to the project. Accordingly, the building was not ready for use. At no time has DOT accepted this project as being completed by the contractor. By letter to Gamm dated June 23, 1989 (Exhibit 4), DOT declared the contract to be in default because repairs to the building caused by the automobile accident had not been repaired, and Gamm had stated it would not repair damage to this building. DOT Standard Specifications for Road and Construction (Exhibit 2) are an integral part of the contract entered into between Gamm and DOT to construct this rest area. Following the accident, the resident engineer at the project site directed Gamm to make the necessary repairs. Gamm refused without first receiving a supplemental agreement covering the cost of repair. The motorist's insurance carrier has offered the insurance coverage which is approximately $30,000 toward repair of this damage. DOT, pursuant to the terms of the contract, has withheld some $48,000 of the amount owed Gamm upon completion of the contract pending final acceptance. Gamm bases its position that it is not responsible to repair this damage on Section 7-14 of the Standard Specifications (Exhibit 2) which provides in pertinent part: Until acceptance of the work by the Department it shall be under the charge and custody of the Contractor and he shall take every necessary precaution against injury or damage to the work by the action of the elements or from any other cause whatsoever, arising either from the execution or from the nonexecu- tion of the work. The Contractor shall rebuild, repair, restore and make good, without additional compensation, all injury or damage to any portion of the work occasioned by any of the above causes before its completion and acceptance except that in the case of extensive or catastrophic damage the Department may, at its discretion, reimburse the contractor for the repair of such damage due to unforeseen causes beyond the control of and without the fault or negligence of the Contractor, including but not restricted to Acts of God, of the public enemy or of govern- mental authorities. Section 5-5 of Exhibit 2 provides for the work on the contract to be performed under the supervision of the engineer designated to supervise the construction and that he shall decide all questions, difficulties and disputes, of whatever nature, arising relative to interpretation of the plans, construction, prosecution and fulfillment of the contract and as to the character, quality, amount and value of any work done, and materials furnished, under or by reason of the contract. This contract provision is generally considered by the road and bridge construction industry to require the contractor to perform any work directed to be performed by the engineer on the project. If the contractor believes he should be paid for such work, his recourse is to file a claim. Section 5-12 of Exhibit 2 provides that where the Contractor deems that extra compensation is due him for work or materials not clearly covered in the contract or not ordered by the engineer as extra work, the contractor shall notify the engineer in writing of his intention to make a claim for extra compensation before he begins the work on which he bases his claim. Section 5-10 of Exhibit 2 provides the contractor shall maintain all work in first-class condition until it has been accepted as a whole and has been given final acceptance by the engineer. This provision is generally interpreted by the construction industry to mean the contractor is responsible to maintain the property and to repair any damage occasioned thereto prior to final acceptance by DOT. In addition to refusing to repair the damage to the building caused by the errant automobile, Respondent has not obtained the final permit from the Department of Environmental Regulation for the well. This permit is required before water can be supplied to the project and the rest station be placed into operation. Accordingly, apart from the damaged building, the project is not complete and ready for acceptance. However, Respondent does not contest the requirement that he obtain the permit needed before water can be made available to the facility. This leaves in dispute only the responsibility for repairs to the damaged building.
Recommendation It is recommended that Gamm Construction Company's qualification to bid on DOT contracts be suspended for one year. ENTERED this 18th day of December, 1989, in Tallahassee, Florida. K.N. AYERS 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 December, 198. COPIES FURNISHED: Jason O. Barber, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Charles F. Ketchey, Jr., Esquire M. Eric Edginton, Esquire Barnett Plaza, Suite 2400 101 E. Kennedy Boulevard Tampa, Florida 32602-5701 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Blackhawk is the owner of a mine located in Palm Bay, Florida, which, since 1982, has produced cemented coquina shell material for use as a base material in the building of roads. FDOT is the state agency responsible for the construction and maintenance of state roads. FDOT approves sources of supply of road base materials, including cemented coquina shell, for use by contractors in the construction of FDOT road projects. FDOT approval is intended to assure that the producer is capable of providing material in accordance with the standard specifications for that material. Approved source status is required for a producer to sell its material to a contractor for use on FDOT projects, or on non-FDOT projects (some cities and counties) which require that material be from an FDOT-approved source. Approval may be obtained upon the producer's request, after inspection and evaluation performed by FDOT's Bureau of Mining and Materials in accordance with the Standard Operating Procedure for Evaluation, Approval and Control of Mineral Aggregate Sources ("SOP") and Section 915 of FDOT's Standard Specifications for Road and Bridge Construction (("Section 915"). Approval does not guarantee that the producer's material will be used by a contractor. Contractors bidding on FDOT projects are given options of base materials from which to choose. Once the base material is chosen, the contractor selects a producer from the FDOT approved source list. A source's approval will expire if it has not furnished material for Department usage for a period of one calendar year; that period may be extended for one additional year upon the producer's written request. Section 915 defines the composition of cemented coquina shell material, provides for approval of material sources in accordance with the SOP, provides that the material shall be free of specified deleterious substances and sets forth the physical and chemical properties of the material, including the requirement that, "the minimum percentage of carbonates of calcium and magnesium shall be 50." (Petitioner's exhibit #2) Prior to amendment in 1986, Section 915 contained a provision granting the State Materials and Research Engineer the discretion to waive the requirement for minimum carbonates content if the material was determined to be equally suitable for its intended use. The 1986 amendment removed the waiver provision. The 50 percent minimum carbonate content provision has been in effect since 1969 or 1970. Section 915 is less than two pages within a 786-page document ("the Blue Book") entitled FDOT Standard Specifications for Road and Bridge Construction, 1986 Edition. The October 1986 version of Section 915 is in a separate two-page supplement. The Blue Book covers a vast array of subjects relating to contracts, construction, and materials for roads and bridges. The specifications change to keep up with developments in technology. The changes are placed in packets of supplemental provisions, like the current version of Section 915, and those provisions are eventually printed in a new edition of the "Blue Book". The standard specifications are incorporated into all FDOT road and bridge construction contracts, along with relevant supplements, and with "special provisions" which address the unique requirements of the project under contract. The SOP is a 28-page document which (in its words) "...establishes the Florida Department of Transportation's policy of accepting Limerock, Cemented Coquina and Shell Base materials produced for Department use through a producer Quality Control (QC) Program... [and] ...provides the producer with information related to the methods and levels of source approval, the minimum requirements for QC programs and approval, and the criteria by which the Department will maintain that approval. ..." (Petitioner's Exhibit #3, SOP, p. 1) Neither Section 915 nor the SOP have been adopted as rules pursuant to the requirements of Section 120.54, F.S. Blackhawk was an FDOT approved source of cemented coquina shell material in 1983 and 1984. The mine was given conditional approval in January 1985, for six months. The conditional approval expired in July 1985, and approval was suspended for failure to meet the carbonates requirement of Section 915. Blackhawk was not granted a waiver. While it was approved, Blackhawk provided material for two FDOT projects and for several other projects that required FDOT approval. Approximately one- third of its projects had a requirement that the rock come from a DOT-certified source. Blackhawk lost an ongoing contract on a county road project as a result of FDOT's suspension of its approval. Blackhawk continues in business, selling its material to sources which do not require FDOT approval. Blackhawk's President, Andrew Machata, has met with various individuals at FDOT regarding its status and Section 915 and the SOP. Initially, he was told that he had no administrative remedies, as FDOT personnel does not consider the process as subject to the Administrative Procedures Act. There is now pending a Section 120.57(1) F.S. proceeding related to Blackhawk's claim that it should be an approved source. (DOAH #85-4366) FDOT has promulgated administrative rules governing the prequalification of contractors to bid on FDOT projects, Chapter 14-22 FAC, and rules of procedure governing contract bidding and bid protests, Chapter 14-25 FAC. FDOT grants administrative remedies in both the prequalification procedure and in the bidding and bid award procedures. Blackhawk is not qualified to bid as a prime contractor of FDOT projects, nor is it seeking that qualification. It is seeking approval as a source of cemented coquina shell material, without which approval it cannot sell material to prime contractors for projects requiring FDOT approval.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints involving violations of the requirements of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes. Pursuant to Section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set out in that section. At all times material to this case, Mr. Vega was a certified general contractor operating under a license issued by the Construction Industry Licensing Board, numbered CG C046448. Mr. Vega has been a licensed general contractor in Florida since 1989, and since 1994, he has been the licensed qualifying agent for Group Construction South Florida, Inc. The residence of David M. Hudson, located at 19801 Southwest 84th Avenue, Miami, Dade County, Florida, was severely damaged in August, 1992, by Hurricane Andrew. In a letter dated October 13, 1992, Mr. Hudson, who holds a doctorate in biology and is the laboratory manager for the University of Miami Chemistry Department, proposed to Mr. Vega that he prepare plans for reconstructing the Hudson residence. On December 23, 1992, Mr. Hudson and Mr. Vega executed a contract for construction work to be performed on the Hudson residence. The parties contemplated that Mr. Vega would complete the work in accordance with the drawings and original blueprints prepared by Jose A. Sanchez, a structural engineer, at Mr. Vega's direction and based on preliminary plans approved by Mr. Hudson. Specifically, Mr. Hudson understood that the major elements of construction included in the December 23 contract were elevation of the house from one story to two stories, construction of a new living area on the second floor, and construction of a basement on the first floor to serve as a "bare bones storage area." The contract price specified in the December 23 contract was $146,338.33, with ten percent due upon acceptance of the proposal, ten percent due at completion of each of eight items of construction specified in the contract, and ten percent due upon completion of the project. The eight items of construction specified in the contract were "demolition work, rising work, tie beams, roof, doors & windows, plaster & tile, pool & fence, finish work and paint." On February 1, 1993, Metropolitan Dade County Building and Zoning Information Department issued Permit Number 93119957 to Mr. Vega for the Hudson project. The building permit was based on the original plans for the project submitted by Mr. Vega on January 19, 1993, together with some items that were added to the plans at the county's request. Mr. Vega began work on the project on February 1, 1993, the day the permit was issued. Mr. Vega hired Ruben Armas to act as foreman for the project, and his duties included hiring and supervising day laborers and procuring materials needed for construction. At the time, Mr. Armas was not licensed, registered, or certified by either Dade County or the State of Florida. Mr. Vega had an arrangement with Mr. Armas whereby he paid Mr. Armas periodic advances on a lump sum payment that Mr. Armas was to receive when the Hudson project was complete. Mr. Vega did not deduct FICA or withholding tax from the payments made to Mr. Armas under this arrangement. Mr. Vega dealt directly with Mr. and/or Mrs. Hudson regarding the project, although they would occasionally leave messages for him with Mr. Armas. Mr. Vega directly supervised Mr. Armas and gave him instructions on the work that was to be performed and the way it was to be done. Mr. Vega was routinely at the job site at least two or three times a day to inspect the work that had been done. Mr. Vega was present at the site during the entire time that cement was poured for footings or other structural elements. Mr. Vega arranged for various subcontractors to work on the project, including electricians, plumbers, air conditioning workers, roofers, carpenters, and drywall hangers. On April 14, 1993, a Department investigator conducted an inspection of the Hudson project during a "hurricane task force sweep." When she and the other members of the task force arrived on the job site, she observed Mr. Armas and two other men "inside working," but she did not observe them working or see the type of work they were doing. Mr. Armas walked out to meet the inspector and gave her a card that contained his name and phone numbers and the words "General construction & roof repair." Mr. Armas told the Department investigator that, when she arrived, he was "working on the footing for the elevation of the house." On April 21, 1993, Mr. Vega signed a Cease and Desist Agreement in which he acknowledged that the Department was investigating allegations that he had "engaged in the practice of aiding and abetting unlicensed contractor Ruben Armas." By signing the agreement, Mr. Vega agreed to cease "engaging in this activity," but he did not admit that the Department's allegations were true. The Department investigator was at the Hudson job site on April 14, 1993, for thirty minutes to an hour, during which time Mr. Vega did not appear at the site. This was the only time she was at the job site while work was being done. As the work progressed on the project, everything appeared to be going well, and Mr. Vega felt that he enjoyed a very good working relationship with Mr. and Mrs. Hudson. Mr. Hudson paid Mr. Vega a total of $116,400.00, or eighty percent, of the original contract price of $146,338.33, in ten percent increments as provided in the contract. By check dated December 23, 1992, Mr. Hudson paid the down payment of $14,633.38. By check dated February 5, 1993, Mr. Hudson paid $14,600.00 upon completion of the demolition work. By check dated March 5, 1993, Mr. Hudson paid $14,633.00 upon completion of raising the structure to two stories. By check dated March 24, 1993, Mr. Hudson paid $14,633.00 upon completion of the tie beams. By check dated April 19, 1997, Mr. Hudson paid $14,633.00 upon completion of the roof. By check dated May 13, 1993, Mr. Hudson paid $14,633.00 which should have been paid upon completion of the doors and windows but which he paid even though the installation of the doors and windows was not complete. By check dated June 23,1993, Mr. Hudson paid $12,000.00 of the $14,633.00 draw because, in his opinion, the project was not being completed on schedule. Finally, by check dated July 2, 1993, Mr. Hudson paid $17,000.00 to bring the payments up to the amount consistent with the contract schedule for completion of the pool and fence. In a letter to Mr. Vega dated June 7, 1993, Mr. Hudson stated that he wanted to make "a major change" in the plans. Specifically, Mr. Hudson wanted to eliminate the swimming pool, which he estimated would save $20,000.00 of the $146,633.00 contract price, and use the money saved "to completely finish the downstairs to be a nice guest area," to "install the better quality carpet we want, complete wooden fence, air conditioning in 1st floor, plumbing ~ electric in 1st floor, [and] indoor wooden shutters for all windows." Mr. Hudson went on to state that he wanted certain enumerated appliances, which would cost $4,108.00, and new furniture, which he estimated would cost $6,000.00, for a total of $10,108.00. According to Mr. Hudson's proposal, Mr. Vega should be able to "finish off the 1st floor the way we want it, install the nice carpet and tile, and do all the other jobs previously listed (fence, plumbing, etc., for 1st floor) for about $10,000.00." The basement area which Mr. Hudson wanted to finish as a "nice" living area consisted of approximately 2,000 square feet and had originally been designed as a storage area, with concrete floor and walls. Mr. Vega and Mr. Hudson discussed the proposal and the costs of the changes, but they did not reach an agreement on the cost of the additional work. 3/ Mr. Hudson asked Mr. Vega to leave the job site and cease work on the project on or about July 3, 1993, and Mr. Vega did not perform any work on the Hudson residence after this time. Mr. Hudson terminated Mr. Vega from the project solely because of the dispute with Mr. Vega over the cost of the changes he had requested in his June 7 letter. Mr. Hudson did not complain to Mr. Vega about the quality of the work that had been completed, and, although he thought that the project was getting behind schedule, Mr. Hudson issued a check dated July 2, 1993, which brought the total payments to eighty percent of the original contract price. When Mr. Vega stopped work on the project, the structure contained deviations from the original plans. 4/ Some of the deviations were items shown in the original blueprints which had not been incorporated into the structure; some were items that were not shown in the original blueprints but were incorporated into the structure at the request of, or with the approval of, Mr. and/or Mrs. Hudson; some were deviations in the size of openings to accommodate doors and in the location and size of windows; most were minor deviations in the placement of electrical switches and receptacles or other similar deviations. The construction was, however, generally consistent with the original plans. 5/ There were three items that were significant deviations from the original plans. The most serious deviation concerned the changes made in the dimensions of the structural slab that formed the floor of the second floor balcony off the family room, kitchen, and dining room and the roof of the first floor terrace. The original plans included a second floor balcony with a width of six feet. The Hudsons asked Mr. Vega to increase the width of the balcony, and Mr. Vega called Mr. Sanchez, the structural engineer who had prepared the original plans, and asked if the width of the slab could be increased. Mr. Sanchez approved an extension from the original six feet to eight feet, eight inches, and he advised Mr. Vega of the additional reinforcement that would be needed to accommodate the increased width. On the basis of Mr. Sanchez's approval, Mr. Vega incorporated the additional reinforcement specified by Mr. Sanchez and poured the slab to the requested width of eight feet, eight inches. Even though Mr. Vega consulted a structural engineer, he did not submit revised blueprints to the building department and obtain approval for the structural change before doing the alteration. He was aware that the building code required approval before such a change could be incorporated into a structure and that his actions violated the code. 6/ The second significant deviation from the original plans was Mr. Vega's failure to construct the fireplace shown in the original plans. According to the plans, a fireplace was to be constructed in the living room, on the second floor. Although the roof was completed and the drywall installed, no accommodation had been made for the fireplace in either the wall or the roof. Mr. Vega intended to construct the fireplace and would have done so had he not been told to cease work on the project. The third significant deviation from the original plans concerns the windows installed in the structure. No window permits or product approvals were contained in the permit file for the Hudson project. In addition, some of the windows were not the size specified in the original plans, some were too deep, and some were placed lower than the thirty inch sill height specified in the original plans. Many of the items identified as "deviations" were actually items not shown on the original plans but incorporated into the structure at the request of, or with the approval of, Mr. and/or Mrs. Hudson. Neither the requests for the additional items nor the costs of the items were reduced to writing by Mr. Hudson or Mr. Vega. At the time Mr. Hudson directed him to cease work on the project, Mr. Vega had contracts with subcontractors to provide the labor and materials specified in the original contract. He was prepared to complete the project in accordance with the original plans and for the original contract amount, with adjustments for the extras that had already been incorporated into the project at the request of, or with the approval of, Mr. and/or Mrs. Hudson. He was also prepared to correct all deficiencies and code violations in the structure. After he was terminated from the project, Mr. Vega continued to negotiate with Mr. Hudson's attorney to arrive at an agreement for completion of the project that would be satisfactory to Mr. Hudson. In a proposal submitted to Mr. Hudson's attorney in the fall of 1993, Mr. Vega offered to complete the project in seven weeks in accordance with the original plans, as modified to incorporate the changes and upgrades Mr. Hudson had requested in the June 7 letter and the changes and upgrades that had already been incorporated into the project at the request of, or with the approval of, Mr. and/or Mrs. Hudson. The total price for completion proposed by Mr. Vega was $56,750.00, which included the cost of the upgrades and extras and the $29,572.00 balance owing under the original contract. Mr. Hudson did not accept this proposal. Instead, he eventually hired a contractor named Robert Krieff, who did some work on the project. In February, 1994, Mr. Hudson took over the building permit himself and hired various subcontractors to work on the project. According to Mr. Hudson, in addition to the $116,400.00 he paid Mr. Vega, he has paid approximately $50,000.00 for work done after he terminated Mr. Vega, and he anticipates spending another $35,000.00 before a Certificate of Occupancy is issued. Mr. Hudson paid off a lien on his property for work done pursuant to his contract with Mr. Vega. A Claim of Lien in the amount of $4,712.00 was filed by Luis A. Roman on October 5, 1993, for drywall hung and finished at the Hudson residence under an arrangement with Mr. Vega. Summary of the evidence. The evidence presented by the Department is sufficient to establish that Mr. Vega willfully violated the building code with respect to the alteration of the width of the second floor balcony. Mr. Vega admitted that he knew he was violating the building code when he extended the width of the second floor balcony beyond the width specified in the original blueprints before submitting revised engineering plans to the county and receiving approval to make the alteration. This violation is one of procedure only, however, and there was no competent evidence presented to establish that Mr. Vega failed to include adequate reinforcement to compensate for the additional width prior to pouring the slab or that there were structural problems with the slab. 7/ The evidence presented by the Department is sufficient to establish that Mr. Vega violated the building code because the work completed by Mr. Vega on the Hudson project contained deviations from the original approved plans. 8/ On the other hand, the evidence presented by the Department is sufficient to establish that this violation is a minor one. The Department's experts testified that the construction done on the Hudson residence by Mr. Vega was generally consistent with the approved plans and that it was commonplace for contractors in Dade County to deviate from the approved plans and later submit revised plans for approval. The evidence presented by the Department is sufficient to establish that Mr. Vega did not file product approvals or obtain window permits prior to windows being installed in the Hudson project. The evidence presented by the Department is not sufficient, however, to establish that these omissions on Mr. Vega's part constituted a violation of section 204.2 of the South Florida Building Code, as alleged in the Administrative Complaint. Although there was some testimony that the building code requires that product approvals be filed and window permits obtained before windows are installed, the applicable code and section were not identified by the Department's witnesses or otherwise made a part of the record. Thus, there is no evidence of the precise obligations imposed on Mr. Vega by the code that was applicable at the time of the Hudson project. As a result, it is not possible to determine whether Mr. Vega fulfilled his obligations under the code. The evidence presented by the Department is not sufficient to establish that Mr. Vega assisted Mr. Armas in engaging in the unregistered or uncertified practice of contracting. There is no evidence in the record that Mr. Armas performed any work on the Hudson project that could be performed only by a licensed contractor. 9/ Notwithstanding the opinions stated by the Department's experts, the evidence presented by the Department is not sufficient to establish that Mr. Vega is guilty of incompetence or misconduct in the practice of contracting as a result of the work done on the Hudson project. The evidence presented by the Department is sufficient to establish that Mr. Hudson suffered financial loss in the amount of $4,712.00, which is the amount Mr. Hudson paid to clear the lien placed on his property by Luis A. Roman. Although this loss is attributable to Mr. Vega's failure to pay Mr. Roman for hanging and finishing drywall in the Hudson residence, the evidence presented by the Department is not sufficient to establish that Mr. Hudson suffered financial loss as a result of the violation with which Mr. Vega was charged and of which he was proven guilty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order dismissing Counts I and III of its Administrative Complaint, finding that Gonzalo Vega is guilty of violating section 489.129(1)(d), Florida Statutes (1993), and imposing an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 3rd day of July, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1997.
Findings Of Fact Leamington (Petitioner herein), is a road maintenance and construction contractor doing business since approximately 1985. John Hummell is Petitioner's President and is responsible for all bids submitted for contract awards. Petitioner contracts primarily with the Florida Department of Transportation (Respondent herein). Since 1985, Petitioner has entered into approximately forty-one (41) contracts with Respondent. Petitioner was one of seven bidders on State Job #17030-3536, Contract E-1706, let by Respondent in District I. Respondent notified Petitioner of its decision to award the bid to the second lowest bidder, Simco, by notice posted on April 19, 1993 stating that Leamington's bid was rejected because it was considered not to be responsible and was not in the best interest of the Department (to contract with Leamington). The work in question involves the repairs of the bridge located at SR- 789 at Little Ringling Causeway west of Sarasota in Sarasota County. The work entails removal and replacement of silicone sealant on the bridge deck and replacement and rejacketing of piling with grout epoxy. The bid tabulations revealed that Petitioner's bid was approximately $500.00 less than that of the second lowest bidder, Simco, Inc., of Sarasota. The Department has a procedure called the "district contracts procedure". Part of the procedure calls for the awards committee to review bids and determine who the bid should be awarded to. The awards committee, which was chaired by Glenn Ivey, the District Director of Operations, reviewed the bid submitted for project E-1706. The awards committee voted unanimously to reject Leamington's bid on Contract E-1706. The decision to reject Petitioner's bid, by the awards committee, was based on Petitioner's performance on its more recent Department contracts. Specifically, the awards committee considered projects E-1649, for sidewalk repair in several counties; contract E-1545, a concrete repair job in Lakeland; and contract E-1652, a roadway shoulder repair job. Leamington's contract on the concrete repair job (E-1545) was rated as being poor when Leamington was, in effect, asked to leave the job. Based on Leamington's poor workmanship and difficulties encountered on that contract, Respondent terminated work on the contract after approximately sixty percent (60 percent) of the work was completed. The remainder of that project was completed by another contractor. Specifically, Job No. E-1545 called for Petitioner to remove and replace portland concrete slabs on Memorial Boulevard in Lakeland. Petitioner failed to restore the concrete slabs to a smooth surface, making it necessary for Respondent to have the slabs ground such that motorists had a smooth driving surface. After several warnings, Respondent cancelled the project and, as noted, approximately forty percent (40 percent) of the work was completed by another contractor. Another project reviewed by the awards committee was Contract E-1652, a roadway shoulder repair contract. On that project, Petitioner was advised that the shoulder had to be graded at a certain angle and was shown, by several of Respondent's engineers, the proper manner in which to accomplish the task. Petitioner failed to grade the shoulder at the correct angle as requested. Petitioner also routinely failed to provide proper traffic control during the performance of Contract E-1652 and frequently disputed Respondent's employees advice as to work instructions and ways to eradicate the poor workmanship on that project. Additionally, Petitioner failed to use skilled workers and did not have ample equipment on the job to perform the work on Contract E-1652. Initially, Petitioner had limited equipment at the beginning of the work on Contract E-1652. After Petitioner received a letter from Respondent advising that there wasn't adequate equipment to complete the project, Petitioner obtained additional equipment. The Department terminated Petitioner's work under Contract E-1652 because Petitioner had approached the contract deadline for completion and due to of the numerous problems the Department experienced with Petitioner in getting the work completed acceptably. Bobby Cranford, the Assistant Maintenance Engineer for the Petitioner's Sarasota Maintenance Unit, recommended that Petitioner not be awarded any more roadway shoulder repair contracts based on the difficulties experienced by Petitioner's "poor" workmanship on contract E-1652. Another project reviewed by the awards committee was Petitioner's work performance on Contract E-1649, a sidewalk repair job which encompassed several counties. Petitioner did not have the required personnel and expertise to perform the sidewalk job correctly. Petitioner was kept informed of deficiencies and necessary corrections to correctly perform the sidewalk repair job, however, the proper repairs have not been made. The Respondent introduced a composite of twenty-three (23) photos showing the extent of the problems Petitioner needed to correct the sidewalk repairs with notes as to the corrective action that was needed. Specifically, Petitioner used little expansion joint materials and no edging tools were utilized on the project. Similar problems were found throughout the four county area in which Petitioner was engaged on the sidewalk project. By letter dated May 13, 1993, Respondent advised Petitioner of the numerous problems on contract E-1649. Specifically, Petitioner's President was told of visual inspections which showed substandard work on the original work as well as the work wherein Petitioner attempted to correct deficiencies which were discovered by Respondent. For example, Petitioner was advised that at 506 First and Main Streets in Wachula, there were sections of concrete sidewalk removed and scheduled for replacement with adjacent sections now damaged. Petitioner was further advised that workers had driven trucks on the sidewalk damaging several slabs not marked for replacement. Finally, Petitioner was asked to correct broken sprinklers at the work site and to resolve a claim filed by a Mrs. Campbell, which was registered with Respondent. The awards committee also relied upon an independent inspection report prepared by Bobby Cranford. That report is a forty (40) page report citing numerous deficiencies on the sidewalk repair project. Respondent requires that contractors employ english speaking superintendents at each work site to assist in communicating with its inspectors. Petitioner utilized superintendents who did not speak english and thereby created a language barrier making communication difficult with Respondent's personnel. Respondent had to monitor Petitioner's projects extensively and at a cost which increased the Department's overhead disproportionately when compared to other projects let to other district contractors. Based on a review of Respondent's work on Petitioner's recent contracts, no other contractors performing contracts in District I had a performance record as poor as Petitioner. When the awards committee made its decision to reject Petitioner's bid on the subject contract, it also relied on a memorandum from , Wally Clark, a District I attorney. In the memorandum it was concluded that Petitioner had subcontracted work to Hummell, Inc., a separate entity and that the required prior written approval of the subcontracting had not been obtained from Respondent. The investigation also revealed that the subcontractor, Hummell, Inc., had not been paid for its services (by Petitioner). An internal audit also prepared by Wall revealed that Hummell, Inc. was an unpaid subcontractor of Petitioner. The awards committee also considered allegations from Phillip Spears, a subcontractor of Petitioner, who had not been paid for work performed on Respondent's contracts. The committee also considers a newspaper article which stated that Petitioner was under investigation by local law enforcement officials for failure to pay subcontractors on the Interstate 75 project. Dennis Hall is the District Investigator for District I. Hall accompanied Wall, the author of the internal audit report, on investigations and interviews in compiling the audit report. One of the persons interviewed by Wall and Hall was Larry Zavitz. Zavitz was an inspector employed by Petitioner in excess of twenty- eight (28) years and had performed the inspection on Petitioner's sidewalk repair project under Contract E-1649. During the interview of Zavitz, he admitted to receiving a loan of $1,000.00 from John Hummell which Zavitz had not fully repaid at the time of the interview. Upon Zavitz admission of accepting the loan, he was asked and later resigned from the Department.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED that: Petitioner's protest of the rejection of its bid on Contract E-1706 be rejected and the Department enter its award of the subject contract to the second lowest responsible bidder, Simco, Inc. of Sarasota. DONE AND RECOMMENDED this 8th day of September, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 8th day of September, 1993. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Haydon Burns Building 562 Suwannee Street Tallahassee, Florida 32399-0458 William H. Roberts, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Michael E. Riley, Esquire 106 East College Avenue Post Office Box 10507 Tallahassee, Florida 32302
Findings Of Fact On February 29, 1984, DOT received bids on a highway construction project designated as follows: Federal Aid Project No. F-300-2(3)(JOB No. 11070-3504), Lake County, Florida ("the project"). Six bids were submitted. Intervenor was the apparent low bidder, having submitted a bid in the amount of $5,479,403.76. Petitioner was the apparent second low bidder at $5,491,602.16. Following a review of the bid submitted by Intervenor, DOT determined Intervenor to be the lowest responsible bidder and announced its intention to award the project to Intervenor by posting the bid tabulations on April 9, 1984. Thereafter, Petitioner filed its notice of protest with DOT within the time provided in Section 120.53, Florida Statutes. The project at issue in this proceeding is a federal aid project. In order for DOT to receive federal aid funding from the United States Department of Transportation for the project, the Federal Highway Administration must concur in DOT's decision to award the contract to a particular contractor. At the time of the bid letting, Petitioner held a Certificate of Qualification with DOT. Thereafter, however, on April 20, 1984, Petitioner was convicted by the United States District Court for the Northern District of Florida, Tallahassee Division, of conspiring to submit collusive, non- competitive and rigged bids in violation of Title 15, United States Code, Section 1. Thereafter, on June 1, 1984, DOT sent Petitioner a notice by certified mail that it intended to revoke Petitioner's Certificate of Qualification pursuant to Section 337.165, Florida Statutes. The notice advised Petitioner that it could request a hearing within ten days of receipt of notification, but Petitioner chose not to request such a hearing. Thereafter, by final agency action of June 18, 1984, DOT revoked Petitioner's Certificate of Qualification to participate as a contractor on DOT projects for a period of 36 months commencing June 18, 1984. On June 18, 1984, the Federal Highway Administration declared Petitioner unacceptable for employment on any future highway projects requiring Federal Highway Administration approval or concurrence for a period of six months commencing June 1, 1984, and ending December 17, 1984. This action was based upon Petitioner's aforementioned conviction.
The Issue The issue is whether Respondent undertook to act as a contractor without a license as charged in the Administrative Complaints, and if so, what disciplinary action should be taken.
Findings Of Fact Pursuant to Section 20.165, the Division of Professions is a subordinate unit of the Department of Business and Professional Regulation (the Department). The Department provides administrative support, including prosecutorial support to the Construction Industry Licensing Board (the Board), which is also located within the Department. Mr. Grandmont is not currently licensed as a State Registered or State Certified Contractor in this state, nor has he ever been licensed by the Board. Mr. Grandmont's last known address is 355 China Berry Circle, Davenport, Florida. He was provided notice of the hearing at that address, and at 7733 Park Road, Charlotte, North Carolina 28210, which is the address he used when demanding a hearing on disputed facts in two of these cases. In DOAH Case No. 06-3279, he provided no address in his demand for a hearing. All attempts by U. S. Mail to notify Mr. Grandmont of the hearing, were returned. Mr. Grandmont is deemed to have known of the time, date, and place of the hearing, and is deemed to have waived his appearance at the hearing. On November 11, 2005, subsequent to Hurricane Wilma, Robert L. Coe, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged mobile home. He provided a written estimate of $10,500. The estimate contained a list of 11 items requiring repair, and stated that he would accomplish the repair of them. He demanded a $4,200 down payment, which Mr. Coe provided in a draft drawn on Fidelity Cash Reserves, and dated November 11, 2005. Mr. Coe never saw Mr. Grandmont again. The repairs set forth in the written estimate were not accomplished. The draft, however, was negotiated by Mr. Grandmont. On November 12, 2005, subsequent to Hurricane Wilma, Joseph Webster, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged residence. Mr. Grandmont discussed charging $13,500 in return for repairing Mr. Webster's residence. After negotiations, Mr. Grandmont agreed to do it for $11,500. No written estimate or contract was prepared. Mr. Grandmont demanded $5,750 payment in advance. Mr. Webster rounded off the down payment to $6,000 and presented Mr. Grandmont an official check of the Taunton Federal Credit Union, of Taunton, Massachusetts, for that amount. The check was negotiated by Mr. Grandmont, but the promised repairs were not accomplished. On November 4, 2005, subsequent to Hurricane Wilma, Ella Arseneau, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to replace her roof. He provided an estimate of $5,500 in return for repairing Ms. Arseneau's residence. He demanded that she pay $3,500 in advance, which Ms. Arseneau provided by presenting Mr. Grandmont a check for $3,500, drawn on an account in Wachovia Bank. The check was negotiated by Mr. Grandmont, but the roof was not repaired as promised. Mr. Coe is 78 years of age, Mr. Webster is 85, and Ms. Arseneau is 77.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation impose a fine upon Clifford Grandmont in the amount of $30,000. DONE AND ENTERED this 28th day of November, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 28th of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Clifford Grandmont 7733 Park Road Charlotte, North Carolina 28210 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Simone Marstiller, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
