Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Captain Thomas A. Baggett, the respondent, has been a Tampa Bay pilot since 1969. At all times relevant to this proceeding, respondent has held a State pilot's license and is subject to the disciplinary jurisdiction of the Board of Pilot Commissioners. The M/V SCANDANAVIAN STAR is a Bahamian registered cruise ship which is 465 feet in length and has a beam of 72 feet. Because of its twin screws, twin rudders, twin bow thrusters and controllable pitch propellers, it is one of the most maneuverable ships on Tampa Bay. Its machinery and equipment functioned properly on December 2, 1984. Prior to making the outbound transit on the morning of December 2, 1984, Captain Baggett communicated with a tug and a dredge down the bay to inquire about the visibility because there was a hint of fog at the dock. It was reported to him that the tug and the dredge had three to four miles visibility. As respondent was piloting the M/V SCANDANAVIAN STAR toward C Cut, a heavy curtain of fog suddenly appeared near the vicinity of Buoy 17. The speed of the vessel was reduced to approximately ten knots, and respondent determined to proceed to Gadsden Cut. He was concerned that if he attempted to stop and anchor in the 500 foot wide channel, the stern of the ship would swing around, causing the vessel to run aground. As the vessel proceeded down C Cut, respondent was observing two radars - - a smaller radar set on a three-mile range and a larger radar set on a mile and a half range. On the bridge with him were Captain Rodenboog, Staff Captain Phillips, the Third Officer and the Helmsman. After respondent visually cited Buoy 13, located about nine-tenths of a nautical mile from Buoy 17, he ordered the vessel to begin making its turn. Several targets in addition to buoys appeared on the radar screen. Upon spotting what he believed to be Buoy 11 on the radar screen, respondent attempted to complete his turn utilizing that target as his turning point. Instead of completing the turn, the vessel ran aground. The only change in speed of the vessel between Buoy 13 and 11 occurred immediately before the grounding when Captain Rodenboog increased the speed to 11 knots to attempt to gain better steerage. After the fog lifted, respondent realized that what he thought was Buoy 11 was instead an anchored shrimp boat or fishing boat. Buoy 11 was discovered to be about 100 feet from the vessel's port bow. There is a distance of about three-tenths of a nautical mile between Buoys 13 and 11. There was no damage to the vessel M/V SCANDANAVIAN STAR as a result of the grounding. After the tugs were alongside, the vessel was refloated in a short period of time and continued on its voyage. Respondent brought the vessel back into port on the evening of December 2, 1984, without difficulty. There was some confusion as to the exact location of the grounding and the proper numbering of the buoys visually sited prior to and after the grounding. This resulted from the fact that the vessel's charts had not been updated with Local Notice to Mariners 20-84, which renumbered certain buoys, including Buoys Numbers 13 and 11. While this confusion contributed to discrepancies in reports and descriptions of the casualty during the investigation, it is specifically found that the actual numbering of the buoys had no causal effect in the grounding episode. When visibility is impaired by fog, there are various means for a pilot to properly determine his location. One, of course, is to stop the vessel and anchor until the fog lifts. It was not unreasonable for the respondent to discard this alternative due to the configuration of the channel and the length of the M/V SCANDANAVIAN STAR. Another means of determining location is "dead reckoning", or timing. This method involves several mathematical calculations of time, speed and distance, and is the most accurate when the speed of the vessel remains constant. Given the fact that there was a short period of time between the onset of heavy fog and the turns required, as well as the fact that there had been an adjustment in the speed of the vessel, it was not unreasonable for respondent not to utilize dead reckoning in determining the vessel's exact location before turning on what he believed to be Buoy 11. A functioning, properly adjusted, and appropriately interpreted radar picture provides a means of identifying a channel and determining a vessel's location with respect thereto. Proper utilization of a radar allows a turn from one channel to another to be accomplished with safety despite the presence of heavy fog. A reasonable and prudent pilot should look ahead and anticipate when using radar. Even if other contacts, such as pleasure boats or fishing boats, appear on the radar screen, a prudent pilot should be able to determine the pattern of buoys denoting the channel by taking into account other known landmarks in the vicinity. An alteration in course, such as a turn, should never be made on the basis of a single contact or scanty information. If the picture on the radar screen does not provide sufficient information, the range can be adjusted to provide further information. When operating with a single radar, some pilots consider it bad practice to shift the radar range or scale during a turn because of the possibility of losing the picture completely or having the previous range's targets continue to appear as "ghosts" on the new scope. As mentioned above, the M/V SCANDANAVIAN STAR had two operating radars at the time respondent's visibility was impaired by fog. One of the radars was set at a three-mile range and the other was set at a range of a mile and a half. It was therefore not necessary to shift the range of either radar to receive the information required to properly make the turn from C Cut to A Cut. Indeed, respondent admits that there were many contacts on the radar screen, that he could see the buoys into Gadsden and Big Bend Terminal and that he took them into account when he made his decision to turn on the target which he believed to be Buoy 11, but which in fact turned out to be a fishing boat. A forty- foot long, anchored fishing boat can resemble a buoy on a radar screen. Respondent simply mistook the fishing boat for Buoy 11 on the radar screen. This caused him to turn too soon, thus grounding the vessel. As a pilot, it was his responsibility to utilize his knowledge of known landmarks and determine which contacts on the radar screen denoted the channel and which contacts did not. If there were any doubt, respondent should have reduced the speed of the vessel and attempted to place the various contacts on the radar screen into context prior to making an alteration in course.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of negligence in piloting the M/V SCANDANAVIAN STAR on the morning of December 2, 1984, and that an administrative fine of $500.00 be imposed. Respectfully submitted and entered this 21st day of Januray, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21 day of January, 1987. APPENDIX The proposed findings of fact submitted by the petitioner and the respondent have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below. Petitioner Second sentence partially rejected, as the evidence demonstrates that speed was reduced at the initial onset of fog. Last sentence partially rejected insofar as it infers that only a single contact appeared on the radar screen. 17. Rejected as unsupported by competent, substantial evidence. 19. Rejected as irrelevant and immaterial. See Findings of Fact Number 8 in Recommended Order. Respondent 21. Partially rejected. Insufficient evidence to demonstrate that the shrimp boat was anchored "in the line of the buoys." 39. Rejected as contrary to the respondent's testimony that he visually spotted Buoy 13. 51-53. Accepted as correct recitation of testimony, but irrelevant to ultimate issue in dispute. 64. Rejected as irrelevant to the facts established. 66 & 67. Rejected as contrary to the greater weight of the evidence. 81. Rejected. The issue is not whether the vessel should have turned, but whether the location of the turning was appropriate. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PILOT COMMISSIONERS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. DOAH CASE NO. 85-2978 THOMAS A. BAGGETT, Respondent. / FINAL ORDER OF THE BOARD OF PILOT COMMISSIONERS This matter came before the Board of Pilot Commissioners pursuant to Section 120.57(1)(b)(9), Florida Statutes, on March 17, 1987, May 5, 1987, June 20, 1987, September 1, 1987 and November 10, 1987, in Tampa, Florida, for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A). Petitioner, Department of Professional Regulation, was represented by H. Reynolds Sampson, Esquire. Respondent was present at all but the November 10, 1987 meeting and was represented by Margaret D. Mathews, Esquire. Respondent filed Exceptions to the Recommended Order and Supplemental Exceptions to the Recommended Order. Petitioner filed a Response to the Respondent's Exceptions. Upon review of the Recommended Order, the arguments, and the complete record in this case, the Board makes the following determinations, findings, and conclusions.
The Issue Whether the subject assessment of taxes, interest and penalties should be upheld.
Findings Of Fact By "Notice of Assessment and Jeopardy Findings" dated July 31, 1989, Respondent assessed Petitioner with taxes, interest, and penalties in the total amount, as of the date of the notice, of $161,724.75. This assessment was made pursuant to Section 212.0505, Florida Statutes, following an incident on February 4, 1988. The parties stipulated that this assessment was properly issued, that notice thereof was properly given to Gary Wayne Chitty, and that the mathematical calculations contained therein are accurate and correct. The following findings are made as to Petitioner, Gary Wayne Chitty, pursuant to the stipulation of the parties. His full name is Gary Wayne Chitty. His social security number is 261-17-0682. His date of birth is April 27, 1953. His present residence is 6840 S.W. 12th Street, Miami, Florida. He has never declared himself a citizen of any country other than the United States. On, or before, February 1988, he knew Rafael Silvio Pena. On February 4, 1988, he held a valid multi-engine pilot's license which was issued to him by the Federal Aviation Authority. On, or about February 4, 1988, he and Rafael Silvio Pena boarded and flew an aircraft designated N6726L. He and Mr. Pena planned to fly a multi-engine aircraft (N6726L) from a point outside of the United States and to enter the airspace of the United States near Cedar Key, Florida and travel within the airspace of Florida to Marathon, Florida. He filed, or caused to be filed, a flight plan for said trip with Mr. Pena in advance of the trip. He loaded or caused to be loaded marijuana on the aircraft (N6726L) prior to its departure. On, or about, February 4, 1988, he and Mr. Pena flew said airplane (N6726L) from a point in the vicinity of Cedar Key, Florida, to Marathon, Florida. During said flight, the aircraft made no other landings. During the entire flight on February 4, 1988, he and Mr. Pena were the sole occupants of said aircraft. During said flight he was the pilot of N6726L. He flew this aircraft on February 4, 1988 with the full knowledge and/or consent of the airplane's owners and/or official lessees. When he took off from the aircraft's departure point on February 4, 1988, it was loaded with a large quantity of marijuana. When he took control of said aircraft and took off, he knew it was loaded with said marijuana. He discussed his plans to transport the marijuana with Mr. Pena. When he took control of the aircraft, the aircraft (N6726L) contained nineteen (19) bales of marijuana which weighted six hundred ninety-nine (699) pounds. He and Mr. Pena flew this airplane along a course towards Marathon, Florida in a manner which took it over or near Lake Okeechobee, Florida. At a point along his route, he and/or Mr. Pena caused the bales of marijuana to be jettisoned from the aircraft. The marijuana was jettisoned as part of a conscious plan or design. The marijuana that was jettisoned from N6726L during its flight on February 4, 1988, weighed a total of 699 pounds. He did not know that during this flight of February 4, 1988, his aircraft was being observed by law enforcement officers. As part of his original plan, he piloted this aircraft to Marathon, Florida, where he landed. AA. During this entire flight the aircraft performed adequately and experienced no mech- anical difficulties. BB. Upon his landing at Marathon, he and Mr. Pena were arrested. CC. He knew the estimated retail value of the marijuana on board his aircraft (N6726L) was $600 per pound.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the subject Jeopardy Findings and Assessment. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1991. COPIES FURNISHED: James McAuley, Esquire Mark Aliff, Esquire Assistant Attorneys General Department of Revenue Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Mel Black, Esquire 2937 S.W. 27th Avenue Miami, Florida 33133 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahasseee, Florida 32399-0100 William D. Moore General Counsel 203 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue for determination in this proceeding is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact The U.S. Government owns Cape Canaveral Air Force Station in Cape Canaveral, Florida. The Air Force Station covers approximately 60 to 89 square miles. Respondent provides launch base support services to the U.S. Air Force at Cape Canaveral. Respondent employs approximately 1,800 people at Cape Canaveral. The Air Force requires security clearances and Space Human Assurance and Reliability Program ("SHARP") certification for 80 to 90 percent of Respondent's employees. Security clearances for employees at the Air Force Station are determined by the Defense Investigative Services, United States Department of Defense. SHARP certifications are determined by an independent board based on Air Force Regulations and investigations conducted by federal government investigators. After supplying applications for security clearance and SHARP certification, Respondent has no role in the investigation and ultimate determination regarding clearance and certification for new employees. Respondent does not review applications for either a security clearance or certification. Members of the SHARP Board are not Respondent's employees, are appointed by the Air Force Base Commander, and are otherwise independent of Respondent. An employee awaiting security clearance and certification must be escorted by an individual with escort authority when the new employee is in an area requiring either security clearance or certification. Escort authority and access entry are determined by the Air Force. Authority to assign and approve an escort for a new employee awaiting security clearance and certification is limited to one or two individuals at each work location. Respondent terminates any new employee who fails to obtain required security clearance and certification within 12 months of the date of hire. Such an employee is retained during the pendency of his or her appeal, if any. Respondent's policy serves a legitimate interest. The policy is designed to limit the additional cost in manpower, time, and resources required to escort new employees within the launch base support project who have no security clearance or certification. Respondent's policy is consistently and fairly applied. On October 2, 1989, Petitioner was employed as a structural painter by Respondent on Respondent's launch base support project at Cape Canaveral. Petitioner was employed subject to the condition that he obtain all security clearances and certifications required by the Air Force. Petitioner's application for certification was denied. Petitioner appealed to the SHARP Board and attended an appeal hearing on October 10, 1990. The SHARP Board denied Petitioner's appeal and informed Petitioner of its decision at the appeals hearing. Respondent was not notified by the SHARP Board or the Air Force of the reason for the denial. Mr. Everett Watson, Respondent's Facility Security Manager, was notified by the Air Force sometime after October 22, 1990, that Respondent's SHARP certification had been denied. Mr. H.D. Stanfill, Petitioner's Department Manager, and Mr. Ron Smith, Petitioner's Supervisor, received notice of the denial on November 2, 1990. Mr. Stanfill and Mr. Smith terminated Petitioner in accordance with Respondent's policy. By letter dated November 13, 1990, Petitioner was notified of his termination effective November 30, 1990. The termination was based solely on Petitioner's failure to obtain his SHARP certification within 12 months of his date of hire. Petitioner was not considered for any other positions on the launch base support project. All painter positions require SHARP certification. Other available positions for which Petitioner was qualified require SHARP certification. Petitioner neither applied for nor requested any other position on the launch base support project. Petitioner is an alcoholic. Petitioner was diagnosed in 1986 as suffering from alcoholism and drug abuse. Petitioner's alcoholism is the only handicap at issue in this proceeding. Petitioner was in an alcohol rehabilitation program prior to his employment by Respondent. Petitioner did not disclose his alcoholism to Respondent at the time of employment. In response to a specific question on his job application, Respondent stated that he had no physical or mental disabilities which would require special accommodations to permit him to perform the type of work for which he was applying. Petitioner did not consider himself handicapped at the time he applied for employment. Petitioner has a history of arrests and criminal charges. Petitioner was twice arrested for driving under the influence ("DUI") before his employment with Respondent. Petitioner had also been arrested for other offenses including assault and trespass. Petitioner was arrested for a third DUI offense in September, 1990, after his SHARP certification had been rejected but before the final appeal hearing on October 10, 1990. Petitioner enrolled in an employee assistance program ("EAP") after his SHARP certification was denied but before his appeal hearing. Petitioner was not referred to the EAP by his supervisor or anyone employed by Respondent. Respondent did not know Petitioner was in an EAP until after Petitioner was terminated. Petitioner enrolled in the Sunrise Substance Abuse Program at Wuesthoff Hospital. Petitioner was referred to the treatment program by his EAP counselor. Pursuant to EAP policy, Respondent was not notified that Petitioner had enrolled in either the EAP or treatment program. After his arrest for DUI in September, 1990, and before his appeal hearing for his SHARP certification, Petitioner requested transfer to Respondent's project on Kwajalein Atoll in the Republic of the Marshall Islands. Kwajalein is self- contained. It has its own project manager, its own personnel office in Huntsville, Alabama, and offices in Kwajalein. Final approval of transfers to Kwajalein are made in Huntsville. Kwajalein Atoll is a remote island more than 2,000 miles from Honolulu, Hawaii. Housing is available in the form of communal barracks. Medical facilities are limited. Prospective employees with a history of alcohol abuse must document two years of abstinence before they will be considered for Kwajalein. Respondent's policy and procedures required the request for transfer to be approved by Petitioner's department manager. Mr. Stanfill was new to the department at the time of the request. Mr. Stanfill did not know Petitioner personally. Mr. Stanfill discussed the transfer with Petitioner's supervisor. Mr. Stanfill refused to approve the transfer. Mr. Stanfill based his decision on information gained from Petitioner's supervisor and Mr. Stanfill's own military experience in remote locations similar to Kwajalein. Mr. Stanfill has received transfer requests in addition to Petitioner's. Mr. Stanfill has refused to approve transfers in cases other than Petitioner's. Other employees have been terminated for failure to receive security clearances. At least two employees, in addition to Petitioner, have initially failed to obtain SHARP certification. Like Petitioner, both of the employees were retained through the SHARP appeal process. One employee was terminated after he failed to obtain his SHARP certification following his appeal. The other employee was retained because he was granted SHARP certification after his appeal. Petitioner completed the Sunrise Substance Abuse Program in February, 1991. In early 1993, Petitioner was arrested for DUI. Petitioner is not currently in a rehabilitation program. SHARP policy requires that an individual who has a history of alcohol abuse or alcohol related incidents following a rehabilitation program to successfully complete a rehabilitation program and abstain from alcohol abuse for two years. Respondent's policy does not permit the retention of uncertified employees for two years.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enter a Final Order finding that Respondent committed no unlawful employment practice and denying the remedies requested by Petitioner. RECOMMENDED this 27th day of July, 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5925 Petitioner's Proposed Findings Of Fact. Petitioner submitted no proposed findings of fact. Respondents' Proposed Findings Of Fact. All of Respondent's proposed findings of fact are accepted except proposed findings that Respondent did not know of Petitioner's handicap at the time of the request for transfer and at the time of the termination. COPIES FURNISHED: Ronald M. McElrath Executive Director Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry Clerk Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Carol B. Bess, Esquire Cullimore & Bess 3815 North U.S. 1, Suite 106 Cocoa, Florida 32926 Dorothy F. Green, Esquire James G. Brown, Esquire Richeson & Brown, P.A. 135 North Magnolia Avenue Orlando, Florida 32802
Findings Of Fact On November 15, 1982, Petitioner applied to Respondent to take the January 31, 1983, pilot's examination for the Port of Miami. Prior to that time, Petitioner had served as an apprentice pilot in the Port of Miami from January 1, 1967, through January 1, 1971. Petitioner was terminated from his position as an apprentice pilot with the Port of Miami in 1971, and has not piloted any ships in the Port of Miami or any other port in the state since that time. At the time of his application to take the pilot's examination, Petitioner was over 18 years of age, had been awarded a high school diploma, and was in good physical and mental health. Petitioner had also obtained a valid first class unlimited pilot's license issued by the United States Coast Guard in 1971. In addition to Petitioner, three other persons, William A. Arata, Stephen E. Nadeau, and Robert K. Brownell, also applied to take the January 31, 1983, pilot's examination for the Port of Miami. Arata submitted his application to sit for the examination on November 19, 1982. At that time, Arata had been licensed as a deputy pilot for the Port of Miami since January 28, 1980. In addition, he possessed an unlimited first class pilot'S license for the Port of Miami and had successfully completed the deputy pilot training program for that port. On November 24, 1982, Nadeau submitted his application to sit for the January 31, 1983, pilot's examination. Nadeau had been licensed as a deputy pilot in the Port of Miami since July 23, 1980, possessed an unlimited first class pilot's license for the Port of Miami, and had successfully completed the Port of Miami deputy pilot training program. Brownell applied on November 29, 1982, to sit for the same pilot's examination. At that time, Brownell had been licensed as a deputy pilot for the Port of Miami since July 31, 1980, also possessed an unlimited first class pilot's license for the Port of Miami, and had successfully completed the Port of Miami deputy pilot training program. In accordance with the provisions of Section 310.071, Florida Statutes, the applications of Petitioner, Arata, Nadeau, and Brownell were submitted to the Department of Professional Regulation which, in turn, submitted those applications to Respondent for a determination of eligibility to sit for the licensing examination. Respondent ultimately determined and advised the Department of Professional Regulation that all four applicants were qualified to sit for the licensing examination. All four applicants took the examination on January 31, 1983, and each of them received a passing grade. In accordance with Rule 21-8.09, Florida Administrative Code, the Department of Professional Regulation ranked the grades received by the applicants from highest to lowest. Petitioner received the lowest grade of the four applicants. Accordingly, since Respondent had certified three openings to be filled for licensed state pilots in the Port of Miami, the Department of Professional Regulation, act some time between February 1, 1983, and May 6, 1983, issued state pilot licenses for the Port of Miami to Captains Arata, Nadeau, and Brownell. There is in force in the Port of Miami a Deputy Pilot Training Program which has been approved by Respondent. The minimum time required for completion of the program, which is a prerequisite for applying for a state pilot's license, is two years. One of the requirements of the program is that participants obtain a first class unlimited pilot's license from the United States Coast Guard. This license allows the holder to pilot coastwise vessels which sail under the American flag. A state pilot's license standing alone permits the holder only to pilot ships sailing under foreign flags. In order to acquire a first class unlimited pilot's license, an applicant must possess another maritime license, such as a master's or male's license, must meet age and sea experience requirements, and must pass an examination prepared and administered by the United States Coast Guard. In addition, a condition to obtaining a first class unlimited pilot's license is that the applicant must possess a radar observer's certificate. The Florida State Pilot's Association, Inc., is a nonprofit corporation composed of 59 licensed state pilots from every port in Florida with the exception of Jacksonville and Fort Pierce. Captains Arata, Nadeau, and Brornell are members of that organization. The purpose of the organization is to represent the interests of its members at local, state, and federal levels.
Findings Of Fact The Petitioner, the State of Florida, Department of Professional Regulation, filed an Administrative Complaint in prosecution of a probable cause finding by the Board of Pilot Commissioners, an agency of the State of Florida charged with regulating entry into the profession of harbor piloting and enforcing the practice standards for that profession for those already licensed. The Respondent at all times material hereto, was admitted as a licensed pilot in the State of Florida, having been issued license number 0000033. The Respondent resides in Jacksonville, Florida and practices his profession by piloting vessels in and out of the port of Jacksonville. On February 26, 1987, the motor vessel, Fernpasset, was approaching the port of Jacksonville for the purpose of discharging a load of Volkswagon automobiles. The Fernpasset is a Liberian registered car carrier having a gross tonnage of 9841 tons, a length of 536 feet, with an 89.5 foot beam. The vessel is somewhat unique in that it has a very large "sail area" or wind-affected profile as a necessary part of its structure, which extends approximately ninety percent of the vessel's total length and at a height of approximately sixty feet above the water line. This represents a much larger wind-affected profile for this vessel, as compared to more conventional cargo ships. The Jacksonville Harbor is reached by navigation of the St. Johns River channel inland from the Atlantic Ocean. At the point where the river and river channel reaches the Atlantic Ocean are two jetties, composed of granite rocks, serving as a breakwater at the entrance to the harbor. The harbor entrance has a north jetty and a south jetty. The north jetty projects waterward from the land for approximately 2,400 yards. The south jetty projects out into the water approximately 1,400 yards. Buoy number seven in the St. Johns River channel is located nine hundred yards inside the jetties. At approximately 1800 hours on February 26, 1987, the Fernpasset commenced preparation for entering the port of Jacksonville. The chief mate made VHF radio contact with the Jacksonville pilot station at about this time and gave the dispatcher at the pilot station, at his request, his estimated time of arrival at the sea buoy, his deep draft, approximately twenty-two to twenty- four feet, and what the weather conditions were at sea. During the initial radio contact between the Fernpasset and the pilot dispatcher, Errol M. Hatton, at approximately 1815 hours, the dispatcher asked First Officer (Chief Mate) Oleson whether he wanted to pick the pilot up inside the jetties or at the sea buoy. He replied that it would pick up the pilot inside the jetties. The vessel's master, Ole Brakstaad, agreed to that procedure. After this initial contact, and after the arrangement with the Fernpasset was made that it would pick the pilot up inside the jetties, the dispatcher called the Respondent, Captain Register and informed him of the job and the boarding arrangement. Prior to the Fernpasset arriving in the port area, the Jacksonville area had experienced moderate to severe weather from the northeast with "northeasters" blowing for approximately a week, with choppy and rough seas. Indeed, the official log of the M/V Fernpasset reveals that wind conditions on February 26, 1987, while at sea, varied from wind force four through wind force six and seas varied from sea scale four through sea scale five. Just two hours before the initial radio contact with the pilot station, at approximately 1600 hours, the Fernpasset was experiencing winds from the Northeast at force five, gusting at six. The sea had a heavy swell running at that time. Wind force six is approximately twenty-two to twenty-seven nautical miles per hour. Sea scale five consists of waves running eight to twelve feet high. See Respondent's exhibit two, (Brakstaad's Deposition). After Captain Register arrived at the pilot's station, the dispatcher, Mr. Hatton, spoke with the vessel approximately two more times, checking on its estimated time of arrival and having the vessel confirm that it would pick up the pilot inside the jetties. This arrangement had already been made before Captain Register had been called at his home by the dispatcher and told to report for duty to pilot the Fernpasset into the harbor. Captain Register did not participate in the conversation that set up this arrangement because he was at home and not on duty at the time. The evidence does not reflect that this choice was anything but freely made by the master of the Fernpasset and it does not indicate that Captain Register had any reason to believe that the master of the vessel had not freely chosen to pick up the pilot inside the breakwater, especially in view of the fact that inclement weather conditions were prevailing, with the attendant danger involved in boarding a pilot in heavy seas. In any event, the master of the vessel, Captain Ole Brakstaad, commenced conning his vessel into the entrance to the St. Johns River. He used his radar and the navigational markers to line up the vessel to transit between the north and south jetties. The vessel's master had assumed control of the vessel's movement from the Chief Mate at approximately 1900 hours. At approximately 1943 hours, the vessel passed the sea buoy preparing to enter the entrance channel to the river. At 1944 hours, several rudder commands were given to the helmsman and the vessel "steadied up" on course 278 degrees, lined up to enter the channel. At about this time, the winds had shifted to north- northeast at approximately 16 knots. As the vessel entered the channel, the master and the chief mate were unable to see the range lights. At 1946 hours, the master ordered a slow ahead "bell" to reduce the ship's speed to 10 knots for transiting the channel. The range lights were still not visible to the master or chief mate. As the vessel passed buoys three and four, it was centered in the channel. The wind speed increased to approximately eighteen knots from the northeast. In order to counteract the effect of the wind and strong current, which was in a southerly direction, the master ordered the helmsman to come to starboard to course 283 degrees, in order to remain centered in the channel. The master determined that the vessel was being "set" to the south by the combined forces of the northeast wind and the southerly current and therefore had to steer further north to compensate for the set. He ordered courses of 285 degrees, 290 degrees and finally 295 degrees. At 1953 hours, he increased the vessel's speed from slow ahead to half speed ahead to provide for greater maneuverability. At approximately 1954 hours, he ordered full speed ahead, with an emergency bell, to the engineer after realizing that his ship was sideways in the channel and still being set to the south. At 1955 hours, however, the Fernpasset grounded on her port side on the St. Johns River entrance channel south jetty. Before he could contact the pilot, however, he received a call from the pilot boat stating that the Captain should proceed into the channel at a speed of 10 knots. The master informed the pilot that his vessel had run aground and that he needed tug assistance. At approximately 2015 hours, Captain Register boarded the grounded vessel. Captain Register was only able to board the vessel after great difficulty because of the rough weather. After he got aboard, he assisted in towing the vessel off the breakwater and out to sea and in assessing damages. The practice of boarding a pilot requires the vessel being boarded to slow down and make a "lee" or sheltered area on one side of the vessel, sheltered from winds and waves, to help the pilot boat approach and place the pilot aboard the ship. The pilot boat is a fifty-two foot boat, specially designed, with a platform over the deckhouse or cabin upon which the pilot stands in order to catch a rope ladder thrown over the side of the ship to be boarded. The ladder must be caught on the up-roll of the pilot boat so as to avoid the pilot's being crushed between the pilot boat and the side of the ship while he is on the rope ladder. Boarding a pilot is dangerous under any circumstances, and especially so during heavy, severe weather. Weather conditions off the mouth of the St. Johns River are usually much worse as to the wind and rough waves than inside the jetties. Captain Elija Guillory is a shipmaster who has an unlimited Master's License for any type of vessel. He has been a master mariner for twenty-five years. He is currently the master of the tanker, Neches. He has entered and exited the port of Jacksonville many times. In fact, he enters the Jacksonville port approximately one and one-half times per month on trips between Houston and Corpus Christi, Texas and Jacksonville. He is also a licensed pilot for the port of Houston, Texas. Captain Guillory was accepted as an expert in shipmaster's duties and practices. Captain Guillory's testimony establishes that the master of a vessel always makes the final decision about when and where to pick up a pilot. He is the person best able to, and responsible for, determining the safety of a given situation, both as to his vessel and the pilot's safety. Captain Guillory testified that, if it be assumed that a northeast wind of Beaufort force five or six, with a heavy swell, was operating that it would be a "borderline situation" as to the safety of picking up a pilot outside the jetties under those conditions. He testified that it would depend on the characteristics of the vessel and circumstances aboard the vessel. On his own ship, which has about thirty-five feet of free-board, (less area exposed to the northeast wind), he felt he would be able to have boarded the pilot outside. A car carrier, however, has a large "sail area" of approximately sixty feet above the water line extending approximately ninety percent of the length of the vessel. This might have made it risky to slow or stop a ship with that much sail area, with a strong wind blowing, in order to pick up a pilot outside the jetties in view of the southerly set caused by both the wind and current. Captain Guillory established that it is regular practice for him and other shipmasters to tell the pilot where he will pick the pilot up during episodes of rough weather. In nice weather, he gives the pilots a choice about where they are to be picked up. He established that that is the standard practice between shipmasters and pilots for East coast United States ports. Finally, Captain Guillory opined that the Captain of the vessel should not have decided to enter the port without a pilot. In any event, it is the practice of master mariners to make the decision at sea, before entering the port, as to the safety of the vessel, the crew and the boarding pilots. It is customary and common for the master to make a decision that, due to bad weather conditions, he will pick the pilot up inside the jetties at the port of Jacksonville. This is decided after the master has made an independent evaluation of all the safety factors to consider. Although the United States Coast Pilot, volume four, states that the pilot boarding area for Jacksonville is between the sea buoy and the outermost entrance channel buoy, this is merely a guide for optimum conditions. Pilots are normally and customarily boarded where ever the master feels it is safe to do so under then-prevailing conditions. In this instance, the master of the vessel made the final decision as to where to board the pilot. That decision was made before the pilot had been informed that the vessel to which he was assigned was approaching the sea buoy and that it was time for him to go on duty and prepare to board the vessel. He did not participate in the decision about picking up the pilot inside the jetties.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that the Administrative Complaint against the Respondent, Captain Clifton A. Register, should be dismissed in its entirety. DONE AND ORDERED this 9th day of December, 1988, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of December, 1988. APPENDIX PETITIONER'S PROPOSED FINDINGS OF FACT: Accepted Accepted Accepted Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Reject as subordinate to the hearing officer's findings of fact on this subject matter. Accepted in part, but not as dispositive of any material issue presented. Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Accepted, but not in and of itself dispositive of any material issues presented. Accepted, but not in and of itself dispositive of any material issues presented. Accepted. Rejected as not supported by the evidence of record, with the exception of the similarity consisting of the sea buoy being one and one-half miles from the entrance to the port between two rock jetties or breakwaters, which is not in and of itself dispositive of any material issues presented. Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Even if Port Everglades was a port of essentially the same configuration as the Port of Jacksonville, which the record does not establish, the weather and sea conditions and condition and configuration of the vessel involved at the particular day and time in question has a great deal to do with consideration of what safe piloting practices are for such conditions. Rejected as subordinate to the hearing officer's findings of fact on this subject matter and as having little or no weight in finding facts and concluding the law applicable to this case, because of the subjective circumstances involved in deciding whether safe piloting practices have been observed, as delineated above. RESPONDENT'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 (904) 488-0062 Gary A. Bubb, Esquire Toole, Bubb, & Beale, P.A. 25th Floor Southern Bell Tower Post Office Box 1500 Jacksonville, Florida 32201 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Louella Cook, Executive Director Board of Pilot Commissioners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent, Department of Transportation’s (“DOT”), notice of intent to award a contract to Intervenor, Blue Ray’z Heating and Air Conditioning, LLC (“Blue”), for maintenance, repair, installation, and replacement of heating, ventilation, and air conditioning (“HVAC”) equipment and components located at various facilities along Florida’s Turnpike System, is contrary to DOT’s governing statutes, rules, or the bid specifications, and contrary to competition, clearly erroneous, or arbitrary and capricious.
Findings Of Fact DOT is an agency of the state of Florida tasked with procuring the construction of all roads designated as part of the State Highway System, the State Park Road System, or any roads placed under DOT’s supervision by law. On March 10, 2017, DOT published its bid solicitation for ITB-DOT-16/17-8017-AC (the “ITB”), seeking bids from contractors for maintenance, repair, installation, and replacement of HVAC equipment and components at various facilities along Florida’s Turnpike (SR 91) milepost 172.0 to milepost 312.0; Southern Connector (SR 417) milepost 0.0 to milepost 6.5; Beachline Expressway (SR 528) milepost 0.0 to milepost 8.4; Seminole Expressway (SR 417) milepost 37.7 to milepost 55.0; and Daniel Webster Western Beltway (SR 429) milepost 0.9 to milepost 11.0. The scope of work of the ITB requires all labor, materials, and incidentals necessary to provide maintenance and repair of 232 HVAC units located at 65 facilities along Florida’s Turnpike System. The contract is for one year, with three one- year renewal periods. The 65 facilities span the distance from Wildwood in the north at milepost 304 to past Yeehaw Junction in the south to milepost 172, and from a westernmost point on State Road 429 at milepost 11 (Orlando area) to the easternmost section of State Road 417. Under the ITB, the vendor is required to conduct bimonthly preventative maintenance services on each HVAC unit; a total of five visits per site, per year. The vendor is also required during the first month of the contract and any subsequent annual renewal periods to conduct one annual preventative maintenance service. The annual maintenance is typically more extensive than the 60-day maintenance. However, the bi-monthly and annual maintenance services require, on average, 30 minutes for each of the 232 HVAC units. The vendor is also required to provide unscheduled, emergency services to diagnose problems and make necessary repairs of units that are not operating properly. An unscheduled repair could take several hours to complete, and there have been occasions where more than one unit needed a repair at the same time. The vendor must be available 24 hours a day, seven days a week, 52 weeks a year, to provide unscheduled, emergency services. Most air conditioning work is treated as an emergency, which requires the vendor to respond within three hours. The ITB includes specifications, schedules, a list of facilities, and other materials. Section 9.1 of the ITB requires bidders to meet certain minimum qualifications, including demonstrating the experience necessary to satisfactorily perform the services within the scope of work. Of particular relevance to the instant case is the following language on page 12 of the ITB: Certification of Experience The organized business enterprise (e.g. corporation, LLC or sole proprietorship) shall have been licensed and actively involved in the type of business requested for a minimum of three (3) years. Prior experience shall specifically be related to HVAC maintenance, repair, installation and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the Scope of Work for this Contract. Submit documentation of the work experience with the bid package. Pursuant to section 9.2, “[f]ailure by the bidder to provide the above item(s) will constitute a non-responsive determination. Bids found to be non-responsive will not be considered.” The Certification of Experience requirement is also referenced on page 2 of the ITB, followed by this statement: “The Department will review carefully to determine if the Vendor is responsive, responsible and qualified in the area of work contemplated by this Contract.” A two-page “Certification of Experience Documentation” form is located on pages 23 and 24 of the ITB. The form reiterates, in pertinent part: Prior experience shall specifically be related to the technical scope and volume of work to that specified in the scope of work for this Contract. Submit documentation of the work experience with the bid package. The Department will review carefully to determine if the Vendor(s) is responsive, responsible and qualified in the area of work contemplated by this Contract. Describe your work experience in detail for the minimum period required, beginning with your current or most recent project. Use a separate block to describe each project. (Print out additional copies of the form or attach additional sheets as necessary.) The form includes many lines, spaces, and separate blocks for bidders to provide the client names, addresses, and telephone numbers; dates of service; dollar value of each project; client project manager for each project; and a description of each project. The form includes enough lines and spaces for bidders to provide the required information for up to seven clients. The bidders are directed to attach additional sheets as necessary. The deadline for submission of bids was Tuesday, April 4, 2017, at 2:30 p.m. On April 4, 2017, DOT received and opened bids from four vendors in response to the ITB, which revealed the following bid tabulation prices: (1) All Seasons ($158,446.00); (2) Blue ($128,630.00); (3) Kenyon & Partners, LLC ($279,183.00); and (4) Florida Drawbridges, Inc. ($331,183.00). On April 4, 2017, DOT posted a notice of intent to award the contract for the work described in the ITB to Blue. Notwithstanding the requirement for each bidder to demonstrate prior experience “specifically . . . related to HVAC maintenance, repair, installation and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the Scope of Work for this Contract,” Blue failed to demonstrate such experience in the Certification of Experience Documentation form. The first client listed on Blue’s Certification of Experience Documentation form is the Florida Department of Juvenile Justice (“DJJ”). With regard to this client, Blue indicated service dates of June 2015 to present and a project dollar value of $5,000.00 per year. As to the project description, Blue stated: “Provide HVAC Maintenance, Repair & Service @ Orange Regional Juvenile Detention Center.” At hearing, Mr. Davis, the sole owner and operator of Blue, conceded the work involved a total of only 12 HVAC units, in two DJJ buildings, and at the same location. The second client listed is Florida Environmental Compliance Corp. (“FECC”). With regard to this client, Blue indicated service dates of 2012 to present and no dollar value for the project was provided. As to the project description, Blue stated: “HVAC Maintenance, Repair & Service. Installation.” At hearing, Mr. Davis conceded the work for FECC involved a total of only eight HVAC units at two locations (Polk County–two units, and Orlando-six units). The third client listed is DOT. With regard to this client, Blue indicated service dates of July through August 2015, and the dollar value of the project was $21,300.00. As to the project description, Blue stated: “Installation of Recorder Room Ductless split system.” At hearing, Mr. Davis conceded the work for DOT involved the installation of only three HVAC units in three locations at a cost of $7,100.00 each. The fourth client listed is CVS. With regard to this client, Blue indicated service dates of July through August 2014, and the dollar value of the project was $17,000.00. As to the project description, Blue stated: “Installation of Mini split system in CVS store clinics.” At hearing, Mr. Davis conceded the work for CVS involved the installation of only two HVAC units at one store location.2/ DOT did not review Blue’s Certification of Experience Documentation form to determine whether Blue demonstrated the necessary qualifications and experience required by the ITB. At hearing, none of the witnesses presented by DOT could testify as to Blue’s demonstration of prior experience, specifically related to HVAC maintenance, repair, installation, and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the scope of work. Leonard Robinson, a contract manager for Jacobs Engineering, the consultant for the project, testified he was involved only “to a very small extent” in the review of Blue’s bid. Mr. Robinson testified that “the only thing I had to do was to award the bid per the lowest bidder as written in the contract and state the reason why I’m doing so and also sign the Conflict of Interest form. That is it.” Mr. Robinson did not review Blue’s qualifications or past experience, and he could not say that Blue could perform the work described in the ITB. Alan Chua is the capital improvement procurement administrator for Jacobs Engineering. Mr. Chua evaluated Blue’s bid to determine whether it corresponded to the engineer’s estimate. He testified he reviewed the Certification of Experience Documentation form, but only as to the dates and to the limited extent necessary to determine whether the projects listed by Blue satisfied the three years of experience required by the contract. Mr. Chua conceded he did not review the project descriptions for the four referenced clients identified on the form, and he could not say whether any of the four projects identified on the form were similar in volume or technical scope to that specified in the ITB. Trisa Thomas is a contracts development manager for Jacobs Engineering. Ms. Thomas testified she reviewed the Certification Experience Documentation form. Ms. Thomas testified she reviewed the dates to determine whether the projects listed by Blue satisfied the three years or more of experience required by the contract. She further testified she reviewed the dates, project manager, and project descriptions. As to the project descriptions, Ms. Thomas testified she reviewed the type of work Blue did for the company to see if it was related to the work specified in the ITB. However, she did not consider the volume of Blue’s work. Significantly, Ms. Thomas testified: Q: Okay. All right. Do you know why the dollar value of the project is on the Certification of Experience Documentation? A: Just to get an idea what they--how much they probably performed. Q: So would that help you get an idea of the volume of work that they performed for that client? A: I’m not even really sure if that played a factor. Q: And when you say, I’m not sure if that played a factor, what--what are you referring to? A: Well I guess what I’m saying is, I’m-- that’s really not where my concentration is. I’m looking at the years, the project description, what they--the type of work they performed for the--for that agency, and if the references are credible or, you know, satisfactory. Q: Okay. And when you say they’re satisfactory, what do you look at to determine if they’re satisfactory? A: Based on the service that they provided to them, the vendor will let us know how pleased they were with the work that they provided to their agency. Q: All right. Looking at this Joint Exhibit 5, pages 5 and 6, which places did Blue Ray’z perform HVAC maintenance, repair, installation and repair services that were of the same technical scope as the Invitation to Bid? A: I see on the Certification of Experience where they provided HVAC repair and service installation. Also I see where they provided installation of a recorder room. But the volume, there’s--I don’t--I wouldn’t be able to determine that. Q: And let me ask my question again. So which places did Blue Ray’z perform HVAC maintenance, repair, installation and replacement services that were of the similar technical scope? A: I don’t know. Q: What maintenance, repair and installation or replacement services did Blue Ray’z provide to another vendor that was similar to the volume of work specified in the Invitation to Bid? A: The volume work? I don’t know. Q: Do you know if the bid by Blue Ray’z was reviewed by anybody to determine if the experience was similar in size, technical scope and volume of work specified in the Scope of Work? A: I don’t know. Tr., Vol. I, pp. 121-123. Santiago Alvarez is the facilities and telecommunications administrator for the Turnpike Enterprise, which is part of DOT. Mr. Alvarez testified he did not review the Certification of Experience Documentation form in any detail. He just looked to confirm the documents were included in the bid package. Sheree Merting is the contract services administrator for DOT’s Turnpike Enterprise. Ms. Merting testified she was not involved in the evaluation of Blue’s bid. Amanda Cruz is a contract analyst for DOT. She did not review Blue’s bid to determine whether Blue was qualified by having the experience required by the ITB. DOT established specific requirements for the ITB to determine responsiveness and then failed to determine if Blue had prior work experience specifically related to HVAC maintenance, repair, installation, and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the scope of work. DOT awarded the bid to Blue because it was the lowest bidder, without considering whether Blue demonstrated prior experience specifically related to HVAC maintenance, repair, installation, and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the scope of work. DOT awarded the bid to Blue because it was the lowest bidder, even though Blue failed to demonstrate in the Certification of Experience Documentation form that it had prior experience specifically related to HVAC maintenance, repair, installation, and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the scope of work. In sum, Blue is not a responsive and responsible vendor, and DOT’s proposed action is contrary to the bid specifications, clearly erroneous, contrary to competition, arbitrary and capricious.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Transportation, enter a final order rescinding the proposed award to Intervenor, Blue Ray’z Heating and Air Conditioning, LLC. DONE AND ENTERED this 28th day of August, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2017.
Findings Of Fact At all times relevant hereto, respondent, Raymond T. Grady, Jr., held registered specialty contractor license number RX DO32138 issued by petitioner, Department of Profession Regulation, Florida Construction Industry Licensing Board. 1/ According to the official records of petitioner, Grady was first licensed in 1977. He later qualified F & L Contracting, Inc., a contracting company doing business in Palm Bay, Florida, in February, 1982. The 1983 annual report filed by F & L Contracting, Inc., with the Department of State reflected that Grady was secretary-treasurer and resident agent of the corporation while a Fred James Henderson served as president. Grady continued to qualify F & L Contracting, Inc. until February 27, 1984, when he notified petitioner that he was no longer its qualifying agent. Presently, his license is on an inactive status. Fred James Henderson did business under the name of F & L Contracting, Inc., F & L Contractors, Inc. and F & L Construction, Inc. All had the same street address and telephone number and were the same for all practical purposes. Only F & L Contracting, Inc. was qualified by Grady with the State. On or about August 25, 1983, Lyman and Dawn Crowshaw of 356 Holiday Park, Palm Bay Florida, entered into a contract with F & L Contractors, Inc., to have a utility room added to their residence for a price of $5,835. The contract was negotiated by Henderson. When the contract was signed, Henderson gave the Crowshaws his business card which reflected the name "F & L Contracting, Inc.," and had the same telephone number and address as F & L Contractors, Inc. Under the agreement, Lyman Crowshaw gave F & L Contractors, Inc. a check in the amount of $1,945 as the first of three payments for the work. The check was deposited into the bank account of F & L Contracting, Inc., the company which Grady had qualified. Because Henderson held no license from the State, he could not pull job permits in the City of Palm Bay. Therefore, it was necessary for Grady to sign all applications and pick up the permits on behalf of Henderson. In this regard, the city building officials perceived Grady to be the individual who qualified Henderson to do business as a contractor. For this reason, the official notified Grady that no permit could be pulled on the Crowshaw job because of a setback restriction on Crowshaw's property. When Crowshaw learned of this, he immediately requested a refund of his money, but Henderson did not oblige. After the Crowshaws sent a letter to F & L Contracting, Inc. on November 18, 1983 demanding payment, and their attorney did the same on January 4, 1984, Henderson and his wife finally executed a promissory note on January 11, 1984 promising to pay the Crowshaws $500 per month plus 18 percent interest until the $1,945 was repaid. Henderson signed the note individually and as president of F & L Contractors, Inc. Mr. Crowshaw received one $500 payment on January 21, 1984 from Henderson. After he received no other payments, Crowshaw filed a complaint against Grady in an effort to recover his money. That prompted the instant proceeding. The Crowshaws and Grady had never seen each other prior to the final hearing. The Crowshaws did have two telephone conversations with someone who represented himself to be Grady in late 1983 and early 1984, and in those conversations, Grady assured them that he would get Henderson to repay the money owed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 489.129(1)(g), Florida Statutes, and that his license be suspended for one year, unless Grady obtains a signed release from the Crowshaws indicating restitution has been made. DONE and ORDERED this 1st day of March, 1985, in Tallahassee, Florida. DOANLD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1985.
