Findings Of Fact The Respondent, K-Mart Corporation, d/b/a Waldenbooks, Store 1313 (Waldenbooks), hired the Petitioner, Timothy D. Wood, as a part-time bookseller trainee in April, 1985. Wood's initial pay was $3.35 an hour. Wood completed his training period in July or August, 1985, and became a part-time bookseller. Wood suffers from epilepsy. On five different occasions during 1985, Wood suffered various kinds of seizures while on the job at Waldenbooks. Waldenbooks' manager, Jane Burke, reacted kindly to Wood, allowing him to take as much time as he needed to rest before returning to his work. When Wood went back to work, usually a matter of minutes later, he was able to function normally. Burke did not downgrade Wood's performance evaluations on account of the seizures and did not report the seizures to Waldenbooks because she did not view then as affecting his performance. Burke appraised Wood's performance in accordance with Waldenbooks' personnel policies. Based on the overall "good" evaluation she gave Wood in September, 1985, Wood got a pay increase to $3.55. However, in "Loss Prevention" Wood was rated just "marginal." On November 4, 1985, Wood got a "Performance Discussion Record" for company policy violations involving improper processing of a credit card sale. On November 14, 1985, Wood received another Performance Discussion Record for a company policy violation involving the improper handling of a cash sale and the inadvertent offending of a customer by inappropriately asking if the customer was retired. This time Burke warned Wood: "Further violations of any of the loss prevention policies and cash handling procedures could result in possible termination." On November 24, 1985, Wood received another Performance Discussion Record for a company policy violation involving the improper destruction and disposal of valuable inventory (books) resulting in a monetary loss to the company. Through March, 1986, Wood was not evaluated and received no raises or performance discussion records. Burke erroneously believed that Wood was not due for a reevaluation during this time. Actually, Waldenbooks was expecting a reevaluation for the period September 1 to December 1, 1985, and December 1, 1985, to March 1, 1986. Burke was notified of her error by April 2, 1986. Meanwhile, on Sunday, March 23, 1986, a day Wood was scheduled to work, Wood had double grand mal seizures and, in the course of the seizures, severely bit his tongue. Wood was unable to talk, much less work. Wood's mother notified Burke by telephone and advised her also that Wood would be seeing his doctor the next day. The doctor advised Wood not to work for a few days. Wood followed the doctor's advice, and his mother again called to notify Burke. Wood returned to work on Thursday, March 27, 1986. Because Wood was a part-time employee who did not get sick leave, Burke had no need to and did not report on or explain Wood's absences to Waldenbooks. On April 2, 1986, Burke completed two belated performance appraisals on Wood. Both rated Wood "good" overall, and Burke recommended Wood for pay raises to $3.66 an hour effective December 1, 1985, and to $3.77 an hour effective March 1, 1986. However, in light of the three performance discussion records Wood got in November, 1985, the performance appraisal for the period from September 1 to December 1, 1985, again rated Wood "marginal" in Loss Prevention and noted that, during the appraisal period, Wood was "on probation for violation of Loss Prevention policies." Wood commented on the appraisal: "I totally agree about the concenous [sic] of this performance appraisal." The performance appraisal for the period from December 1, 1985, to March 1, 1986, noted improvement and rated Wood "good" in the area of Loss Prevention. On April 22, 1986, Burke's assistant manager called Burke at home to tell her that $200 worth of magazines to be returned to a distributor for credit were missing. 1/ Burke went to the store and called each of the three employees on duty, one of whom was Wood, individually to the office at the back of the store to ask them whether they had thrown the magazines away. The first two denied it. Burke then confronted Wood with the situation and asked Wood if he threw away the magazines. Wood answered, "yes, I believe I did." Burke sent Wood back up front to work and consulted with some of her superiors. A short time later, Burke again called Wood back and notified him that he was being terminated because he had caused the loss of magazine credit and had "repeatedly violated loss prevention policies [the November, 1985, performance discussion records] resulting in loss to the company [the loss of magazine credit]." Burke told Wood she was sorry she had to terminate him but that she had the support of her superiors. It was not proved that Burke and Waldenbooks discriminated against Wood or terminated him on the basis of his epilepsy. For unexplained reasons, Waldenbooks did not produce the "Loss Prevention Hotline" memo which Burke testified she sent to the company to report the $200 credit loss either before or at final hearing (although she testified that a copy probably was in her office at the local store.) Nor was it explained why Waldenbooks did not produce the "return list" which Burke testified was the source of her information that the $200 worth of magazines were missing. (Burke testified that she had not retained a copy of the "return list" but that a copy might be in Waldenbooks' headquarters.) These two documents would have helped to refute Wood's argument that the loss of valuable magazines was a fabrication and pretext for his termination, and Waldenbooks' failure to produce them or explain its failure to produce them raises suspicions. But, in the end, Wood's case turns on the comparative credibility and reliability of his (and, to some extent, his parents') testimony versus Burke's testimony. Based on careful consideration of the testimony and demeanor of all of the witnesses under questioning, Burke's testimony is found to be the more credible and reliable despite Waldenbooks' failure to produce, or explain the failure to produce, the "Loss Prevention Hotline" memo and the "return list." It is found that Wood did discard magazines that would have entitled Waldenbooks to a credit on their return and that Waldenbooks, through Burke, terminated Wood based on this and other company loss prevention policy violations.
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 Timothy D. Wood. RECOMMENDED this 29th day of June 1988 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 29th day of June, 1988.
Findings Of Fact Based on the evidence received at the January 18, 1989, hearing, I make the following findings of fact: Petitioner occupies 17,500 square feet of office space in two buildings in downtown Fort Lauderdale. One of these buildings is located at 105 East Broward Boulevard. It houses Petitioner's local Job Service of Florida office and the office's approximately 50 employees, including Jo Ann Gibson, who has managed the office since February, 1988, and her assistant, Irving Haber. On an average business day, 200 or so members of the public pass through the building to take advantage of the employment-related services offered by the office. The other building has a street address of 108 Northeast 1st Avenue. Fourteen employees of the Broward County tax collection field office of Petitioner's Bureau of Unemployment Compensation and their supervisor, Leon Liebman, as well as five other Department employees, work in this building. The two buildings are a distance of 30 to 35 yards from one another, but they are connected by a covered walkway. Between the two buildings also lies a common parking area for the employees of both buildings. Transients frequently gather in the parking area during non-business hours and often leave behind broken glass and other litter when they depart. There are four restrooms in each of the buildings: one for female employees; one for male employees; one for female members of the public; and one for male members of the public. A part-time, OPS Department employee used to work four hours each business day performing janitorial services in and around the buildings. In 1987, Petitioner contracted with Respondent to perform these services. There was dissatisfaction with Respondent's performance; however, no formal complaint was lodged against Respondent during the term of the contract. Therefore, despite its less than satisfactory performance, Respondent was awarded a second one-year contract to perform these services because it was again the low bidder. This second contract, which Petitioner is now seeking to cancel, expires June 30, 1989. It provides, however, that it "may be cancelled by either party by giving prior written notice of thirty (30) days to the other party." The contract further provides: In the event of violation or breach of terms of this contract or default by the contractor, and in addition to any other remedies provided by terms of this-contract or federal, state or local laws, the Florida Department of Labor and Employment Security reserves the right to recourse to the default procedures and remedies set forth in Rule 13A-1.06(4), Florida Administrative Code. Petitioner is attempting to invoke this latter provision in the instant case. The scope of the services Respondent is required to perform is described in paragraph VI of the contract as follows: Scope: The following tasks are routine janitorial duties to be performed as necessary or as directed by Jo Ann Gibson, Office Manager. DAILY (Monday - Friday) OFFICE AREAS Empty all waste paper containers. Empty and clean all ash trays. Dust all tables, desks, filing cabinets and work surfaces. Dust and remove all finder [sic] prints and marks from ledges, door casings, doors, window sills, walls, ceilings, and glass partitions. Remove floor and carpet stains (coffee, gum, scuff marks, etc.) and vacuum all carpet. Sweep and damp mop all non-carpeted areas. Replace burned out light bulbs (furnished by owner) Clean heat and air conditioning vents. Properly arrange office area and turn off lights upon completion of work. REST ROOMS AND LOUNGES: Wipe down urinals, toilets, and plumbing fixtures and cleaner/disinfectant. Remove dust, fingerprints, and marks from walls, doors, ceilings, mirrors, and stall partitions. Mop floors with cleaner/disinfectant. Restock with soap, towels, and tissue paper (furnished by owner). STAIRWAYS, HALLWAYS, CORRIDORS, ELEVATORS: Sweep and mop stairs and landings daily. Clean and polish all composition flooring. Remove dust, hand prints, and marks from walls, doors, ceilings, handrails, vents, grills, and bannisters. Replace burned out light bulbs (furnished by owner) OUTSIDE AREAS: Police lawn, flower beds, and parking lot. Remove weeks [sic] as necessary. Sweep sidewalks. PERIODIC REQUIREMENTS AND SERVICES (Beginning with contract period) AS NEEDED: (or as directed by Office Manager) Spot clean carpet. Replace waste paper container liners. Spray buff heavy traffic areas. Strip, seal, and wax all non-carpeted floors and landings. WEEKLY: Company representative to have personal contact with Office Manager. MONTHLY: Vacuum all upholstered furniture. Dust light fixtures and window blinds. Clean all interior and exterior glass. Remove all debris from roof. QUARTERLY: Strip and wax all non-carpeted floors. Shampoo or steam clean, as appropriate, all carpet. Clean and sweep parking lot. MISCELLANEOUS REQUIREMENTS AND SERVICES Complete supervision of the work force by a qualified supervisor furnished by the contractor. Public liability and workers' compensation insurance as required. All cleaning supplies and equipment shall be furnished by the contractor. All rest room supplies (i.e., soap, tissue paper, towels, etc.) shall be furnished by owner. All janitorial storage areas are to be kept clean and neat. Outside doors are to be kept locked while work is in progress, during other than normal business hours. Personnel will not be allowed to bring any items (other than job-related items) into the building. Personnel will not be allowed visitors, children, etc., in the building during the work period. All work shall be completed between tee hours of 5 p.m. and 8 a.m. and weekends. Vendor is liable for security of all building contents during work hours which are defined in item 9. above. During the term of this second contract, except for emptying wastebaskets and ashtrays, and arranging the office and turning off the lights upon leaving, Respondent has failed to perform on a daily basis as required the duties described in paragraph VI A-D of contract. Some of these tasks have been completed only occasionally, oftentimes after a complaint has been made by Gibson, Haber, or some other Department employee. Other tasks have not been done at any time during the contract period. Of particular concern has been the condition of the restrooms. They have been disinfected and cleaned on only an irregular basis. With respect to the "periodic requirements and services" referenced in paragraph VI the second contract, Respondent has not always, when needed during the term of the contract, spot cleaned carpeted areas, spray buffed heavy traffic areas to remove scuff marks, and stripped, sealed, and waxed non- carpeted areas. During this time frame, Respondent has also failed to dust the light fixtures and clean all interior and exterior glass every month, and to strip all non-carpeted areas and shampoo or steam clean all carpeted areas every three months. Furthermore, neither Castagna, nor any other representative of Respondent has had weekly contact with Gibson as contemplated by the contract. Regarding the "miscellaneous requirements" set forth in paragraph VI of the contract, specifically those prescribed in subsections 1 and 9 thereof, contract work has frequently been performed in the morning after 8:00 a.m. on business days by an unsupervised employee of Respondent's. In addition, except for disinfectant, Respondent uses Petitioner's, not its own, cleaning supplies. This is done, however, with Gibson's knowledge and consent. On or about September 26, 1988, Petitioner served on Respondent a written Complaint to Vendor in which it complained about Respondent's "[u]nsatisfactory performance" of its contractual obligations. The complaint contained the following statement: The offices are in deplorable condition. The infrequent and haphazard cleaning of the restrooms could be considered a health hazard. All that is being routinely done is the emptying of waste baskets. Under the daily requirement of the contract, numbers 3, 4, 5, 6 and 8 are completely ignored and none of the Periodic and Miscellaneous requirements are being met. Joe Castagna has been called twice and no one has shown up. A janitor showed about 9:00 a.m. and emptied waste basket[s], nothing more. The contract states "all work shall be performed between the hours of 5 PM and 8 AM and weekends." Services must be brought into compliance with contractual requirements within ten (10) calendar days of receipt of this complaint, and maintained satisfactorily for the duration of the contract. Failure to do so may result in a declaration of default in accordance with Rule 13A-1.006(4), Florida Administrative Code, cancellation of the contract, reprocurement of these services, charging all reprocurement costs and costs of cover to Bright Maintenance Inc. and removing Bright Maintenance Inc. from the bid list of the Department of Labor and Employment Security until such charges are paid. Following the issuance of this written complaint, there was some improvement in the contractual services provided by Respondent. They did not improve, however, to such an extent that Respondent was in substantial compliance with all of the requirements of the contract. In any event, Respondent's performance soon reverted to its abysmal pre-written complaint level. Accordingly, in response to Respondent's continuing failure to substantially comply with the terms of its contract, Petitioner, by letter dated October 18, 1988, provided Respondent with written notice of Petitioner's intention to find Respondent in default, cancel the contract, and obtain janitorial services from another source. The services rendered by Respondent subsequent to the issuance of this notice have remained deficient.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding Respondent in default for failure to meets its obligations under its contract with Petitioner; cancelling the contact; requiring Respondent to pay any reprocurement costs and costs of cover; and removing Respondent from its vendor list until such costs are paid by Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida this 10th day of February, 1989. 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 10th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-6207 The following are my specific rulings on the findings of fact proposed by Petitioner: Accepted and incorporated in this recommended order. Accepted and incorporated. Accepted, but unnecessary, and therefore not incorporated. Accepted and incorporated. First sentence: Accepted and incorporated, except to the extent that it suggests that Respondent has not on a daily basis arranged the furniture and turned off the lights upon leaving the buildings. To the extent that this proposed finding so suggests, it is unsupported by the evidence. Second sentence: Accepted and incorporated. Third sentence: Accepted and incorporated, except insofar as it reflects that spray buffing has always been done by Respondent when needed; that Respondent has not vacuumed the upholstered furniture each month; and that Respondent has not cleaned and swept the parking lot every three months. Insofar as this proposed finding so reflects, it is unsupported by the evidence. Accepted and incorporated, except to the extent that it indicates that Respondent has not kept clean and neat the janitorial storage area. To the extent that this proposed finding so indicates, it is unsupported by the evidence. COPIES FURNISHED: David J. Busch, Esquire The Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 Joseph Castagna, President Bright Maintenance Inc. 160 South University Avenue, Suite A Plantation, Florida 33324 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
Findings Of Fact Respondent was licensed for the years 1977 and 1978 with the current license No. 080018 valid until 1 January 1979. During an inspection of Adams Rooming House in Belle Glade, Florida on 20 April 1977 only one fire extinguisher was located on each floor of the two floors used for rental units, numerous extension cords running from the same outlet were observed in the rental units, in the public toilets on each floor the bulbs were missing from the lighting fixtures, screens on windows were torn or missing, window was missing in toilet, doors on toilet split, no designation of sex on any bathroom, some windows in units boarded up with full panel doors, other windows had torn screens and broken jalousies, trash, junk and garbage littered on ground in vicinity of dumpster, and there were areas on stairways, landings and porch with railing missing. Respondent was notified of these violations. At an inspection on November 14, 1977 the proper number of fire extinguishers were present but two were empty. There was a direct conflict in the testimony regarding the fire extinguishers with neither witness saying how he ascertained the extinguisher empty or not empty. Accordingly, this alleged violation will be disregarded hereafter in this Recommended Order. At this inspection all of the other violations previously noted were still extant and some doors were also boarded up. No windows had both good screens and unbroken panes. Respondent was notified of these violations. On January 3, 1978 another inspection was conducted in company with Gilbert Adams. All violations previously reported were still uncorrected at this time. The premises were again inspected January 24, 1978 and all violations previously found remained uncorrected. At an inspection on March 8, 1978 the fire extinguishers had been recharged. When inspected again on April 10, 1978 the violations were still uncorrected. On April 25, 1978 an inspection was conducted in company with Adams. At this inspection some screening had been replaced, some windows and railings corrected, the grounds around dumpster had been cleaned, the doors to the bathrooms had been repaired and they had been designated for use by sex. However, all doors and windows were not corrected, some windows were still fully boarded up, bulbs were missing from fixtures in bathrooms, some railings were still loose, and the basic violations remained but not as many as before. On 25 January 1978 (Exhibit 2) Respondent executed a stipulation in which he agreed to pay a civil penalty of $25 and to correct all the violations previously reported within 30 days. The inspection conducted on 8 March was the follow-up inspection to ascertain if the violations had been corrected pursuant to the stipulation. Respondent contends that the rooming house caters principally to transients and that every time he puts bulbs in the bathrooms they are removed by the tenants; that tenants and passersby throw trash at the dumpster rather than put the trash in the dumpster; that he has a man who does repairs and cleanup at the rooming house; that he can't keep screens in either the unit windows or the bathrooms; that some tenants asked him to have their window boarded up to provide greater security; and that tenants disregard the sex signs placed on the bathrooms and will use whichever bathroom is vacant. Respondent does not visit the units frequently but does come to collect rent when due. He also contends that it is virtually impossible to keep tenants from running numerous extension cords from the same fixture. This is undoubtedly true if there are insufficient outlets in the rental units. Additionally, Respondent testified that he has the walls washed occasionally and provided paint to one tenant who wanted to paint his unit. He further stated that the units have been painted but the frequency of this painting was unclear. Proposed findings of fact submitted by Petitioner and Respondent have been considered. Those inconsistent with the facts noted above were not supported by testimony deemed credible. Those proposed findings not included herein were deemed immaterial to the results reached.
The Issue The issues are whether Respondent is guilty of making misleading, deceptive, or fraudulent representations in or related to the practice of contracting, in violation of Section 289.129(1)(c), Florida Statutes; mismanagement or misconduct in the practice of contracting that causes financial harm to a customer, in violation of Section 489.129(1)(h)2, Florida Statutes; failing to comply with any of the provisions of Chapter 489, Part I, or a rule or lawful order of the Construction Industry Licensing Board, in violation of Section 489.129(1)(j), Florida Statutes; abandoning a construction project, in violation of Section 489.129(1)(k), Florida Statutes; committing fraud or deceit in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes; two counts of committing incompetency or misconduct in the practice of contracting, in violation of Section 489.129(1)(n), Florida Statutes; and failing to satisfy, within a reasonable time, a civil judgment obtained against him, or a business entity that he has qualified, and related to the practice of contracting, in violation of Section 489.129(1)(r), Florida Statutes. If Respondent is guilty of any of these violations, an additional issue is what penalty should be imposed.
Findings Of Fact Respondent is a certified general contractor, holding certificate number CR C016649. He has been continuously certified since 1980 and has been licensed since 1988 as the qualifier of Dunbar Development, Inc. On August 19, 1994, Carla and Vernon Prevatt entered into a contract with Dunbar Development, Inc., for the construction of a residence. The contract calls for Dunbar Development, Inc. (Dunbar), to construct the "Horizon" model home on two platted lots for the sum of $73,395 plus an additional $7400 for Addendum 2. The contract permits Dunbar to cancel the contract if the Prevatts timely apply for a mortgage, but are denied. However, in such event, the contract requires Dunbar to return to the Prevatts all of their money. The contract acknowledges that the Prevatts paid Dunbar the sum of $1500 at the time of entering into the contract. A handwritten note states: "June 06, 1995—Rec'd $17,000.00 ck no. 16655 to initiate construction application for permits & building." Although the contract was originally signed by John Danzy, as "authorized representative" for Dunbar, this handwritten note bears the initials, "WB." The contract does not contain Respondent's certificate number. The contract does not contain a completion date. The contract provides that Dunbar will "commence construction . . . after full down payment and mortgage financing is received" and "will complete the same as soon as practicable, subject to the availability of labor and supplies [and] delays not within the control of [Dunbar]." Another clause in the contract states that Dunbar shall complete construction within two years of the date of the contract. On August 30, 1994, the Prevatts applied for a construction mortgage loan with the First Bank of Clewiston. The bank processed the loan application without any delays or problems. However, there was a substantial delay not attributable to the Prevatts or Respondent in obtaining an appraisal. The appraiser completed the appraisal before March 5, 1995, but probably not much prior to that date. By letter dated March 5, 1995, from Dunbar's financial officer to the Prevatts, Dunbar acknowledged the receipt of the appraisal and proposed a draw schedule totaling $80,795. The first payment under the draw schedule was $18,500 for "applicable fees and permits, plus, the plylon engineered foundation and engineered septic field construction initiation." The policy of First Bank of Clewiston is to match the value of the work to the payments to the contractor. The first payment due under Dunbar's draw schedule called for a payment substantially in excess of the value of the goods and services rendered. However, the bank acceded to the schedule and delivered a check dated June 6, 1995, in the amount of $17,000 payable jointly to the Prevatts and Dunbar. As Dunbar had done with the $1500 down payment received at the time of the execution of the contract, Dunbar deposited the $17,000 check and received payment of these funds. On behalf of Dunbar, Respondent hired Johnson-Prewitt & Associates, Inc., in early November 1995, to prepare the engineering drawings for the septic tank and foundation. These materials are specific to the Prevatts' homesite. By invoice dated November 13, 1995, Johnson-Prewitt & Associates, Inc., invoiced Respondent at Dunbar a total of $1700 for the completed work. After a credit of $700, the outstanding balance was $1000, which remains unpaid. From 1994 through 1995, Respondent, on behalf of Dunbar, provided information to Alpha Engineering, which was retained to prepare the plans for the Horizon model that the Prevatts were building. Most of this work was for the prototype Horizon home, but the work reflected by an invoice dated March 16, 1996, was exclusively for the home to be built for the Prevatts. Respondent and Dunbar never paid this invoice and never picked up the plan revisions that were the subject of this invoice. In fact, Respondent and Dunbar never commenced construction of the Prevatts' home and refused to return any portion of the $18,500 that the Prevatts paid to Dunbar. Although the bank never made any additional disbursements, the Prevatts nevertheless owed the bank the $17,000 disbursed as the first draw and, at the time of the hearing, had paid the sum of $6522.96 in interest and closing costs on this loan. With two checks totaling $2800 that, in June 1995, Yvonne Bushnell delivered to Respondent, on behalf of Dunbar, Ms. Bushnell entered into a contract with Dunbar for the construction of a residence. After Dunbar declined to construct a house or return the money, Ms. Bushnell filed an action against Respondent and Dunbar in Lee County Court on January 31, 1997. On March 12, 1997, the court entered a default judgment against Dunbar Developing, Inc., for the sum of $2800 and costs of $79.50. Following entry of the judgment, on September 14, 1998, Ms. Bushnell and Respondent agreed to settle the matter with the payment of $1600. However, upon payment of only $800, Respondent obtained Ms. Bushnell's signature on a letter dated September 14, 1998, to Petitioner acknowledging the full settlement of the case. Respondent then proceeded to obtain court issuance of a satisfaction when Ms. Bushnell refused to sign a satisfaction, absent payment of the remaining $800. By Order to Set Aside Settlement Agreement entered November 24, 1998, the court reinstated the original judgment. The judgment remains unsatisfied.
Recommendation It is RECOMMENDED that the Construction Industry Licensing Board enter a final order revoking Respondent's certificate as a general contractor and imposing an administrative fine against him of $4000. DONE AND ENTERED this 6th day of May, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 6th day of May, 1999. COPIES FURNISHED: Paul F. Kirsch, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 P. Michael Villalobos Sussman Law Group, P.A. 1375 Jackson Street, Suite 201 Fort Myers, Florida 33901 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
Findings Of Fact Respondent, Mark O. Holland, is a licensed registered building contractor holding license number RB 0039443. Respondent was licensed at all times material to this action. Sometime around June 19, 1986, Respondent entered into a contract with Mrs. Mary Sue Thames. Ms. Thames resided in Tennessee. The contract covered Ms. Thames' partially burned out home located at 528 Dement Circle, Panama City, Florida. Respondent was to rebuild the damaged portions of the home and to build an addition onto the home. The contract improvements were to be completed within sixty days of the contract date. The contract contemplated installment payments by Mrs. Thames, by September 5, 1986, she had paid $15,000.00 of the total contract price of $17,300.00 to Respondent. The remaining $2,300.00 was to be paid upon completion of the job. Mrs. Thames became concerned that the job was not progressing in a reasonably timely manner in September 1986 when she visited the job site from Tennessee. She observed that "nothing was done" even though the sixty day contract period had expired. Suppliers were removing items from the job that Respondent had not paid for under the contract. Mrs. Thames throughout the job had telephoned the Respondent weekly to check on the progress. Respondent would assure Mrs. Thames that he would "get right on it" and finish the job. Due to Respondent's assurances, Mrs. Thames elected to stay with Respondent so that he could complete the contract. Respondent never substantially performed the job although he did perform part of the contract. Between September 1986 and January 1987, Mrs. Thames in an effort to get the job finished, paid for supplies and materials that Respondent was contractually obligated to purchase. She paid for sheet rock, vinyl, carpet and doors. Respondent had told Mrs. Thames that he had no money to finish the job and that if she would purchase those materials he could finish the job. Mrs. Thames knew the contract obligated the Respondent to furnish the materials she purchased but was trying to work with the Respondent. The effort did not pay off. Respondent had in effect abandoned the job. As stated earlier, Respondent did not complete Mrs. Thames' job. In March 1987, Mrs. Thames' family assisted her in obtaining other subcontractors and suppliers to complete the job. She incurred costs of $8,000.00 to these subcontractors and suppliers, an amount less than the amount already paid to Respondent. Mrs. Thames testified that at least two subcontractors have not been paid by the Respondent those being Stephens Heating and Air Conditioning and M.D. Stewart Plumbing Company. Mr. Lester Stephens, owner of Stephens Heating and Air Conditioning subcontracted with the Respondent. Stephens' company roughed in the central ducts system valued at $700.00 on September 1, 1986 and as of September 27, 1988, had not been paid by Respondent. Coastal Insulation of Northwest Florida, Inc. filed a lien against Mrs. Thames' property as a result of Respondent not paying for supplies. The lien was apparently discharged by Respondent. Mr. Richard Dodson confirmed the testimony of Mrs. Thames. Mr. Dodson added that in addition to the $8,000.00 Mrs. Thames paid to complete the job, she also incurred hotel and travel bills. She also lost approximately 1 - 1/2 years worth of rental income on the house because of Respondent's misconduct and abandonment of the job. Respondent was disciplined by the Panama City Beach Board of Examiners on September 10, 1987 for misconduct and violations of the Building Regulations and Ordinances of the City of Panama City Beach during the Thames job. Respondent's competency card was revoked by the Board. Respondent has never refunded any of the contract price to Mrs. Thames.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That an administrative fine in the amount of $1,000.00 be levied against Respondent. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2489 The facts contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Tectonics Section Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark O. Holland Route A, Box 366 Youngstown, Florida 32466 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue for consideration in this case is whether the Department’s withdrawal of its request for proposals on lease number 790.0068, of property located in Clearwater, Florida, was illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Sometime prior to February 18, 1998, the Department of Business and Professional Regulation issued a Request For Proposal for lease number 790.0068 for approximately 4,137 square feet of office space within a specified portion of Pinellas County, Florida. The lease was to be for a period of seven years, to begin on September 1, 1998, and to contain a provision for five one-year renewals thereafter. Bids were to be opened on March 24, 1998. Only two proposals were received. One was from Dr. Alan Felker, a Petitioner herein, and the other was from D.C.S. Real Estate, Inc. At the opening, on March 24, 1998, both proposals were reviewed for responsiveness consistent with the requirements of the Department of General Services’ Real Property Leasing Manual, and an initial determination made that both were responsive. This initial review for responsiveness was not made in detail, however, but included only a check to see that all required documents and information areas were included. The leasing manual provides that in general, the agency soliciting bids for a lease has to accept the representations made by the bidder at face value. If a later check shows the representation was inaccurate, the lease provisions can be amended to conform to the facts as they exist. The Department of Management Services requires all properties to be checked for size conformity. The office space offered by D.C.S. is currently occupied by the Respondent under a prior lease which was to expire and be replaced by the lease under proposal. Notwithstanding that the request for proposal called for approximately 4137 square feet of space, plus or minus three percent, (no less than 4,013 nor more than 4261 square feet, excluding rest rooms, mechanical rooms stairwells, etc.), a floor plan of the existing facility submitted with the proposal by D.C.S. reflected the existing offices encompassed 4102 net square feet, with the existing toilets outside the confines of the leased space. The request for proposal called for restrooms to meet the requirements of the Americans with Disabilities Act of 1990 and of Section 553.604(12-13), Florida Statutes, dealing with accessibility by handicapped persons. Rest rooms to be provided must include, for men, one public and two staff water closets, one public and two staff urinals, and one public and one staff lavatory with mirror. The women’s facilities must include one public and two staff water closets and one each lavatory with mirror for the public and staff. The request for proposal was silent as to how these facilities were to be configured - whether separate facilities must be furnished for both the public and the staff, or whether both could be included in one facility. By letter dated March 23, 1998, Daniel Slesser, president of D.C.S., sent the Department an amended floor plan for its facility proposing to cut two doors through from the existing facility to the area of the private ADA compliant rest rooms by taking a closet and a portion of an existing office and making hallways thereof. It is still impossible to tell, even from the amended floor plan, whether the public and staff rest facilities will be separate or combined. Upon receipt of the bid package from the Department, Mr. Taylor went to the existing site provided by D.C.S. and measured the outside dimensions of the facility which D.C.S. represented as being 41.7 feet by 97.9 feet. His measurement, subtracting the thickness of the concrete block of the wall, the air space and the thickness of the sheet rock, reflected the interior width of the building to be 40.5 feet. Because he could not get into the building to measure, Mr. Taylor accepted D.C.S.’s length measurement of 97.0 feet. These two measurements reflected an interior square footage of 4,009 square feet or less, if the 97.9 foot length also were to be reduced by 9 inches. This would result in less than the minimum 4,013 square foot area required. Notwithstanding Mr. Taylor’s calculations, so much of this procurement file as related to the square footage of the property was forwarded for evaluation to Randall Baker, general services manager in the Department of Management Services’ Bureau of Real Property Management. Mr. Baker reviewed the floor plan submitted with the proposal, and based on the plan, accepting the given dimensions, arrived at an area of 4102 square feet. He could not say whether the dimensions he used were the inside or the outside dimensions. According to Mr. Baker, a bid can be deemed unresponsive at or after bid opening. Square footage is an item which could render a bid non-responsive. From his review of the file, the plans submitted, Baker cannot tell if the dimensions given by D.C.S. are correct. However, when the Department withdrew its RFP on this procurement, the issue of square footage at this point became moot. Mr. Baker also looked at the requirements for rest rooms contained in the request for proposals and concluded the documentation was unclear as to what the current landlord had to do regarding bathrooms. The Request for Proposal, at page 28 of the proposal package, states that if the current landlord is awarded the bid, he must provide private restrooms inside the office. The restroom requirements found in paragraph 16 of the request for proposal on page 21 thereof, are silent on the location of the facilities. Mr. Baker was of the opinion that if the page 28 requirements were pertinent to the current landlord, D.C.S., and the page 21 requirements applied to all other bidders, it would give an unfair advantage to the existing landlord. An independent review of those provisions results in the conclusion that the page 21 requirements are not at all clear as to their application. In any case, after Mr. Baker reviewed the request for proposal, he concluded that it was not clear and he recommended that in the absence of a clarification, the Department reject all bids and re-bid the lease.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order rejecting all proposals and that the Department thereafter re-advertise this procurement utilizing clear and unambiguous requirements. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: David A. Theriaque, Esquire 909 East Park Avenue Tallahassee, Florida 32301 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0700 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0700
