Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner sat for the licensure examination for architects administered in June of 1994. The examination consisted of various divisions. Division A covered the subject of pre-design. The questions in this division of the examination were machine-graded, multiple choice questions. Petitioner received a failing score of 72 on Division A. Question 6 of Division A asked the examinee to identify the term used to describe the separate management units formed by ridge lines that divide the land and determine regional drainage patterns. These management units are called watersheds. Accordingly, the correct answer to Question 6 of Division A was "D." Petitioner selected "A," "swales," as his answer to the question. Swales, however, while they are used as drainage areas, are not, unlike watersheds, regional in character. Petitioner's answer to Question 6 of Division A therefore was clearly incorrect. Question 8 of Division A asked the examinee to identify which of the four drawings shown on the question sheet depicted a symmetric, hierarchal pattern of land use. The correct answer to the question was "B." Petitioner selected "C" as his answer to the question. "C," however, depicted an axial, rather than a hierarchal, pattern. Petitioner's answer to Question 8 of Division A therefore was clearly incorrect. Question 13 of Division A tested the examinee's knowledge of the impact the increase in the number of young, professional dual-income families has had on residential neighborhoods. The increase in the number of young, professional dual-income families has increased property values in older established neighborhoods, led to the building of large new suburban tracts, reduced the availability of residences that moderate income families can afford and accelerated the restoration of older neighborhoods. Accordingly, the correct answer to Question 13 of Division A was "D." Petitioner selected "B" as his answer to the question, which was clearly incorrect. Question 20 of Division A tested the examinee's knowledge of the possible components of a market study. A market study might include a windshield survey, data obtained from questionnaires and/or an analysis of competing projects. A detailed financial package, however, would not be part of a market study. Accordingly, the correct answer to Question 20 of Division A was "C." Petitioner selected "A" as his answer to the question, which was clearly incorrect. 1/ Question 28 of Division A tested the examinee's knowledge of the requirements of the national building code relating to multistory buildings. The code allows, in a multistory building, two fire exits on one corridor, fan coil units utilized in office space and a fire exit that intersects two corridors. A corridor utilized as a return-air plenum, however, is not permitted under the code. Accordingly, the correct answer to Question 28 of Division A was "C." Petitioner selected "D" as his answer to the question, which was clearly incorrect. Question 53 of Division A asked the examinee to identify the most dominant design feature of the structures depicted on the question sheet. The correct answer to Question 53 of Division A was "C," "facade rhythm." The structures depicted did not display vertical harmony inasmuch as their facades were different. Accordingly, the answer selected by Petitioner, "A," "vertical harmony," was clearly incorrect. Division E of the examination covered the subject of lateral forces. The questions in this division of the examination were machine-graded, multiple choice questions. Petitioner received a failing score of 73 on Division E. Question 14 of Division E tested the examinee's knowledge of the factors which determine the maximum lateral-load and shear capacity of a plywood roof diaphragm. These factors include nail size, nail penetration, plywood thickness and plywood species. Accordingly, the correct answer to Question 14 of Division E was "D," not "C," the answer Petitioner selected. 2/ Division H of the examination covered the subject of materials and methods. The questions in this division of the examination were machine-graded, multiple choice questions. Petitioner received a failing score of 74 on Division H. Question 21 of Division H tested the examinee's knowledge of the requirements of the model building code relating to the dimensions of a Class A interior stairway in a newly constructed multistory building serving an occupant load of 100. The correct answer to the question was "D," "60 inches." Petitioner selected "C," "48 inches," as his answer to the question. Although the Americans with Disabilities Act (ADA) requires that Class A interior stairways in multistory buildings have a minimum clear width of 48 inches between the handrails, question 21 of Division H was based upon the requirements of the model building code, not the requirements of the ADA. Accordingly, Petitioner's answer to the question was clearly incorrect. Questions 121 through 123 of Division H tested the examinee's knowledge of the components of an inverted (IRMA) roof system. There were two correct answers to Question 123, "F-9" ("membrane") and "K-7" ("vapor barrier"). Petitioner selected one of these answers, "F-9," and received credit for answering the question correctly. Each of the foregoing questions (Questions 6, 8, 13, 20, 28 and 53 of Division A, Question 14 of Division E, and Questions 21 and 123 of Division H) was clearly and unambiguously worded, provided sufficient information to select a correct response and required the application of knowledge that a qualified candidate for licensure as a registered architect should possess.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Architecture enter a final order rejecting Petitioner's challenge to the failing scores he received on Divisions A, E and H of the licensure examination for architects administered in June of 1994. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of April, 1995. STUART M. LERNER 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 19th day of April, 1995.
Findings Of Fact Respondent provides services to the residents of Immokalee from office space which it is currently leasing from Sunburst. The lease of the present facilities expires on August 31, 1985. DHRS is in need of more office space than it currently fills in order to meet the growing demand for its services in the Immokalee area. Therefore, DHRS issued an invitation to bid, inviting interested persons to submit bids for its required office space. Three bidders responded: Badcock Furniture Corporation, Sunburst Urethane Systems, Inc., and Chuck Bundschu, Inc. Badcock Furniture Corporation is not a party to these proceedings in that it did not seek an administrative remedy under Section 120.53(5), Florida Statutes. The bid acquisition has been designated by DHRS as Lease No. 590:1590. DHRS formed a bid evaluation committee to evaluate the bids which were submitted. The committee, consisting of William Samford, Residential Service's Director for Development Services, Frank Last, Senior Human Services Program Manager for Economic Services, Frances H. Clendenin, Administrative Services Director, John S. Cato, General Services Manager, and Ed Gauthier, Human Services Program Administrator for the Immokalee programs, visited the three prospective bid sites and evaluated the bid proposals. Each member individually reviewed and rated the bids and recorded his or her ratings on a form entitled Evaluation Criteria (Award Factors). The individual ratings were admitted into evidence as HRS Exhibits 2, 3, 4, 5 and 6. After the individual review, the committee met together for purposes of reaching a consensus evaluation. Based on that consensus, the committee generated a memorandum to the Department of General Services outlining the twelve evaluation criteria used and the points awarded to each bidder. On or about March 7, 1984, DHRS published its notice of intent to award Lease No. 590:1590 to Chuck Bundschu, Inc., as the successful bidder. By stipulation, only four of the evaluation criteria are in dispute as to the points awarded to each bidder. Those criteria resulted in the following ratings: Criteria 1 - Rental rate including projected operating expenses to be paid by lessor. Out of a total rating of 30 points, Sunburst received 30 points because it had the lowest rental rate during the term of the lease and the option years. Chuck Bundschu, Inc., received 27 points based on a formula designed by the committee. Under the formula, the maximum of 30 points was awarded to the low bidder if that bid was below the rent that had been set as the area rate and the other bidders then received points based on a ratio between their bid and the low bidder. Criteria 2 - Conformance of space offered to the specific requirements contained in the invitation to bid. A total of 20 points was available to each bidder in this criteria. Sunburst received 18 points and Chuck Bundschu, Inc., received the entire 20 points. The basis for the lower point award to Sunburst was that some of the proposed office space was in a residential building and the second floor of the two-story building was being and would be used for migrant farm housing. The property of Chuck Bundschu, Inc., was totally suitable and was well located. Criteria 4 - Provision of the aggregate square footage in a single building. Proposal will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other. Both Sunburst and Chuck Bundschu, Inc. would provide space in not more than two locations. However, Sunburst's buildings did not have a covered walkway connecting the buildings and the Bundschu property did. Therefore, Sunburst received 8 points and Chuck Bundschu, Inc. received the maximum 10 points. Criteria 6 - The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of Departmental operations planned for the requested space. Sunburst received two points and Bundschu received the maximum of five points because the characteristics of the neighborhood and the actual layout of the property was more conducive to the conduct of Departmental operations. Specifically, Sunburst's property had a congested parking lot where many people gathered including some undesirable persons. These people and their activities resulted in a higher crime rate in the area. Further, migrant housing would exist on the floor above the offices that would house valuable food stamps, thereby creating a security threat. Finally, a proposed additional parking site would result in cars traveling across a walkway where clients and employees might be injured. Bundschu's property had none of these drawbacks. The memorandum from the bid evaluation committee to the Department of General Services stated the committee's findings and point award totals for the twelve criteria. That memorandum indicated that Badcock Furniture Corporation received a total of 59 points, Sunburst received 79 points and Chuck Bundschu, Inc., received 93 points. It is undisputed that a clerical error occurred in the memorandum and the totals as reported were incorrect. At hearing, testimony was given that the corrected totals should have been 91 points for Sunburst and 95 points for Chuck Bundschu, Inc. However, even these totals do not agree with simple addition of the points as they are listed separately by criteria. It is found that the correct totals for the separate points awards as stated in the memorandum is 90 points for Sunburst and 95 points for Chuck Bundschu, Inc. Despite the discrepancy in the actual point totals is reported in the memorandum, a review of the individual evaluation forms shows that each evaluator independently awarded Sunburst fewer points than Bundschu. While there was contradictory evidence regarding the actual total points awarded and the method by which the consensus was reached, the clear and convincing evidence is that Bundschu was evaluated to be the best bidder by every evaluator and the evaluators properly applied the criteria. It is undisputed that the property offered by Chuck Bundschu, Inc., is on property partially zoned "VR", and before offices could go into the building, a provisional use variance must be approved by the Board of Zoning Appeals of Collier County. The bid evaluation committee did not consider zoning in evaluating the bids because zoning was not an element specified in the invitations to bid. The invitation to bid does not require the proposed site to be compatibly zoned in order for the bid to be valid and responsive. If the contract is awarded and the successful bidder fails to make the space available as agreed, whether because of zoning or otherwise, the successful bidder shall be liable to DHRS for liquidated damages for each day that the property is unavailable. Zoning is not an element to be considered in the award of the bid.
Recommendation Based upon the foregoing, it is RECOMMENDED that a final order be entered which awards the contract for Lease No. 590:1590 to Chuck Bundschu, Inc., as having submitted the lowest and best bid proposal. DONE and ORDERED this 26th day of July, 1984, in Tallahassee, Florida. DIANE K. KIESLING 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 26th day of July, 1984. COPIES FURNISHED: Robert M. Grguric, Esquire 900 Sixth Avenue South Suite 201 Naples, Florida 33940 Anthony N. DeLuccia, Esquire Post Office Box 06085 Fort Myers, Florida 33906
The Issue The issues in this case are whether certain questions within the June 2002 construction building contractor examination are invalid, and whether Petitioner should receive credit for certain answers scored as incorrect.
Findings Of Fact In June 2002, Petitioner sat for the construction building contractor examination. Shortly following the exam, Petitioner was advised that he incorrectly answered 17 of the 50 exam questions and did not attain the minimum passing score of 70 percent, but received a failing scaled score of 66 percent. Petitioner timely challenged the validity and scoring of eight questions, including questions 8, 14, 17, 33, 34, 38, 43, and 44. In order for Petitioner to acquire a passing score, Petitioner must prove that certain challenged questions are invalid or demonstrate that he is entitled to receive credit for his answers. Specifically, Petitioner must demonstrate that either three questions should be stricken from the exam providing Petitioner with 70.2 percent, two questions should be stricken and one answer scored as correct providing Petitioner with 70.8 percent or two answers should scored as correct providing Petitioner with 70 percent. QUESTION 8 Exam Question 8 asks, "According to AIA-A201, who determines the interest rate that the contractor can charge on due and unpaid payments?" Petitioner's expert, Mr. Uman, argues that the parties to the contract are not defined within the question and it is therefore misleading. However, the credited answer D, "all the parties must agree on the rate" is within the provided reference material and is clearly the best answer. It is not misleading and Petitioner's argument lacks merit. In addition, 89.47 percent of the test-takers correctly answered Question 8. QUESTION 14 Exam Question 14 is wordy and involves computations. It requires the test-taker to calculate the number of "labor" hours required per 100 pieces to build a wall, given certain pricing and wall construction information. Question 14 is ambiguous and confusing on its face. While the question asks for labor hours, the facts provide a fixed combined hourly cost for a mason and laborer's hour. There is no distinction made between "labor" hours and a "laborer's" hours. Mr. Collier admitted that there is some apparent confusion between "labor" costs and the "laborer's" costs. Mr. Palm further agreed and indicated that he fully understood Petitioner's rationale to divide the labor costs in half and choose answer A. Furthermore, it is clear that Petitioner's perception of the question was not unique. In fact, only 46.62 percent of the test-takers correctly answered Question 14. QUESTION 17 Exam Question 17 asks, "During the bid process, which document has priority in the event of conflicting information?" Clearly, the correct answer is B, "addenda." Petitioner's argument regarding "competitively bid projects" is without merit. Mr. Palm succinctly explained that Petitioner's selection was obviously incorrect because "plans don't change during the bid process unless there is an addenda issued." Moreover, 75.56 percent of the test-takers correctly answered Question 17. QUESTION 33 Exam Question 33 identifies a situation that where drawings differ from written specifications and where there is no legal precedent that one is more binding than the other. The question specifically calls for the best procedure according to the listed and available reference. While Mr. Uman argues that the answer does not appear within the reference material in a clear manner, the exact text of the question and answer are in fact within the material. Petitioner's argument lacks credibility. QUESTION 34 Exam Question 34 asks the test-taker "what is the EARLIEST workday for completing the masonry work?" given the number of crew, the number of hours required, and the ratio constant of the crew. Although 80.45 percent of the test-takers correctly answered Question 34, Mr. Uman argues that the question could have been answered without reference to the Builder's Guide to Accounting material and therefore, was misleading. Petitioner's argument is devoid of common sense. QUESTION 38 Exam Question 38 asks the test-taker to identify the activity that "a specialty structural contractor is qualified" to perform. Petitioner's expert, Mr. Uman, again argues that the question is misleading since the credited correct answer "perform non-structural work" is not written verbatim in the provided reference material. To the contrary however, all of the alternative choices are clearly listed in the reference material as activities specifically prohibited by specialty structure contractors. Furthermore, page 2B17 to 61G415.015 of the Contractor's Manual specifically states that: The specialty structure contractor whose services are limited shall not perform any work that alters the structural integrity of the building including but not limited to roof trusses. Respondent's experts, Mr. Collier and Mr. Palm, agree that Question 38 is clear. Moreover, 53.38 percent of test- takers correctly answered the question. While the question appears to require enhanced reasoning skills and is generally more difficult, it is not misleading. Petitioner's assertions are without merit. QUESTION 43 Exam Question 43 asks, "Which accounting method should be used by a contractor if the contractor is unable to reasonably estimate the amount of progress to date on a job or the total costs remaining to fulfill the contract?" Mr. Uman argues that the question is ambiguous and the reference material is "not terribly clear." He further alleges that when a contractor cannot estimate progress, the contractor cannot establish a "completed contract method," the credited correct answer. Respondent's experts disagree. While it is true that Mr. Palm agreed that all of the choices are accounting methods which is inconsistent with Mr. Collier's testimony, the reference material is clear. In fact, 58.65 percent of the test-takers correctly answered Question 43. Petitioner presented insufficient evidence that he should receive credit for his answer or that Question 43 should be invalidated. QUESTION 44 Exam Question 44 provides detailed information regarding a standard form contract and asks, "Based ONLY on the information given above, what is the amount of the current payment due?" In addition, however, as Mr. Uman points out, the standard form referred to in the problem was mistakenly misidentified as Form 201 instead of Form 702. While it is clear that the referenced form was mislabeled, the precise form number was incidental, unrelated to the question, and unnecessary to compute the answer. In fact, Mr. Palm explains that the problem was "just a mathematical exercise." According to Mr. Collier, the question was not misleading, and the incorrect reference was irrelevant. "It's simple math, industry knowledge." Furthermore, Petitioner's answer is clearly incorrect because "he failed to deduct the retainage." Finally, 54.89 percent of the test-takers correctly answered Question 44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered invalidating only Question 14, re-computing Petitioner's examination score, and dismissing his challenge. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 1st day of October, 2003. COPIES FURNISHED: Nickolas Ekonomides, Esquire 791 Bayway Boulevard Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent discriminated against the Petitioner on the basis of her age, in violation of Section 760.10, Florida Statutes (2004),1 the Florida Civil Rights Act of 1992, as amended.
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: In February 2002, Ms. Cabrera was hired by the Housing Authority as the Assistant to the Capital Funds Program Coordinator ("CFP Coordinator"). The CFP Coordinator was, at all times material to this proceeding, Celi Ervesun, who was Ms. Cabrera's direct supervisor. At the times material to this proceeding, Ms. Cabrera was over 40 years of age. At the times material to this proceeding, the Capital Funds Program ("CFP") department was responsible for managing construction projects involving the modernization of the public housing buildings under the jurisdiction of the Housing Authority, as well as for any other construction work being undertaken by the Housing Authority and any major maintenance projects costing over $12,000. The position of assistant to the CFP Coordinator was advertised, and Ms. Cabrera was one of several persons in the pool of applicants chosen by the Executive Director of the Housing Authority, Jose Morales, for interviews. Ms. Ervesun interviewed Ms. Cabrera and recommended to Mr. Morales that Ms. Cabrera be offered the position. On the basis of Ms. Cabrera's résumé and the interview, Ms. Ervesun believed that Ms. Cabrera had the qualifications necessary for the position as her assistant. Ms. Ervesun was not aware of Ms. Cabrera's age when she recommended that Ms. Cabrera be hired. Among the major duties and responsibilities of the assistant to the CFP Coordinator was assisting the CFP Coordinator in preparing materials and forms for bid packages for construction work to be performed under the CFP; assisting with the preparation of numerous work documents associated with the CFP; assisting with the preparation of reports; serving as the CFP Coordinator's secretary and receptionist; and maintaining "an accurate and up-to date the [sic] file system and all records and forms that involve the construction contract administration of all modernizations works."2 When she first began working at the Housing Authority, Ms. Cabrera appeared to be interested in her job, and she performed her assigned tasks well and willingly. As time passed, however, Ms. Ervesun noticed that Ms. Cabrera was not completing assignments timely and was not sufficiently knowledgeable about construction management to enable her to understand fully the requirements of her job. In Ms. Cabrera's annual evaluation, completed in February 2003, Ms. Ervesun rated Ms. Cabrera "Below Average" in technical and operational job knowledge and in planning and organizing. Ms. Ervesun noted that the CFP had many ongoing projects and that Ms. Cabrera needed to improve her time- management skills and her ability to plan and use her time well. Ms. Ervesun noted that Ms. Cabrera "has a positive attitude and is ready to attend all seminars that could improve her ability to perform her tasks."3 When Ms. Ervesun actually asked Ms. Cabrera to attend seminars, however, Ms. Cabrera refused to travel, outside Miami, Florida. Although there were few relevant seminars in Miami, Ms. Ervesun made arrangements for Ms. Cabrera to attend one seminar in Miami. Shortly before the seminar was scheduled to take place, Ms. Ervesun was out of town and Ms. Cabrera expressed her intention not to attend the seminar. This came to the attention of Jose Martinez, who was the Director of Administration for the Housing Authority at the time, and Mr. Martinez ordered Ms. Cabrera to attend the seminar, which she did. The organization and maintenance of construction- project files was of particular concern to Ms. Ervesun. The CFP department had been closed prior to Ms. Ervesun's being hired in January 2002, and the project files kept by the CFP had not been properly maintained. Because many of the projects undertaken by the Housing Authority and overseen by the CFP used government funds, federal agencies, including the Department of Housing and Urban Development and the Army Corps of Engineers, frequently audited the project files maintained by the CFP. It was, therefore, essential that the files be kept up-to-date and organized in accordance with a checklist provided to Ms. Ervesun by the Army Corps of Engineers after it found during an audit in February 2002 that the CFP project files were in disarray. At the time of the Army Corps of Engineers' audit, the CFP department was housed in a very small space. Ms. Ervesun decided to wait until the department moved into larger office space to begin the task of organizing the files in accordance with the guidelines provided by the Army Corps of Engineers. The move occurred in April 2003, and Ms. Ervesun expected Ms. Cabrera to begin working in earnest on the files at that time. At any given time, the CFP Coordinator oversaw approximately 60 projects. The project files were quite extensive and included many documents that had to be organized in accordance with the guidelines provided by the Army Corps of Engineers. Ms. Ervesun suggested to Ms. Cabrera that she work on the files at least one hour each day to clear up the backlog in filing and to keep the files current. Ms. Ervesun found, however, that Ms. Cabrera made very little progress in organizing the files and also failed to complete other essential job responsibilities timely, such as verifying payrolls for workers on construction projects, another task required by the federal agencies providing funding for the construction projects. By the fall of 2003, Ms. Ervesun had become increasingly unhappy about Ms. Cabrera's failure to complete assigned tasks and her tendency to make numerous mistakes in her work. Ms. Ervesun often raised her voice to Ms. Cabrera and expressed her displeasure with the way Ms. Cabrera was doing her job. John Esposito, whose office was next to Ms. Cabrera's and Ms. Ervesun's office, overheard Ms. Ervesun, in a loud voice, tell Ms. Cabrera that she was stupid and incompetent; that the quality of her work was not satisfactory; that she needed to stop making the same mistakes over and over; and that she needed to do better work. In Mr. Esposito's opinion, Ms. Ervesun was unprofessional in some of her dealings with Ms. Cabrera, and he considered Ms. Ervesun's tone of voice to be demeaning to Ms. Cabrera and her treatment of Ms. Cabrera abusive. Ms. Cabrera related one incident that she considered particularly humiliating: She was asked by Ms. Ervesun and several co-workers to take off her shoes so they could measure her height to prove that she was not really 5'3" tall, as she claimed. Ms. Cabrera believed that Ms. Ervesun made fun of her because she was short. Mr. Esposito observed Ms. Cabrera in tears on a number of occasions, and Ms. Cabrera complained to him about the way Ms. Ervesun treated her and about what Ms. Cabrera considered Ms. Ervesun's incompetence. Ms. Ervesun mentioned several times to Mr. Esposito that she needed to replace Ms. Cabrera because she was not doing her job. In the fall of 2003, both Ms. Ervesun and Ms. Cabrera discussed with Mr. Martinez the problems each was having with the other. Ms. Ervesun told Mr. Martinez that Ms. Cabrera was making a lot of mistakes in her work and asked Mr. Martinez to talk to Ms. Cabrera about her job performance.4 Before he began counseling Ms. Cabrera about her job performance, however, Mr. Martinez conducted his own investigation, and he confirmed that Ms. Cabrera was, in fact, making numerous mistakes, especially in maintaining the project files. When Mr. Martinez began counseling Ms. Cabrera, she consistently denied making the mistakes identified by Ms. Ervesun and told Mr. Martinez that Ms. Ervesun was "picking on her" about her job performance. After a counseling session, Ms. Cabrera would do better for a while but then lapse back into making careless mistakes in filing or in the preparation of reports. On the occasions when Ms. Ervesun complained to Mr. Martinez about Ms. Cabrera's mistakes, he personally looked at the files and satisfied himself that Ms. Cabrera was actually making the mistakes Ms. Ervesun complained about. Mr. Martinez believed the situation could be improved if Ms. Cabrera would put in the effort and if she and Ms. Ervesun would work together as a team. Mr. Martinez advised Ms. Ervesun to help Ms. Cabrera correct her mistakes in keeping the files by putting in writing the way she wanted the files organized and maintained. Ms. Ervesun had consistently told Ms. Cabrera that the files needed to be organized in accordance with the guidelines provided in February 2002 by the Army Corps of Engineers. Except for the observations included in Ms. Cabrera's February 2003 evaluation, the first time Ms. Ervesun put any of her complaints in writing to Ms. Cabrera was in a memorandum dated October 10, 2003. In that memorandum, Ms. Ervesun told Ms. Cabrera to concentrate on getting the project files in order. On December 12, 2003, Ms. Ervesun wrote Ms. Cabrera another memorandum regarding Ms. Cabrera's failure to finish organizing the project files and her failure to make sure that all filing was current. Ms. Ervesun referred to a discussion she and Ms. Cabrera had on "Wednesday," presumably December 10, 2003, in which Ms. Ervesun had asked Ms. Cabrera to provide her a written report on the status of the files and filing "by the end of the day."5 Ms. Ervesun noted that Ms. Cabrera had not provided the status report as of December 12, 2003. Ms. Ervesun directed Ms. Cabrera to have the report on her desk by December 15, 2003, but extended the deadline to December 16, 2003, because the computers were down on December 15. On December 22, 2003, Ms. Ervesun wrote to Ms. Cabrera requesting that she provide her with the status report Ms. Cabrera was to have provided on December 16, 2003. Ms. Cabrera responded that afternoon with the status of the files in five of the file drawers. Ms. Ervesun replied on December 23, 2003, that she needed the status of the files in the remaining eight file drawers. At some point during her employment with the Housing Authority, Ms. Cabrera joined the employees' union. Ms. Ervesun was not aware at the time that Ms. Cabrera had joined the union and was not concerned that she had done so. When Mr. Martinez learned that Ms. Cabrera had joined the union, he involved Ms. Cabrera's union representative in the efforts to help her improve her performance. Mr. Martinez also offered to allow Ms. Cabrera to work overtime, for additional pay, to catch up with her work, but Ms. Cabrera did not take advantage of this opportunity. On January 14, 2004, Ms. Ervesun was advised that Ms. Cabrera had not provided corrected advertisements for an up- coming bid solicitation in time for the publication deadline, resulting in the bid solicitation having to be revised to include a new deadline. On January 16, 2004, Ms. Ervesun issued a Final Warning to Ms. Cabrera, with the agreement of Mr. Martinez and Mr. Morales, the Housing Authority's Executive Director. In the Final Warning, Ms. Ervesun pointed out a number of deficiencies in Ms. Cabrera's job performance and stated that Ms. Cabrera would be given 10 days to bring her "job tasks and responsibilities up to departmental standards" or face disciplinary action that could include termination.6 Ms. Cabrera was actually given over 30 days to correct her performance deficiencies, but she failed to complete assigned tasks timely and continued to make mistakes in filing and in preparing reports. Ms. Cabrera was advised in a memorandum from Mr. Martinez dated February 20, 2004, that the Housing Authority's Executive Director had terminated her employment based on her "repeated failure to follow instructions" and on the following: On several occasions the Capital Fund Program Coordinator met with you to discuss the many pending issues (e.g., files not updated, failure to verify certified payroll, failure to complete assignments on time) that currently exist in the Capital Fund Department and to date most of those issues are still pending. You failed to act upon the orders and the written warning given to you in the presence of your Union Representative on January 16, 2004 in order to resolve all the pending issues. Furthermore, other tasks that were assigned to you have yet to be completed (i.e., list identifying files in storage). Your failure to follow instructions is a violation of the Authority's Personnel Rules and Regulations, Rule XXV, A. Category I, 6 - "failure to follow instructions.[7] Ms. Cabrera was advised of her right to appeal the decision by filing a grievance, which she did through her union representative. Ms. Cabrera attached a "Grievance Report" to the Employee Grievance form, in which she objected to her termination and stated various grounds for her contention that her termination was not warranted; none of the grounds mentioned by Ms. Cabrera referred to age discrimination. After a hearing before the Housing Authority's Board of Commissioners, the decision to terminate Ms. Cabrera was upheld. Ms. Cabrera was replaced as assistant to the CFP Coordinator by a young woman who was under 30 years of age. The replacement was hired on Ms. Ervesun's recommendation after following the routine procedure for filling job-vacancies at the Housing Authority. Summary Ms. Cabrera offered no persuasive direct evidence to establish that her termination was the result of discrimination because of her age. The only direct evidence that Ms. Cabrera offered was her own self-serving testimony, which is not credited, that Ms. Ervesun had told her that she was too old for the assistant's job and that Ms. Ervesun had told her she intended to replace Ms. Cabrera with a younger person. Ms. Cabrera conceded that no one overheard Ms. Ervesun make these remarks; she did not file a formal complaint with the Human Relations Department that Ms. Ervesun was discriminating against her on the basis of her age; she did not complain verbally to Mr. Martinez or Mr. Esposito that Ms. Ervesun's treatment of her was based on her age; and she did not include an allegation of age discrimination in the grievance that the union filed on her behalf to challenge her termination. The evidence presented by Ms. Cabrera was sufficient to establish that she was over 40 years of age at the relevant times, that she was terminated from her employment, that she was initially considered qualified for the position as assistant to the CFP Coordinator, and that she was replaced by a younger person. The evidence presented by the Housing Authority established that Ms. Cabrera was terminated because she did not perform her job responsibilities satisfactorily, after a number of warnings and counseling sessions, and Ms. Cabrera did not submit any evidence to establish that this proffered reason for her termination was a fabrication or was otherwise unworthy of belief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Lucy Cabrera. DONE AND ENTERED this 8th day of January, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 8th day of January, 2007.
The Issue The issue is whether Mr. Harrison's response to question 8 on the General Contractor's Examination given on October 3, 1985 was incorrectly graded. If Mr. Harrison were given credit for his answer to that question, he would pass the examination. The examination was correctly graded, however, and the petition filed by Mr. Harrison should be dismissed.
Findings Of Fact Mr. William D. Harrison took the Florida Construction Industry Licensing Board's General Contractor's Examination on October 3, 1985. According to his grade report his grade was 68.65. A total grade of 69.01 is necessary to pass the examination. Rule 21E-16.05, Florida Administrative Code. If he were given credit for the answer he gave to question number 8 on the portion of the examination given the afternoon of October 3, 1985, he would pass the examination. The question at issue sought an estimate of the amount of concrete necessary to construct entrance steps for a hypothetical building. The Department of Professional Regulation, Office of Examination Services had prepared drawings for a building consisting of 14 different sheets showing various elevations, aspects or other details of the building. These drawings were used in answering the examination questions. Question 8 read: The total volume of concrete to place the concrete entrance steps (only) is cubic yards. Select the closest answer. (A) 4.7 (B) 5.9 (C) 6.5 (D) 7.0 Mr. Harrison chose answer (A). The correct answer is answer (D). Sheet 4 of 14 of the drawings shows the first floor plan for the building. There are a total of four 11'6" spans of concrete entrance steps to the covered entry on the north and south sides of the building. The detail of the steps on sheet 4 of 14 shows that they generally have a 6" rise and are 1' in depth. According to the same sheet of the drawings, there are also other concrete steps to be constructed on the east and west sides of the building of 11' spans. In the northwest and southeast corners of the building there are enclosed stairwells serving the four floors of the building. The steps in these stairwells also contain concrete as an element in their construction. Mr. Harrison contends that the question is phrased in a misleading manner. In his view only the north and south entrance steps should be included in the calculation of the amount of concrete needed for "entrance steps (only) ." According to his calculations, placing those entrance steps would require 4.889 cubic yards of concrete. The closest answer available is 4.7, answer (A), which he gave. By reference to a dictionary of construction terms, Mr. Harrison argues that a building's area excludes uncovered entrances, terraces and steps. He believes he correctly excluded the covered steps on the east and west sides of the building from the calculation of "entrance steps," treating them as part of the building area, not entrances. The Departments contends that the question is specifically constructed to test the level of detail with which examinees read the drawings. On sheet 4 of 14 the symbol "A/4" appears, with a line cutting perpendicularly through the western steps. That symbol points out to examinees that a detailed drawing for the construction of the concrete entrance steps appears on that sheet. That perpendicular line through the western steps demonstrates that the eastern and western steps are "entrance steps" in the plans, and must be included in the calculation required in question 8. Answer (A), chosen by Mr. Harrison, is a distractor specifically designed to determine whether examinees have included the east and west steps in their calculation. If excluded, the calculation yields an answer of exactly 4.7 cubic yards of concrete (Mr. Harrison's calculation of 4.889 is slightly off). If all four spans of entrance steps are included, the correct answer of 7.0 cubic yards is obtained. The phrase "entrance steps (only)" appears in question 8 to make clear to examinees that the concrete allocable to the steps of the enclosed northwest and southeast stairwells is not part of the calculation. After an examination is graded, but before the grade reports are distributed, the Department does a statistical analysis of the patterns of responses to all examination questions to determine whether those patterns reveal a problem such as a general misreading of any questions. If a question performs badly, it can be deleted from the grading process before the grade reports are distributed to examinees. The analysis done on the answers to question 8 shows that of the 887 examinees, 180 of those who ultimately scored in the upper 27 percent of the examination overall answered the question correctly with answer (D); of those scoring in the middle 46 percent on the overall examination, 148 gave the correct answer; of those examinees scoring in the lower 27 percent overall, only 69 gave the correct answer. Among those choosing answer (A), as Mr. Harrison did, 36 of those who scored in the upper 27 percent overall gave that answer, 116 of those in the middle 46 percent chose the answer, and 102 of those scoring in the lower 27 percent chose that answer. Statistically, the question performed well. The evidence shows that answer (A) acts as the distractor which it was designed to be. Those who do not read the drawings carefully select the answer which would be correct if only the north and south steps are included in the calculation. Given the specificity of the drawing showing the east and west steps as entrance steps, however, Mr. Harrison's objection to the grading of his answer to question 8 is not well founded. Mr. Harrison had also raised, in his letter challenging his grade, an objection to another test question. At the hearing, however, he abandoned that challenge.
Recommendation It is recommended that the petition for regrading of the General Contractor's Examination given in October 1985 by the Construction Industry Licensing Board be DENIED. DONE AND ORDERED this 28th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 28th day of April, 1986. COPIES FURNISHED: Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. William D. Harrison 3490 Artesian Drive Lantana, Florida 33462
The Issue Whether a statement included in the Department of Transportation's 2014 Median Handbook constitutes an unadopted rule, as defined in section 120.52(20), in violation of section 120.54(1)(a).
Findings Of Fact The Parties Petitioner, Ocala Herlong, LLC, is a Florida limited liability company that owns property located at 2905 North Pine Avenue, Ocala, Florida. This property abuts the State Highway System ("SHS"). Respondent, Department of Transportation, is the state agency that is responsible for, among other things, overseeing access connections to the SHS and the planning, design, and use of traffic control features and devices, including traffic signals, channelizing islands, medians, median openings, and turn lanes, in the SHS right of way. The Statute The statute at issue in this proceeding, section 335.199, Florida Statutes, states in pertinent part: 335.199 Transportation projects modifying access to adjacent property.- (1) Whenever the Department of Transportation proposes any project on the State Highway System which will divide a state highway, erect median barriers modifying currently available vehicle turning movements, or have the effect of closing or modifying an existing access to an abutting property owner, the department shall notify all affected property owners, municipalities, and counties at least 180 days before the design of the project is finalized. The department’s notice shall provide a written explanation regarding the need for the project and indicate that all affected parties will be given an opportunity to provide comments to the department regarding potential impacts of the change. § 335.199, Fla. Stat. The statute requires that for projects that will (among other things) erect median barriers modifying currently available vehicle turning movements, affected property owners will be notified at least 180 days before the project's design is finalized. Background of the Challenged Statement Respondent publishes a document titled "Median Handbook." The cover of the Median Handbook explains that its purpose is to: guide the professional through existing rules, standards, and procedures . . . on the best ways to plan for medians and median openings. Unless specifically referenced, this is not a set of standards nor [sic] a Departmental procedure. It is a comprehensive guide to allow the professional to make the best decisions on median planning. The Median Handbook has not been adopted as a rule pursuant to the rulemaking procedures in section 120.54. On June 13, 2017, Petitioner initiated this proceeding by filing a Petition for the Administrative Determination of the Invalidity of an Agency Statement, pursuant to section 120.56(4), challenging a provision in section 1.3.8 of Respondent's Handbook as an unadopted rule that violates section 120.54(1)(a).2/ Section 1.3.8 of the Handbook is titled "Florida Statute 335.199 - Public Involvement." This section addresses the meaning and applicability of section 335.199, which was enacted in 2010. The provision alleged to be an unadopted rule (hereafter, the "Challenged Statement") appears on page 20 of the Handbook. This provision, which refers to Committee Substitute for Committee Substitute for Senate Bill (or "SB") 1842,3/ states: This bill applies to any proposed work program project beginning design on or after November 17, 2010. The language of the bill states 'whenever the Department of Transportation' proposes any project,' so this language does not apply to permit applications. However, for permit applications that affect medians and median openings, the effected [sic] people and businesses should be informed and involved by the permittee as soon as possible. Upon the enactment of section 335.199,4/ Respondent's staff, including its chief engineer and its legislative liaison, engaged in email discussions, dated November 17 and 18, 2010, regarding the effect the statute would have on Respondent's existing procedures regarding median openings and access management5/ and the application of its access management standards in Florida Administrative Code Rule 14-97.003. Although the email discussion referred to an "implementation plan," at this point, Respondent's discussion primarily focused on whether its procedures and existing rules would need to be amended to address section 335.199. However, by November 29, 2010, Respondent's staff were raising questions as to whether section 335.199 applied to "permit jobs"——referring to the construction of connections to the SHS, which require connection permits pursuant to section 335.1825 and Florida Administrative Code Chapter 14-96. Specifically, in an email dated November 29, 2010, from Respondent's legislative liaison to Respondent's secretary and chief engineer, the following matters were discussed: Brian: You asked me to forward any further questions/comments on the median bill, SB 1842. I had some further thinking-out- loud with DS folks who outlined a couple more thoughts. Recall the opening words of the new language in the bill: Whenever the Department of Transportation proposes any project. These comments/questions are all about permit jobs. Let's use a hypothetical permit application to put in a big gas station. Let's say a left-turn lane will need to be lengthened, so maybe an opening needs to be closed; maybe another needs to be relocated, etc. It's a permit job, not a project DOT is proposing. Does the bill apply at all? If the bill does apply, how is the time of issuance of the permit impacted? On November 30, 2010, Respondent's chief engineer and district operations directors conducted a videoconference to address, among other things, the "[e]ffects of legislative action on SB 1842. How will department practices be impacted, on a statewide basis? Specifically as it relates to permit reviews." As a result of the November 30, 2010, videoconference, Respondent's staff made the decision that "SB 1842 will not apply to permit projects since the Bill says [']whenever the Department of Transportation proposes a project[']. We should not try to expand the Bill or read it in a broader sense." On December 18, 2010, Respondent's chief engineer sent an email to Respondent's secretary and others, titled "SB 1842 transportation projects modifying access to adjacent properties." That email (hereafter, the "Blanchard Memo"), which addresses the applicability of section 335.199 to projects, permit applications, and permittees, states in pertinent part: This bill applies to any proposed work program project beginning on or after November 17, 2010. The language of the bill states [']whenever the Department of Transportation proposes any project['], so this language does not apply to permit applications. However, for permit applications that affect medians and median openings, the effected [sic] people and businesses should be informed by the permitee [sic] as soon as possible. On December 20, 2010, Respondent's secretary responded: "OK." After receiving Respondent's secretary's approval, on December 21, 2017, Respondent's chief engineer distributed the Blanchard Memo to Respondent's district secretaries.6/ Respondent's document regarding Topic No. 625-010- 021-h, titled "Median Openings and Access Management" and dated February 20, 2013, was revised to include, in section 7.2, a statement substantially similar to the Blanchard Memo. This document was approved by Respondent's secretary. In 2014, Respondent published an updated version of its Handbook containing the Challenged Statement (which is set forth in paragraph 6, above). The Challenged Statement has not been adopted pursuant to the rulemaking procedures in section 120.54. Respondent contends that the Challenged Statement is not a rule but is instead merely a reiteration of the statute's language stating that the 180-day notice requirement applies only when Respondent proposes a project. Effect of the Challenged Statement Statute Applicable Only to "Work Program" Projects By its terms, the Challenged Statement concludes that section 335.199 applies only to "work program" projects. At the final hearing, Respondent's party representative, Gary Sokolow,7/ acknowledged that section 335.199 does not define the term "project," and that a person could not determine, from reading the statute, what would (or would not) be considered a "department project" for purposes of determining applicability of the statute. He further acknowledged that the Challenged Statement contains the words "work program" to define projects covered by the statute, but that the statute itself does not contain the words "work program" to define the projects to which it applies. Sokolow also acknowledged that a "work program project" is a specific type of project.8/ He testified that Respondent undertakes "safety" projects that are not "work program" projects and that entail the erection of median barriers that change vehicle turning movements. This evidence establishes that a "work program project" is a specific kind of project, and further establishes that Respondent does undertake projects which are not "work program" projects, and that involve erecting median barriers that change vehicle turning movements. Statute Not Applicable to Connection Permit Applications By its terms, the Challenged Statement also concludes that section 335.199 does not apply to applications for connection permits to obtain access to the SHS.9/ Pursuant to section 335.1825, a connection permit must be obtained in order for the owner of property abutting the SHS to construct a connection to the SHS. To obtain a connection permit, the owner of property for which the connection is sought must file, with Respondent's pertinent district office, an application for a connection permit. The permit application must detail the specific design features of the proposed connection to the SHS. As part of a permit application, the applicant may suggest or request that a median opening be created to accommodate traffic flow as related to the proposed connection to the SHS. Respondent reviews the application for compliance with the applicable requirements of chapter 14-96, and either issues the connection permit or denies the application. Rule 14-96.003(4) states that traffic control features and devices in the right of way——which expressly include medians, median openings, and turn lanes——are not a means of access to the SHS. The rule further states that connection permits are only issued for connections——not for existing or future traffic control features or devices at or near the permitted connections; thus, while a permit may describe such traffic control features or devices, such description does not create any type of interest in such features. Fla. Admin. Code R. 14-96.003(4). Therefore, although a connection permit applicant may request or suggest the construction of a traffic control device, such as a median opening or other device, the applicant is not entitled to such a device. Additionally, Respondent, in the context of reviewing a connection permit application, may, on its own volition, determine that it is appropriate, based on traffic and safety studies, to erect a median, create a median opening, or close an existing median opening——even where (as here) such median erection, opening, or closure has not been requested by the connection permit applicant. To this point, Sokolow distinguished between median changes associated with Respondent's work program projects and those associated with permit applications in that, in the former, the changes are necessitated by Respondent's projects, while in the latter, they are necessitated by a new connection to the SHS. However, he confirmed that Respondent's decision-making process regarding creation of a new median opening and closing of an existing median process in the permit application context is the same as when Respondent itself constructs a project that requires creation of a new median opening and closure of an existing opening, in that in both contexts, Respondent's decisions regarding medians are driven by traffic and safety studies. This evidence establishes that based on Respondent's rules and as a matter of its practice, all decisions to propose, approve, construct, or modify traffic control features——such as erecting a median or opening or closing a median opening——are, in all scenarios, solely within Respondent's control and discretion. Binding Nature of the Challenged Statement When questioned about the effect of the Challenged Statement as set forth in the Handbook, Sokolow testified: "[m]andatory – it's stating that this is what Brian Blanchard asked us to do. . . . It should be followed unless there is a darn good reason not to follow it." When asked whether Respondent's district offices could elect not to follow the Challenged Statement, Sokolow responded "[m]y opinion is no. They really need to follow what it says there." Specifically regarding the third sentence in the Challenged Statement, which states "for permit applications that affect medians and median openings, the effected [sic] people and businesses should be informed and involved by the permittee as soon as possible," Sokolow testified that Respondent wanted to ensure that affected property owners would be given notice of connection permit applications that would affect medians and median openings——whether by the permittee (who technically, at the time of applicant processing, would be an "applicant," rather than a "permittee") or by Respondent. However, he acknowledged that Respondent did not have any rules or policies requiring it, rather than a connection permit applicant, to notify property owners regarding applications for connection permits that would affect medians and median openings. He further acknowledged that pursuant to the Challenged Statement, Respondent includes, in notices of intent to issue highway connection permits that would affect a median or median opening, the requirement that the applicant give notice to affected people or businesses as soon as possible. The upshot of Sokolow's testimony is that Respondent's districts must comply with the determination that the statute is applicable only to Respondent's work program projects and is not applicable to permit connection applications, but that the notice directive in the third sentence of the Challenged Statement is not "mandatory" because the notice may be provided either by the permittee or by Respondent. To that point, Sokolow acknowledged that this sentence requires such notice to be provided to affected people and businesses, so providing such notice is not discretionary in the sense that a permittee may simply choose whether or not to provide the notice; however, he contended that the notice requirement is not binding or mandatory for permittees because, as a matter of practice, Respondent, rather than the permittee, sometimes provides the notice. Sokolow acknowledged that Respondent did not have any formal standards for determining when Respondent, in lieu of the permittee, would assume responsibility for providing the notice. Impact of the Challenged Statement on Petitioner As noted above, Petitioner owns property in Ocala, Florida, that abuts the SHS. Because the Challenged Statement prescribes the notice to be provided for projects that will affect medians and median openings on the SHS, and, thus, potentially impact access to and from Petitioner's property, Petitioner is substantially affected by the Challenged Statement. Feasibility and Practicability of Rulemaking Respondent does not argue, and did not present evidence to show, that if the Challenged Statement is determined to be a rule, rulemaking is not feasible or practicable.10/
The Issue Whether Petitioner is entitled to any credit for his answer to Question 51 of Division G of the June 1989 Board of Architecture examination.
Findings Of Fact In June, 1989, Petitioner sat for the examination given by Respondent to become certified in Florida as an architect. Petitioner received a failing grade on Division G of the examination, the part of the examination that relates to mechanical, plumbing, and electrical systems. Petitioner received no credit for his answer to question 51 of Division G. Had Petitioner received any credit for his response to question 51, he would have passed Division G. Petitioner had previously passed the other portions of the examination and has taken Division G six times. Following notification that he had failed the examination, Petitioner filed a timely challenge to Respondent's grading of Question 51, contending that his answer was correct and that he should have been given credit for his answer. The National Council of Architectural Registration Boards prepares a standardized examination that is used by many states, including Florida, for the testing of candidates for certification as architects. Question 51 of Division G is a question on that standardized examination. Question 51 is an objective question that tests the applicant's knowledge as to the types of fixtures or types of equipment that are required to have their waste outlets equipped with air gaps to prevent contamination due to possible backup of sewage through the waste piping. The candidate is required to select the correct answer from one of four possible answers. Petitioner concedes that the answer Respondent contends is the only correct answer is a correct answer to the question. Petitioner maintains, however, that the question is misleading and that the answer he selected also correctly answers the question. There is only one correct answer to the question. The answer given by Petitioner to question 51 of the examination was not correct because the waste outlet on the fixture selected by Respondent does not have an air gap and is, instead, directly connected to the drainage system. The air gap on the fixture selected by Petitioner as being the correct answer is between the potable water supply and the fixture, which is referred to as being an air gap in the water distribution system. Petitioner's contention that the question is misleading is rejected. There is a difference between an air gap for the water distribution system and an air gap for the waste system. Petitioner's failure to distinguish between the two types of air gaps caused him to incorrectly answer the question. Respondent gave Petitioner no credit for his answer to Question 51 because he failed to select the correct answer to the question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, State of Florida, Department of Professional Regulation, enter a final order which denies Petitioner's challenge to Question 51 of Division G of the examination. It is further recommended that the Hearing Officer Exhibit filed in this proceeding be sealed. RECOMMENDED this 14th day of May, 1990, in Tallahassee, Leon County, Florida. 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 14th day of May, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-0237 The following rulings are made on the proposed findings of fact submitted by Petitioner in his letter filed April 27, 1990. Paragraph 1 of the letter consists solely of argument. Paragraph 2 of the letter is rejected as being contrary to the greater weight of the evidence. Paragraphs 3 and 4 of the letter are rejected as being unnecessary to the conclusions reached. The first sentence of Paragraph 5 of the letter is rejected as being contrary to the conclusions reached. While the subject question may have been a difficult question, the contention that the question was misleading is rejected. Paragraph 5(1) is rejected as being argument and as being, in part, contrary to the position taken by Petitioner at the final hearing. Paragraph 5(2) is rejected as being argument and as being unnecessary to the conclusions reached. Petitioner's argument in Paragraph 5(2) reflects his misreading of the question that was posed to him. The following rulings are made on the proposed findings of fact submitted by Respondent. The proposed findings in paragraphs 1 - 5 are accepted in material part. The proposed findings in paragraphs 6 and 7 are rejected as being subordinate to the findings made. The proposed findings in paragraph 8 are rejected as being subordinate to the findings made. COPIES FURNISHED: Juan A. Montalvan, Jr., pro se 11031 S. W. 40th Terrace Miami, Florida 33165 E. Harper Field, Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patricia Ard Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue for disposition is whether Mary McCarty, Respondent in a complaint to the Florida Commissions on Ethics, is entitled to costs and reasonable attorney's fees from the complainant, Leslie F. McDermott, pursuant to Section 112.317(8), F.S.
Findings Of Fact Mary McCarty has resided in Delray Beach, Florida for approximately twenty years. She is politically active as a Republican; she served as a Delray Beach city commissioner from 1987 until 1990, and now currently serves as chairperson of the Palm Beach County Commission. William (Bill) Andrews, also a Republican, was elected to the Delray Beach City Commission approximately one year after Ms. McCarty. The two worked together on certain issues, including an issue regarding the firing of the city manager, and more often than not, they voted on the same side. Leslie F. McDermott lives in Lake Worth, Palm Beach County, Florida. He has never resided in Delray Beach. He is employed as an engineer for a computer company and is well known and respected in the community as an active member of the NAACP. He served as president of the south county branch of the NAACP for seven or eight years until recently, and now serves on the executive board of that local branch. Jeanette (Jay) Slavin is a "grass roots" political activist in the south county area. As a Democrat she has been very involved in political campaigns and has openly supported candidates and issues in heated opposition to Mary McCarty. Malcolm Byrd, a Republican, served on the Delray Beach City Commission from 1979 until 1987, and was city manager from 1989-90. At first he supported Mary McCarty, but as city manager he had differing views of how the city should proceed and how the city manager should function. In early 1990, Malcolm Byrd learned that Bill Andrews had attended a Republican fund-raiser in Orlando, with transportation by chartered jet and limousine provided by a third party. Bill Andrews openly discussed the trip and how lavish it was. Andrews displayed a photograph of himself at the event with President Reagan or other noted Republicans. Malcolm Byrd became aware that Andrews had not reported that trip on his financial disclosure form, and shared that information with Jay Slavin. There was also some talk that Mary McCarty had attended the fund-raiser, as Andrews referred to "we" when discussing the trip. Mary McCarty's financial disclosure form for 1990 did not reflect the alleged gifts related to the trip. Jay Slavin had lunch with Leslie McDermott and urged him to file ethics complaints against both Andrews and McCarty. Ms. Slavin had obtained the requisite forms from the commission. She felt that Leslie McDermott's complaint would have more credibility as she, Slavin, was known to be politically opposed to Andrews and McCarty. Leslie McDermott was reluctant at first to file the complaint against McCarty, as the only basis that Jay Slavin gave him was that Bill Andrews said "we" went on the trip, and everyone knew that Mary McCarty frequently attended fund-raisers and political events. Leslie McDermott drafted the complaint based on information from Jay Slavin, and Ms. Slavin typed it for his signature, as he has a visual handicap. Before sending the complaint, McDermott spoke with Malcolm Byrd, who told him that he did not have the evidence on McCarty that he had on Andrews and that he could not encourage him to file on McCarty. McDermott heard rumors from other people who believed she had attended the function, but no one told him they had personal knowledge of the trip or had actually seen McCarty. At the hearing, and during the investigation by the commission, Leslie McDermott refused to divulge the names of those other persons who told him they believed Mary McCarty took the trip. After sending the complaints, McDermott gave Jay Slavin permission to give them to three newspapers which he specified: the Palm Beach Post, the Sun Times and the Fort Lauderdale Sentinel. He personally called the papers and told them that the matters in the complaints needed to be investigated. He also told the reporters that the complaints had no official connection with the NAACP. He considered the three papers to be responsible, non-sensational publications and he had experience in the past with issuing press releases. On February 6, 1992 the Sun-Sentinel published a story with the headline, "ETHICS COMPLAINTS FILED", stating that an NAACP official filed ethics complaints alleging that Mary McCarty and Bill Andrews attended a $1000 a plate fund-raiser paid for by a group of bond brokers, and failed to disclose the gifts. Mary McCarty contacted the NAACP, and Leslie McDermott was chastised for involving the organization. He did not call the newspaper to demand a corrective article as he did not want to "add fuel to the fire". He avowed distress, however, that people associated the issue with the NAACP. Meanwhile, the Ethics Commission conducted its investigation and found that, indeed, Mary McCarty did not attend the event. That was a conclusion that should have been reached by Mr. McDermott prior to his filing the complaint. Instead, on the complaint form, he signed the following statement under oath: COMPLAINT THAT THE COMMISSIONER NAMED ABOVE, THEN A DELRAY BEACH CITY COMMISSIONER DID VIOLATE FLORIDA STATUTE 112 IN THAT THE COMMISSIONER ACCEPTED GIFTS VALUED IN EXCESS OF $100.00 AND FAILED TO REPORT SAME IN ACCORDANCE WITH STATE LAW. THE GIFTS WERE PROVIDED BY MEMBERS OF A BOND UNDERWRITING GROUP HEADED BY SMITH BARNEY. THEY INCLUDED: ROUND TRIP TRANSPORTATION ON A CORPORATE JET FROM WEST PALM BEACH TO ORLANDO AND BACK; AND, ROUND TRIP LIMOUSINE SERVICE FROM THE ORLANDO AIRPORT TO THE ORANGE COUNTY CONVENTION AND CIVIC CENTER AND RETURN TO THE AIRPORT; AND, A TICKET TO ATTEND THE $1000 PER PERSON FUND RAISER DINNER BENEFITING GOV. MARTINEZ AND FEATURING PRESIDENT GEORGE BUSH. THE FOREGOING GIFTS HAVE AN ESTIMATED VALUE OF $1350 TO 1500 WELL IN EXCESS OF THE REPORTING REQUIREMENTS. THE COMMISSIONERS FINANCIAL DISCLOSURE FORM FOR THE CALENDAR YEAR 1990 WHICH COVERS THE DATE OF THE SUBJECT EVENT ON FRIDAY APRIL 20 1990 SHOWS NO GIFTS RECEIVED. IN ADDITION TO COMMENTS MADE TO VARIOUS INDIVIDUALS ABOUT THE DETAILS OF THE TRIP, INCLUDING THE FACT THAT ALL EXPENSES HAD BEEN PAID BY THE BOND BROKERS, THE COMMISSIONER WAS OBSERVED AT THE EVENT BY NUMEROUS LOCAL OFFICIALS AND RESIDENTS. (Exhibit 1, Complaint dated February 2, 1992) Leslie McDermott did not ask Bill Andrews or Mary McCarty whether she attended the function. He did not contact anyone, including the sponsor of the event, who would likely have personal knowledge of her attendance. Instead, he relied on rumors and indirect reports, all which he knew were based on these tenuous connections: Bill Andrews used the term "we" in bragging about the trip. Mary McCarty frequently attended political events and was politically active. Mary McCarty and Bill Andrews, both Republicans (but not the only Republicans on the city council), often voted alike. Some unnamed persons overheard conversations which made them believe that Bill Andrews and Mary McCarty were on the trip together. Leslie McDermott's explanation that he released the complaint to the press so that an investigation could be conducted is simply not persuasive. He is an educated, articulate and experienced individual. He knew or should have known that public exposure of his complaint would injure the reputation of Ms. McCarty. Despite his own initial misgivings, Mr. McDermott allowed himself to be used by individuals who could only benefit from that injury. His failure, due to hubris or extraordinarily bad judgment, to make a reasonable attempt to check the veracity of the rumors, constitutes the reckless disregard by which malicious intent may be proven. In defending against the complaint and in pursuing relief in this proceeding, Mary McCarty has incurred costs and attorneys fees in the total amount of $12,876.55. Exhibit #4a), b), and c) appropriately itemizes the 50.9 hours and $2696.55 costs incurred. The hourly rate of $200.00 was stipulated as reasonable. Leslie McDermott contests the reasonableness of any time spent and costs incurred after the commission's order finding no probable cause was issued. Based upon the unrefuted testimony of Robert V. Romani, Esquire, an experienced litigator, past-president of the Palm Beach County Bar Association and member of the Board of Governors of the Florida Bar; and after considering relevant case law discussed below, I find that the hours and costs both before and after dismissal of the complaint are reasonable.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Commission on Ethics issue its final order awarding fees and costs in the total amount $12,876.55 to Mary McCarty from Leslie McDermott. DONE AND RECOMMENDED this 23rd day of August, 1993, in Tallahassee, Florida. MARY CLARK 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 23rd day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5168EC The findings of fact proposed by both parties are substantially adopted here, with the exception of the following findings proposed by Leslie McDermott. Paragraph 13. The "reasonable" appearance or belief as to Ms. McCarty's guilt is rejected as unsupported by the weight of evidence. Paragraph 15. The reason Mr. McDermott presents for signing the complaint is rejected as not credible, in the face of his inconsistent action in presenting the complaint to the press. Paragraphs 16-18 are rejected as contrary to the weight of evidence. COPIES FURNISHED: Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Kenneth D. Stern, Esquire Post Office Box 3878 Boca Raton, Florida 33427-3878 James K. Green, Esquire One Clearlake Centre 250 South Australian Avenue West Palm Beach, Florida 33401
The Issue The issues in this case are whether Petitioner, Gary P. Santoro (“Petitioner” or “Mr. Santoro”), undeservedly received a failed grade on the Construction Business and Finance Examination (“Examination”) for licensure as an air-conditioning contractor; whether any questions on the examination had more than one correct answer; whether the examination is unfair; whether there is transparency in the examination review process; and whether the examination grading process is arbitrary and capricious.
Findings Of Fact Mr. Santoro took the Examination on November 16, 2018. Petitioner failed the Examination because he scored less than 70 percent correct. The Examination contains 125 questions, 120 of which are scored. The other five are not scored and are considered “pilot” questions for potential use on future examinations. In order to pass the Examination, a candidate must obtain a score of at least 70 percent. All scored questions on the Examination are weighted equally. As a result of failing to pass the Examination, Petitioner was notified of his results. All questions on the Examination had a single correct answer. Cynthia Woodley, Ph.D., employed by Professional Testing, Inc. (“PTI”), as the chief operating officer, is an expert in psychometrics and exam development. She holds a master’s degree in vocational education and a doctorate in curriculum and instruction with a specialization in measurement. Her current position calls for her to manage a number of licensure and certification exam programs. She explained at length how specific questions become part of a professional licensure exam. To develop questions, her company brings in any number of subject matter experts, people actually employed in the professions being tested, and they help develop subject matter questions for a particular exam. That was the process used for development of the Examination in this matter. Once the subject matter experts are trained in exam question writing techniques, they write questions, which are reviewed by other subject matter experts to determine whether the questions are fair and understandable enough to be answered by prospective test takers. Generally, five subject matter experts review each question before it makes its way onto an exam. PTI measures the “P value” of the questions by determining what percent of individuals taking a given exam answer a particular question correctly. For example, a P value of .90 means that 90 percent of the people taking the exam answered a particular question correctly. PTI looks for a wide range of P values in its exam questions. If a P value is too low, say .40, the company might reexamine that question to determine whether it should be removed from future exams since fewer than half the people taking the exam answered it correctly. The business and finance portion of the exam is given to all contractors, regardless of their specialty, with the exception of pool service contractors. Here, Petitioner, a HVAC contractor was administered the same Examination as plumbing contractors, electrical contractors, general contractors, etc. Each of the 120 questions on the exam in this case was equally weighted. There were also five pilot questions inserted into the exam, which did not count towards the total score, but were included as test questions for future exams. Petitioner provided hearsay documents regarding computer hacking and computer glitches associated with some exams administered around the United States. However, he did not connect the articles submitted into evidence to the exam administered in this case or any exam administered by the Department in Florida. Dr. Woodley was familiar with the allegations of computer glitches in testing, but testified that the problems were with K-12 testing in schools, not with professional licensure exams, such as administered by the Department. Therefore, since the hearsay evidence was not linked to the exam at issue or similar professional licensure exams given in Florida, it is entitled to no weight in arriving at the decision in this case. Question BF 1290 has a single correct answer, which is answer “C.” Petitioner selected answer “B.” Petitioner was unable to demonstrate that the answer he selected was correct. Question BF 0473 has a single correct answer, which is answer “A.” Petitioner selected answer “C.” This question asks for an answer of general applicability. Petitioner’s claim that his answer is equally correct is based on a narrow exception in law. Accordingly, Petitioner was not able to demonstrate that the answer he selected was correct. Question BF 0162 has a single correct answer, which is answer “B.” Petitioner selected answer “C.” Petitioner was unable to demonstrate that the answer he selected was correct. Question BF 1691 has a single correct answer, which is answer “C.” Petitioner selected answer “D.” Petitioner was unable to demonstrate that the answer he selected was correct. Petitioner was unable to submit sufficient evidence to show that the Examination is unfair, that there is insufficient transparency in the examination review process, or that the examination grading process is arbitrary and capricious. Accordingly, he cannot prevail in his challenge to the Examination. Petitioner testified that he took and passed the HVAC contractors special license examination on his first attempt. He has taken the Examination on numerous occasions and is yet to be successful. He testified he studied hard for every administration of the exam, but just cannot reach the finish line successfully. While that is unfortunate, the evidence does not support that his failure to succeed on the Examination is the fault of the exam itself or of the Department either in its contracting to have the exam created or in the administration of the exam. From the way he conducted himself at hearing, Petitioner appears to be an intelligent, diligent, and successful individual in his HVAC business. For some unknown reason he has been unable to successfully complete the Examination. His persistence in retaking the Examination multiple times is admirable and should ultimately pay off with his successful passage of the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order upholding the Department’s Amended Grade Report finding that Petitioner failed to achieve a passing score on the Construction Business and Finance Examination, which he took on November 16, 2018. DONE AND ENTERED this 23rd day of August, 2019, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 23rd day of August, 2019. COPIES FURNISHED: Thomas G. Thomas, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Gary Peter Santoro Hometown Air & Services 8229 Blaikie Court Sarasota, Florida 34240-8323 (eServed) Ray Treadwell, General Counsel Office of the General Counsel Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Daniel Biggins, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed) Halsey Beshears, Secretary Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed)
The Issue Whether the Florida Department of Health’s (“Respondent” or “Department”) determination that Tallahassee Corporate Center, LLC (“Petitioner” or “TCC”) submitted a nonresponsive reply to the Department’s Invitation to Negotiate (“ITN”) No. 640:0040 is contrary to the Department’s governing statutes, rules, policies, or the solicitation specifications; and, if so, whether the decision was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The ITN The Department is a state agency that seeks space for administrative offices, a call-center facility, and claimant hearings. The Department currently leases office space from TCC, which lease expires on October 31, 2019. On July 19, 2017, the Department issued the ITN seeking vendors that could provide 135,815 square feet of office space for lease. The Department issued one addendum to the ITN on September 1, 2017, deleting a requirement that the space be contiguous within a single building. There were no challenges to the terms, conditions, or specifications contained in either the ITN or the amendment thereto.4/ Both TCC and TRV are potential lessors which submitted replies to the ITN. The ITN includes a provision expressly reserving the Department’s “right to negotiate with all responsive and responsible Proposers, serially or concurrently, to determine the best-suited solution.” (emphasis added). The term “Proposer” is defined in the ITN to mean “the individual submitting a Reply to this [ITN], such person being the owner of the proposed facility or an individual duly authorized to bind the owner of the facility.” This reservation of rights placed interested lessors on notice that only responsive proposers could be invited to negotiations. The Department seeks to lease space in either an existing building or a building to be constructed in the future. In the Introduction, the ITN describes the proposals requested as follows: The [Department] is seeking detailed and competitive replies to provide built-out office facilities and related infrastructure for occupancy by the [Department]. As relates to any space that is required to be built-out pursuant to this [ITN], see Attachment “A” which includes the [Department] Specifications detailing the build-out requirements. The proposed facility may be within an existing building or a non-existing building designed as a Build-to-Suit to meet the [Department] Specifications. The specifications in Attachment A provide the basic requirements for the potential leased space, including the required type, number, and square feet of each space (i.e., office, workstation, conference room, storage), as well as the voice and data requirements for each space. The ITN provides that Attachment A “is an integral part of this ITN.” Section III.A. of the ITN details the requirements for responsive replies, including documentation demonstrating control of the property, a floor plan to scale, and return of each ITN page with the proposer’s initials. In addition, for Build-to- Suit proposals, responsive replies must include the proposed site plan, and may include building renderings.5/ Section IV. provides the Lease Terms and Conditions, and requires replies to indicate whether the proposer will meet each term and condition by marking either a “Yes” or “No” option with an “X.” Section IV.B. provides that the space must be made available for occupancy on September 1, 2019. This section emphasizes the importance of timely occupancy, requiring submission from the Lessor to the Tenant Broker of items to assure same, such as the sample construction project schedule, documentation of construction inspections, a performance bond, and proposed and final floor plans. Section IV.B. is not limited in applicability to Build-to-Suit leases. In fact, Section IV.B. provides that, for build-to-suit leases, the lessor must also provide architectural design and construction plans to the Department of Management Services for prior approval. Section IV.G. is titled “Space Availability – Turn-Key Build Out,” and requires as follows: The State requires a “turn-key” build-out by the Lessor. Therefore, Proposer shall assume all cost risks associated with delivery in accordance with the required space program specifications detailed in Attachment A. Proposer agrees to provide a “turn-key” build-out in accordance with the space program specifications detailed in Attachment “A” following the [Department]’s approval of an architectural layout provided by the Proposer: YES or NO “Turn-key” is a term of art in the commercial leasing industry meaning to deliver a space to the lessee which can be occupied immediately. The turn-key requirement is applicable to both build-out of an existing facility and build-to-suit new construction. By the terms of the ITN, the requirement for a turn- key build-out applies to all proposers, and is not restricted to proposers offering a build-to-suit option. TCC’s Reply TCC submitted a proposal for an existing building, the very building in which the Department currently leases space for the functions described in the ITN. Item IV.G In its reply, TCC responded “NO” to the statement “Proposer agrees to provide a ‘turn-key’ build-out in accordance with the space program specifications detailed in this Attachment A following the [Department]’s approval of an architectural layout provided by the Proposer.” In the space between Items IV.G. and IV.H., TCC added the following typewritten language: 10 Year Term – TI Allowance capped at $7 psf ($3.50 psf beginning year 1/$3.50 psf after year 5) 15 Year Term – TI Allowance capped at $10 psf ($5 psf beginning year 1/ $5 psf after yr. 5). In an apparent effort to explain the interlineated text in its reply, TCC also submitted an “Additional Response” sheet with its ITN reply, which reads as follows: ITN:640:0400 Additional Response Attachment A/[Department] Specification As the current Landlord for the [Department], our response proposes a “Stay In Place” option. Under this option, we propose a Tenant Improvement Allowance in order for the [Department] to address any Tenant Improvements necessary. With [Department] currently occupying the space, it would be impossible to ask them to move out of its existing office space in order to meet the requested [Department] Specifications in Attachment A. A “stay-in-place” offer is also a term of art in the commercial leasing industry which references negotiations between an existing lessee and lessor for a new lease of the space currently occupied by the lessee. The terms of the ITN are clear: the Department is seeking to negotiate with all proposers which agree to meet its space program specifications. TCC’s representative, Todd Hakimi, testified (both in his deposition and at final hearing), that TCC’s reply offered a stay-in-place option, rather than a turn-key or build-to-suit lease. Mr. Hakimi further testified that he formulated the response to the ITN on his understanding that the space currently leased to the Department by TCC was satisfactory to the Department, thus no buildout of the space was necessary to comply with the ITN. Mr. Hakimi’s testimony is belied by TCC’s supplemental response explaining that it would be impossible to ask the Department to “move out of its existing office space to meet the requested Agency Specifications in Attachment A.” In the supplemental response, TCC admits that the Department is seeking space which meets specifications not met by the existing office space. TCC’s reply was nonresponsive. By responding “No” to Item IV.G., TCC indicated it would not comply with the Department’s space program specifications in Attachment A, which is an integral and material component of the ITN. Tenant Improvement Allowance Instead, TCC’s reply offered a Tenant Improvement Allowance (“TIA”), shifting the burden to the Department to meet its space program requirements, rather than providing a “turn- key” space on September 1, 2019. Moreover, TCC’s reply “capped” the TIA at a per- square-foot amount, essentially limiting the amount TCC would pay toward the space program requirements set forth in Attachment A. In doing so, TCC refused to “assume all cost risk associated with delivery in accordance with the space program specifications” as required by Item IV.G.6/ If accepted, Petitioner’s response would give TCC a competitive advantage over other responders who agreed to “assume all cost risk associated with delivery in accordance with the space program requirements.” Broker Commission Item IV.J., another mandatory lease condition, requires lessors to agree to execute a Commission Agreement, which was attached to the ITN as Attachment G, another integral and material component of the ITN: Proposer acknowledges review of the Commission Agreement (Attachment G). Proposer agrees to execute and be bound by the Agreement should the Proposed Space be selected by the [Department]. YES or NO The Commission Agreement includes a schedule for the commission rate based on the total aggregate gross base rent that could be paid ranging from 3.50 percent on the first $500,000 of base rent to 2.50 percent on the base amount of $8.5 million and over. TCC checked “YES” in response to Item IV.J., but contradicted that reply by adding “Agree to 2% commission.” Mr. Hakimi testified that he offered a two-percent commission because he viewed his reply to the ITN as a renewal of the current lease, and it is customary to give a lower broker commission for renewal than for a new lease. The Department was not seeking a renewal lease. The ITN sought proposals to meet the agency space program specifications either within an existing building or at a build- to-suit location. TCC refused to be bound by this material term of the ITN, thus TCC’s reply was nonresponsive. If accepted by Respondent, TCC’s lower broker commission rate would have given TCC a competitive advantage over other proposers. Control of Property The ITN also provided that to be responsive, each lessor was required to submit documentation demonstrating the lessor’s control of the property proposed for the leased space: Replies must completely and accurately respond to all requested information, including the following: (A) Control of Property (Applicable for Replies for Existing and/or Non-Existing Buildings). For a Reply to be responsive, it must be submitted by one of the entities listed below, and the proposal must include supporting documentation proving control of the property proposed. * * * The owner of record of the facility(s) and parking area(s) – Submit a copy of the deed(s) evidencing clear title to the property proposed. * * * The authorized agent, broker or legal representative of the owner(s) – Submit a copy of the Special Power of Attorney authorizing submission of the proposal. The Special Power of Attorney form was attached to the ITN as Attachment H, another integral part of the ITN. Section K of the ITN clearly states, “Attachment H . . . is required if submitting on behalf of owners.” Attachment D to the ITN was a Disclosure Statement which solicited from proposers information about the ownership of the property, including the name of the titleholder, as well as the titleholder’s social security number or federal employer identification number, as applicable. TCC’s reply contained a blank Attachment D. TCC’s reply included a deed identifying DRA CRT Tallahassee Center, LLC (“DRA CRT”), as the owner of the property offered for lease. TCC’s reply was executed by TCC President, Lyda Hakimi. TCC did not execute Attachment K or include an executed power of attorney to demonstrate that TCC has control of the property on behalf of DRA CRT. TCC owns DRA CRT, but the two are different legal entities. In order to demonstrate control of the property owned by DRA CRT, TCC was required to execute Attachment K or otherwise provide a power of attorney to demonstrate authority to bind the owner to TCC’s proposal. TCC’s reply did not demonstrate control of the property as required by the ITN. TCC’s reply was not responsive on this issue. Waivable Minor Irregularity TCC contends that its failure to include an executed power of attorney was a minor irregularity which should have been waived by the Department. TCC’s argument is twofold. First, TCC maintains that the Department had actual knowledge that TCC was DRA CRT’s agent because the Department was currently leasing the property from TCC. Second, TCC maintains that proposals by other responders failed to establish control of the property, but were nevertheless deemed responsive by the Department.7/ TCC’s first argument is not persuasive. As discussed in the Conclusions of Law, the undersigned’s role is not to make independent findings based on the evidence of record, but to determine whether the Department’s failure to waive the minor irregularity was arbitrary, capricious, or clearly erroneous. In support of its argument that the Department acted arbitrarily in its determination that TCC was nonresponsive on the issue of control of the property, TCC introduced, over strenuous objection, the ITN response from TRV and two separate responses from OAG Investment 3, LLC (“OAG”). TRV’s reply reveals TRV is the owner of the property. TRV’s proposal is executed by John McNeill as “Advisor” to TRV, and includes an executed Attachment H, Special Power of Attorney, from John Abernathy granting power of attorney to Mr. McNeill to act on his behalf regarding the ITN. TCC complains that TRV’s proposal does not demonstrate the relationship between TRV and Mr. Abernathy or establish Mr. Abernathy’s authority to grant a power of attorney on behalf of TRV. Thus, TCC argues, TRV’s reply suffers from the same defect as its own--failure to demonstrate control of the property--so the Department acted arbitrarily in failing to waive that nonconformity for TCC. Petitioner’s argument is not well-taken because the facts are distinguishable. First, as to TRV’s response, TRV is both the owner of the property and the proposer for the ITN. In contrast, TCC is the proposer, but not the owner of the property. Second, TRV’s reply documents, on Attachment D, establishes Mr. Abernathy’s authority “to conduct business as a representative of” TRV. TRV’s reply included the required deed evidencing ownership, as well as a completed Attachment D Disclosure, and Attachment H Special Power of Attorney. By contrast, in TCC’s reply, it neglected to complete either Attachment D or Attachment H. TCC made no effort to document the proposer’s authority to bind the property owner to the terms of the ITN. The facts relating to TRV’s reply are not sufficiently similar to TCC’s for the undersigned to conclude that the Department acted arbitrarily in failing to waive TCC’s nonconformity relating to control of the property. The same applies to the proposals from OAG. OAG’s reply for property on Barcelona Lane shows ownership of the property by the Townsend Mary D. Trust (“Trust”) and a purchase and sale agreement between the Trust and OAG executed by Mary Townsend on behalf of the Trust. TCC first complains that the Trust holds the property by a Quit Claim Deed, which “does not prove title or control.” Second TCC alleges that the reply does not establish Mary Townsend’s authority to execute the purchase and sale agreement on behalf of the Trust. As to OAG’s reply for the Mahan Drive property, TCC complains that the warranty deed identifies ownership of only a 30-percent interest in the property, and the purchase and sale agreement to OAG is from six named individuals, one of whom is noted as a trustee of an unidentified trust, and only three of whom have an ownership interest in the property based on the deed submitted. It is beyond the undersigned’s authority to determine whether OAG’s replies establish control of the property per the ITN specifications. The only purpose for which the TRV and OAG replies were admitted was to rebut the Department’s assertion that TCC’s reply was nonresponsive on the issue of control of the property. The factual differences between TCC’s documentation of ownership and control and those of the OAG proposals, do not support a finding that the Department acted arbitrarily in failing to waive the nonconformity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing Tallahassee Corporate Center, LLC’s Petition. DONE AND ENTERED this 31st day of May, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 31st day of May, 2018.
