Findings Of Fact The Respondent, Department of Corrections ("Department"), conducted the bid opening for the proposed award of lease number 700:0487 on June 27, 1989. The bids submitted by Petitioner, Miami International Commerce Center ("MICC"), and Intervenor, Luis Sanchez ("Sanchez") were the only two timely responses received to the bid solicitation for this lease. At the bid opening, the Department rejected MICC's bid on the grounds that it was unresponsive. The Department contends that MICC's bid was not responsive because: The map included in the proposal form on which the bidder was supposed to depict the location of the project was not included as an attachment to the package submitted. However, the MICC bid package did include a map from which the location of the project could easily be determined. The package submitted did not include adequate evidence of compliance with the energy performance index. The package submitted did not include a clear photo of the building demonstrating that the building was "dry and measurable". Mary Goodman, the Chief of the Bureau of Property Management for the Department of General Services, was called as a witness by the Department to testify regarding MICC's bid submittal. Ms. Goodman has been Chief of the Bureau of Property Management for 18 years and has been involved in leasing for state projects since 1958. She drafted the proposal form and the schedule of required attachments thereto. In September of 1988, she sent a letter to the state agencies involved in leasing (including the Department) advising them as to the mandatory nature of the proposal form and the need to insist upon strict adherence to the requirements set forth in the proposal. This directive was applied by the Department in rejecting MICC's bid. After testifying regarding the deficiencies in the MICC's bid submittal, Mrs. Goodman reviewed the energy performance certification included as part of the Intervenor's submittal package. Mrs. Goodman testified that the certification letter included in that package was inadequate, and therefore, the Intervenor's bid was also nonresponsive. Both the bid submitted by Petitioner and the bid submitted by Intervenor failed to include acceptable energy performance certifications and were therefore nonresponsive.
Recommendation Based upon the foregoing, it is RECOMMENDED that both bids submitted in connection with the proposed award of Lease No. 700:0487 be deemed nonresponsive and the Department of Corrections rebid the lease. DONE and ENTERED this 25th of August, 1989, at Tallahassee, Florida. J. STEPHEN MENTON 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 25th day of August, 1989. APPENDIX The Petitioner has filed a Proposed Recommended Order which does not comply with the format anticipated in Rule 221- 6.031, Florida Administrative Code. However, the undersigned has reviewed the Proposed Recommended Order and it has been considered in the preparation of this Recommended Order. The first two pages of the Proposed Recommended Order consist of background information and quotes from the bid documents. These two pages do not constitute proposed findings of fact. Page three of the Proposed Recommended Order includes proposed findings of fact and they have been adopted in the Findings of Fact set forth above. Page four of the Proposed Recommended Order constitutes legal argument. COPIES FURNISHED: Charles Fritz, Designated Representative 8181 Northwest 14th Street Miami, FL 33126-1899 Luis Sanchez, Pro Se P. O. Box 34021 Tallahassee, FL 33134 Drucilla E Bell, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, FL 32399-2500
The Issue Pursuant to Section 403.508(2), Florida Statutes, the sole issue for determination in this case is whether the proposed site for the Petitioner’s electrical power plant “is consistent and in compliance with existing land use plans and zoning ordinances.” (All statutory references are to the 2001 codification of the Florida Statutes.)
Findings Of Fact The Petitioner Calpine intends to license, construct, own, and operate a new electrical power plant in unincorporated Indian River County, Florida. Calpine filed an application with DEP under the PPSA for the proposed electrical power plant, which is known as the Blue Heron Energy Center ("the Project"). The Site for the Blue Heron Energy Center The site (“Site”) for the Blue Heron Energy Center is located in southeastern Indian River County, approximately 5 miles southwest of the City of Vero Beach. The Site is approximately 50.5 acres in size and is currently undeveloped. The primary vegetation on the Site is pine flatwoods. The Site contains two small wetlands that will be preserved. The general area surrounding the Site is a mixture of agricultural, industrial, institutional, utility and residential land uses. The Interstate 95 ("I-95") corridor is adjacent to the west side of the Site. Just west of the I-95 corridor are two existing electrical transmission line corridors operated by Florida Power & Light Company ("FPL"). There is an existing natural gas pipeline owned by Florida Gas Transmission Company located between the two electrical transmission line corridors. The Indian River County Correctional Institution is located directly northwest of the Site. Farther to the north are Indian River County's landfill and several industrial (citrus processing) facilities. There also is one single-family residence located north of the Site. The eastern boundary of the Site is adjacent to 74th Avenue, which is adjacent to a drainage ditch known as the Lateral C Canal. A citrus grove and an industrial wastewater sprayfield are located on the east side of the Lateral C Canal. The southern boundary of the Site abuts the border between Indian River County and St. Lucie County. The I-95 corridor and undeveloped lands lie south of the Site in St. Lucie County. Southeast of the Site, in St. Lucie County, is a residential development known as Spanish Lakes Fairways. The Site is separated from this residential development by a drainage ditch, a berm, and an existing buffer of mature trees and dense vegetation. Description of the Proposed Blue Heron Project The Blue Heron Energy Center will involve the construction and operation of a combined cycle, natural gas- fired, electrical power plant that will generate approximately 1080 MW (nominal). The Blue Heron Project will be built in two phases, each generating approximately 540 MW (nominal). The first phase of the Project will include two combustion turbines, two heat recovery steam generators, a steam turbine, exhaust stacks, cooling towers, a treatment and storage system for process water, a treatment system and detention basin for storm water, an operations control center, transformers and related switching gear, and other ancillary structures and features. The second phase of the Project will be similar to the first phase. The Blue Heron Energy Center will connect to Florida's electrical grid with two overhead transmission lines that will extend west from the Site approximately 1400 feet (over I-95) to the existing FPL transmission lines. The Project will obtain natural gas by installing an underground pipe that will extend from the Site approximately 1400 feet to the west (under I-95) to where the Project will interconnect with the natural gas pipeline systems operated by Gulfstream and Florida Gas Transmission Company. Calpine has obtained options to purchase the land west of the Site where Calpine's gas pipeline corridor and electrical transmission line corridor will be located. The primary source of cooling and process water for the Blue Heron Energy Center will be surface water (storm water), which will be obtained from the Lateral C Canal or the County's proposed stormwater park. Potable water and domestic wastewater services will be provided by Indian River County. No groundwater will be used by the Project. The Blue Heron Project will not discharge any industrial or domestic wastewater to any surface water or groundwater. Existing Land Use Plans and Zoning Ordinances The Site is designated Agricultural (AG-1) in Indian River County's Comprehensive Plan. Under the Comprehensive Plan, the AG-1 designation allows for the construction of electrical power plants, like the Project, as "public facilities." Indian River County has adopted land development regulations and zoning districts that implement the intent of the County’s Comprehensive Plan. Under the zoning code, like the Comprehensive Plan, the Site is located in an Agricultural (A-1) district. The County’s zoning code expressly allows the construction of "public and private utilities, heavy" as a special exception use in A-1 zoning districts. The County's zoning code defines "utilities, public or private, heavy" to include "all major electrical generation plants (generating fifty (50) megawatts or more)." Thus, the A-1 zoning designation for the Site allows the development of the Project as a special exception use. Special Exception Use Section 971.05 of the County Code sets forth the procedures and criteria for obtaining the County's approval of a special exception use. Among other things, Section 971.05(9) of the County Code requires an applicant for a special exception use to demonstrate that the proposed project is consistent with the County's Comprehensive Plan and zoning code. Calpine has worked with the County to ensure that every aspect of the Blue Heron Energy Center will comply with the County's criteria. Consistent with the requirements of Section 971.05 of the County Code, Calpine filed an application with the County for approval of a special exception use and conceptual site plan for the Blue Heron Project. The Special Use Exception Application ("SUEA") fully described the Project, including the corridors for the proposed transmission lines and natural gas pipeline. The County’s staff reviewed Calpine’s SUEA and recommended approval, subject to certain conditions. On August 9, 2001, the County's Planning and Zoning Commission held a duly noticed public hearing and then recommended approval of Calpine’s SUEA, with conditions. On September 18, 2001, the Indian River County Board of County Commissioners ("County Commission") held a duly noticed public hearing and then approved Calpine’s SUEA, with conditions. It is "typical" for the County to include conditions as part of the County's approval for a special exception use. If Calpine complies with the County's conditions for its special exception use, the County will "automatically approve the final site plan" for the Blue Heron Project. No one appealed the County Commission's approval of Calpine’s SUEA and the deadline for filing an appeal has passed. Consistency With Land Use Plans and Zoning Ordinances The County staff, the Planning and Zoning Commission, and the County Commission considered whether the Project is consistent and in compliance with the County's Comprehensive Plan and zoning ordinances, pursuant to Section 971.05 of the County Code, and then they approved the Project, with conditions. The evidence presented in the Land Use Hearing demonstrated that the Site is consistent and in compliance with Indian River County’s Comprehensive Plan. The evidence also demonstrated that the Site is consistent and in compliance with Indian River County’s zoning ordinances. In the Prehearing Stipulation, Indian River County, St. Lucie County, the Florida Department of Community Affairs, the Treasure Coast Regional Planning Council, the Florida Department of Environmental Protection, the Florida Department of Transportation, the Florida Public Service Commission, the Florida Fish and Wildlife Conservation Commission and the St. Johns River Water Management District either agreed with or did not dispute Calpine’s assertion that the Site is consistent and in compliance with existing land use plans and zoning ordinances. Indian River County also stipulated that it supports Calpine’s plan to construct and operate the Blue Heron Project on the Site. Public Notice of the Land Use Hearing On December 11, 2000, Calpine published a “Notice of Filing of Application for Electrical Power Plant Site Certification” in the Vero Beach Press-Journal, which is a newspaper of general circulation published in Indian River County, Florida. On October 9, 2001, the Administrative Law Judge issued an “Order Granting Continuance and Re-Scheduling Land Use Hearing” and served a copy of his Order on all of the parties to this proceeding. The Judge’s Order stated that the Land Use Hearing would be conducted on February 6, 2002. On December 14, 2001, Calpine published a “Notice of Land Use and Zoning Hearing on Proposed Power Plant Facility” in the Vero Beach Press-Journal. On December 14, 2001, the Department published notice of the Land Use Hearing in the Florida Administrative Weekly. The public notices for the Land Use Hearing satisfy the informational and other requirements set forth in Section 403.5115, and Rules 62-17.280 and 62-17.281(4), Florida Administrative Code.
Conclusions For Petitioner Calpine Construction Finance Company, L.P.: David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 For the Florida Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 For Audubon of Florida and the Pelican Island Audubon Society: Kevin S. Doty, Esquire Hatch & Doty, P.A. 1701 A1A, Suite 220 Vero Beach, Florida 32963
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Land Use Final Order in this case finding that the Site of the Blue Heron Energy Center is consistent and in compliance with the existing land use plans and zoning ordinances. DONE AND ORDERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON 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 5th day of March, 2002. COPIES FURNISHED: James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Ross Stafford Burnaman, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Paul Bangel, Esquire County Attorney's Office 1840 25th Street Vero Beach, Florida 32960 Kathy Beddell, Esquire Harold Mclean, General Counsel Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 Kevin S. Doty, Esquire Hatch & Doty, P.A. 1701 Highway A1A, Suite 220 Vero Beach, Florida 32963-2206 Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Charles Lee, Sr., Vice President Florida Audubon Society 1331 Palmetto Avenue Suite 110 Winter Park, Florida 32789 Terry E. Lewis, Esquire Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000 West Palm Beach, Florida 33401 Daniel S. McIntyre, Esquire St. Lucie County 2300 Virginia Avenue 3rd Floor Administrative Annex Fort Pierce, Florida 34952 Cari L. Roth, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Roger G. Saberson, Esquire 70 Southeast Fourth Avenue Delray Beach, Florida 33483 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jennifer B. Springfield, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Sheauching Yu, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether the Respondent, a licensed general contractor, committed the offenses alleged in the three administrative complaints and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent has been licensed as a general contractor by the Petitioner. Respondent was issued license number CG C010162 in 1975 and has held that licensure ever since. The first complaint against Respondent’s licensure, like the three complaints at issue in this proceeding, arose from a post-Hurricane Andrew contract. That complaint was resolved by stipulation of the parties. Respondent did not admit to wrongdoing in his stipulation. Respondent was financially unable to comply with the terms of the settlement. Consequently, his license was suspended at the time of the formal hearing. There was no explanation as to why this complaint, which occurred at approximately the same time as the three contracts at issue in this proceeding, was prosecuted separately. At all times pertinent to this proceeding, Respondent was the qualifier for Allstate Construction Management, Inc. (Allstate), a Florida corporation. THE RODRIGUEZ CONTRACT (DOAH CASE 96-4580) On March 17, 1993, Allstate entered into a contract with Anthony Rodriguez to build a garage at 15525 SW 209th Avenue, Miami, Florida. The contract price was $16,250.00, which included “plans, permit and cleanup.” Allstate was paid the sum of $4,062.50 on March 17, 1993. Allstate obtained the Dade County building permit for the project on March 26, 1993. Allstate was paid the sum of $5,593.75 on April 5, 1993, after the concrete blocks were installed. On April 8, 1993, Allstate requested a tie beam/reinforcing inspection from the Dade County building department. In response to that request, Antonio Varona inspected the project on April 12, 1993. The inspector noted that the project was not ready for inspection because no truss plans were available. Respondent testified, credibly, that he had to construct the roof conventionally because of the difficulty in obtaining pre-fabricated trusses; however, that testimony does not explain why there were no truss plans available for inspection. Appropriately engineered truss plans are required for a roof to pass inspection. Despite the failure of the project to pass inspection, Mr. Rodriguez accepted the roof and paid Allstate $4,968.75 on May 21, 1993. As of May 21, 1993, there remained a final payment of $1,625 on the contract. After May 21, 1993, Respondent and Allstate left the Rodriguez job. There was a dispute in the evidence as to whether Mr. Rodriguez fired Allstate or whether Allstate abandoned the project. This dispute is resolved by finding that the evidence was insufficient to establish by clear and convincing evidence that Allstate abandoned the Rodriguez project. When Allstate left the Rodriguez job, there were sufficient funds remaining unpaid to complete the project. Because he had obtained the initial building permit, it was incumbent upon Respondent to either obtain a final inspection of the project or notify the building department that his company had been terminated by the owner. Respondent did neither. THE ELLIS CONTRACT (DOAH CASE 96-4581) At the times pertinent to this proceeding, William R. Ellis owned the Arleen House, which is an apartment building located at 2191 N.E. 168th Street, North Miami Beach, Florida. This building suffered damages from Hurricane Andrew. On September 11, 1992, Respondent and Mr. Ellis inspected the building and Respondent prepared an estimate as to the items that had been damaged by the hurricane and other non-hurricane related repairs that should be made. The mansard roof for this building had been damaged by Hurricane Andrew to the extent that it contained gaping holes. Shortly after that inspection, Mr. Ellis met with his insurance adjuster who gave him a check in the amount of $13,000 to repair the roof. It was necessary to dry in the roof and repair the mansard as soon as possible to avoid additional damage to the building from rains. While there was a dispute as to the extent of the services Allstate was to provide Mr. Ellis, the record is clear that Respondent, on behalf of Allstate, agreed to undertake the roof repair for the sum of $13,000. Respondent told Mr. Ellis that his company had a roofing crew ready to begin work on the roof repairs as soon as Mr. Ellis paid the sum of $13,000. Between September 11 and September 15, 1992, Mr. Ellis gave Allstate a check in the amount of $13,000 with the understanding that the check he had received from the insurance company had to clear before his bank would honor the check he was giving to Allstate. Immediately thereafter1 Allstate sent a roofing crew to the project for the purpose of temporarily covering exposed areas. Despite having been told by Mr. Ellis that the check he was giving Allstate would not be good until after the check for the insurance proceeds had cleared, Allstate did not wait to deposit Mr. Ellis’ check. Respondent was promptly notified that the check Mr. Ellis had given him would not be honored by Mr. Ellis’ bank. Respondent immediately thereafter withdrew the roofing crew from the project. The roofing crew had made only minor repairs at the time they were withdrawn from the project. Respondent knew, or should have known, that the building was vulnerable to further damage from rain. On September 15, 1992, Mr. Ellis gave Respondent a second check in the amount of $13,000. This check cleared the banking process on September 18, 1992. Mr. Ellis made repeated efforts to have Allstate send a crew to repair the roof. After it withdrew the crew that had been sent to the property when Allstate received the first check, Allstate did not take action to protect the property by repairing the exposed areas of the roof. Towards the end of September 1992, a heavy rainstorm caused additional damages to Mr. Ellis’ building. Allstate did not send a crew to the project again until October 6, 1992. Mr. Ellis hired this crew away from Allstate. He testified he did so because the crew complained about Allstate not paying for the materials they were using to repair the roof and because the workmen were threatening to file liens against the property. Mr. Ellis paid this crew the sum of $3,400 to temporarily repair the roof. He then entered into a contract with another contractor to complete the roofing repairs for the sum of $17,500. Mr. Ellis demanded the return of the $13,000 he paid to Allstate, but, as of the time of the formal hearing, he had not been repaid. THE KUCHENBACKER CONTRACT (DOAH CASE 96-4582) On November 6, 1992, Allstate entered into a contract with Carl F. Kuchenbacker to repair his residence at 18500 SW 88th Road, Miami, Florida. Mr. Kuchenbacker’s residence had been damaged by Hurricane Andrew. The initial contract price was $33,375.00. Respondent secured the building permit and Allstate began work on the project. During the course of the work, additional work was added to the contract, which raised the total contract price to $38,015.00. In late February or early March, 1993, Allstate abandoned the project without just cause and without notice to the owner. At the time it abandoned the project, Allstate had been paid the sum of $26,620.00. Allstate failed to pay all of the subcontractors and materialmen who had performed work or provided material for the Kuchenbacker job. As a result of that failure, valid liens were recorded against Mr. Kuchenbacker’s property. The following liens were recorded: Rite-Way Plumbing and Plastery, Inc. in the amount of $3,520.00; Commercial Lighting and Maintenance, Inc., in the amount of $1,835.00; and Scott Bornstein Plumbing, Inc., in the amount of $798.00. Allstate had received sufficient funds from the owner to pay these liens, but neither Respondent nor Allstate paid these liens. Mr. Kuchenbacker and Petitioner’s expert witness testified that the value of the work performed by Allstate before it abandoned the job was $21,000.00. Mr. Kuchenbacker also testified as to the items that remained undone and as to the percentage of the work that had been completed. From that testimony and from the testimony as to the estimated costs of completing the job, it is found that the sum of $11,395.00, which was the difference between the total contract price and the total amount that was paid to Allstate, was sufficient to complete the project and pay off the liens on the property. Respondent did not call for a final inspection of the property and he did not advise the Dade County Building Department that he was abandoning the project. Allstate abandoned the Kuchenbacker project because it went out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Petitioner impose fines totaling $5,000 against Respondent’s licensure as follows: For the violation established by Count I of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count II of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count IV of DOAH Case 96-4580, an administrative fine in the amount of $250. For the violation established by DOAH Case 96-4581, an administrative fine in the amount of $500. For the violation established by Count I of DOAH Case 96-4582, an administrative fine in the amount of $750. For the violation established by Count II of DOAH Case 96-4582, an administrative fine in the amount of $2,000. For the violation established by Count III of DOAH Case 96-4582, an administrative fine in the amount of $500. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found in DOAH Case 96-4581, Respondent’s licensure be suspended for two years. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found DOAH Case 96-4582, Respondent’s licensure be suspended for two years, to run concurrently with the suspension recommended for DOAH Case 96- 4581. DONE AND ENTERED this 23rd day of May, 1997, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 23rd day of May, 1997
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what penalty, if any, should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a foreign corporation authorized to do business in Florida. Respondent's "core business is building automation systems" that "regulate the . . . energy consuming systems in a building," and it holds itself out as an "energy performance contractor." Respondent has a certification of authority to engage in contracting in Florida in the categories of electrical contracting, mechanical contracting, and general contracting. Respondent does not now have, nor has it ever had, a certification to engage in the practice of engineering in Florida through employees employed by it. Lawrence B. Stoff is now, and has been for the past nine years, an employee of Respondent's, working as a "project manager in the performance contracting field." His "focus" is "evaluating buildings for energy savings opportunities." Mr. Stoff is a Florida-licensed professional engineer, holding Florida P.E. number 46998. Several years ago, Respondent responded to a Request for Proposals (RFP 98-379V) issued by the School Board of Broward County (School Board) seeking proposals for "Energy Management Performance Contracting Services." RFP 98-379V contained the following "introduction" describing the objective of the RFP and the services sought: OBJECTIVE The School Board of Broward County, Florida (hereinafter referred to as "SBBC") is requesting proposals from interested and qualified performance contractors to implement Energy Conservation Opportunities (ECOs) in SBBC facilities. SBBC plans to select the three most qualified contractors to enter into a Guaranteed Energy Savings Contract pursuant to Florida Statutes, Chapter 235.215, Educational Facilities, Energy Efficiency Contracting. The term of the contract shall be a maximum of ten years from date of contract approval by the School Board. Guaranteed energy savings contract may extend beyond the fiscal year in which it became effective; however, the term of the contract shall expire at the end of each fiscal year and will be automatically renewed annually up to 10 years subject to SBBC making sufficient annual appropriations based upon continued realized energy savings. The contract shall stipulate that the agreement does not constitute a debt, liability, or obligation of SBBC or a pledge of faith and credit of the District. The successful contractors shall provide a written savings guarantee in accordance with Chapter 489.145, Contracting, Energy Efficiency Contracting. The total program costs, including financed equipment cost, maintenance costs, SBBC project maintenance costs, SBBC Project Management costs, and all other costs, shall be 100 percent (100%) covered by energy savings. SBBC will require the successful proposers to fund a SBBC hired "Project Manager." The successful proposers cannot begin any work including, but not limited to, the pilot project until SBBC receives the funds and hires the "Project Manager." The current annual salary for this position is $66,610 which includes benefits. One third of the annual cost for the "Project Manager" will be provided by each selected contractor. The written guarantee must state that the energy savings will meet or exceed the costs of the ECO's, including cost of the "Project Manager." (i.e. The total costs must be funded out of savings accrued from energy conservation.) SBBC shall make fixed payments to the performance contractor or its assignee for the term of the guaranteed energy savings contract. Such payments shall not exceed the total savings realized under this program for the term of this Agreement. The objective of SBBC in issuing this Request for Proposals (RFP) is to enhance the school district's ongoing energy conservation and management program and to upgrade SBBC facilities through performance contracting. The energy conservation measures may be realized through facility alteration that reduces energy consumption or operating costs including but not limited to all energy conservation measures listed in Chapter 235.215. SCOPE The three selected proposers shall provide SBBC with a comprehensive energy services program including but not limited to: (a) complete energy audits and technical engineering analyses, (b) design and installation of the most cost-effective energy efficient equipment and systems, including enhancements to its existing School Board-wide Andover Controls Corp. based energy management system, (c) training staff on installed ECOs, (d) monitoring of energy costs, (e) power quality services, (f) financing for the project, and (g) a written energy guarantee that total program costs shall be 100 percent (100%) covered by program energy savings. The proposed agreement shall not constitute a debt, liability, or obligation of SBBC, nor is it a pledge of the faith and credit of SBBC. Respondent was subsequently selected, in accordance with the procedures set forth in RFP 98-379V, as one of the "qualified performance contractors to implement Energy Conservation Opportunities (ECOs) in SBBC facilities." On or about July 20, 2001, Respondent and the School Board entered into an Energy Audit Agreement, pursuant to which Respondent was to perform an energy audit and prepare a detailed report regarding Miramar High School to determine the feasibility of entering into an energy performance-based contract. The Energy Audit Agreement contained the following introductory clauses: Whereas, SBBC has issued a Request for Proposals, RFP 98-379V (RFP) and issued an Addendum thereto collectively referred to as "RFP" and made a part hereof by reference, to identify qualified energy performance contractors for energy performance-based contracts; and Whereas, the Company submitted a response to the RFP [which is made a part hereof by reference and is referred to as "Proposal"] and participated in a competitive evaluation procedure designed to identify qualified energy performance contractors; and Whereas, SBBC has selected the Company as a qualified energy performance contractor; and Whereas, SBBC is responsible for the operation, management and maintenance of facilities identified in the scope of this project, also listed in Attachment "A"; and Whereas, a comprehensive Investment Grade Energy Audit (hereafter referred to as the "Energy Audit") and a detailed Engineering and Economic Report (hereafter referred to as "Report") must be performed at the Facilities in order to determine the feasibility of entering into an energy performance-based contract to provide for the installation and implementation of Energy Conservation Measures (hereafter referred to as "ECMs") at the Facilities; and Whereas, Energy Performance Contracting (hereafter referred to as "EPC") is a generic term used to refer to an energy performance-based contract; and Whereas, Energy Services Agreement (hereafter referred to as "ESA") means the contract document governing an energy performance-based contract under Section 235.215, Florida Statutes; and Whereas, if the ECMs recommended by the Company are determined to be feasible by SBBC, and if the amount of energy savings can be reasonably ascertained and guaranteed in an amount sufficient to cover all costs associated with an energy performance contracting project at the Facilities as further defined in Article 1, Section F, the Parties intend to negotiate an ESA under which the Company would design, procure, install, implement, maintain and monitor such energy conservation measures at the Facilities. Article 1 of the Energy Audit Agreement described the "Scope of Investment Grade Energy Audit and Report." Its prefatory paragraph read as follows: For each of the Facilities listed in Attachment A, the Company will perform an Energy Audit and prepare a detailed Report which specifically identifies the improvements in energy consumption recommended for installation or implementation at each Facility. The Report shall contain detailed projections of Energy and Utility Savings to be obtained at the Facilities as a result of the installation of the recommended ECMs. The savings calculations must utilize assumptions, projections and baselines which best represent the true value of future Energy and Utility Savings for the Facilities, i.e.: utilize accurate marginal cost for each unit of savings at the time the audit is performed; documented material and adjustments to the baseline to reflect current conditions at the Facilities compared to the historic base period resulting from scheduled new construction and remodeling projects to be implemented by SBBC and listed in the Adopted District Facilities Work Program for Fiscal Years 1999-2000 to 2004-2005; calculations which account for the interactive effects of the recommended ECMs. The Report shall describe the Company's plan for installation or implementation of the ECMs in the Facilities, including all anticipated Associated Costs with such installation and implementation. The primary purpose of the Report is to provide engineering and economic basis for negotiating an ESA between SBBC and the Company; however, SBBC shall be under no obligation to negotiate such a contract. Section G of Article 1 of the Energy Audit Agreement addressed the "Report Content and Acceptance Procedure," and provided, in pertinent part, that, "[i]n accordance with Florida Statute, the report shall be signed by a Florida Registered Professional Engineer." Article 2 of the Energy Audit Agreement read as follows: Energy Services Agreement The Parties intend to negotiate an ESA under which the Company would design, install and implement energy conservation measures agreed to by the Parties and provide certain maintenance and monitoring services. The Company shall be obligated to enter into an ESA on the basis of the Report, provided SBBC proceeds with the development of the ESA in a timeframe which allows the ESA to be finalized within the timeframe specified in Article 1, Section G(3). However, nothing in this Agreement should be construed as an obligation on the part of the SBBC to execute an ESA. The terms and provisions of such an ESA shall be set forth in a separate agreement. Pursuant to its normal practice, Respondent contracted with an engineering firm, Engineering Matrix, Inc., to prepare the audit report. The audit report Engineering Matrix prepared "was not accepted favorably by the [School Board, which] requested that it be reworked by [Respondent's] staff with whom [the School Board] was familiar." Respondent complied with the School Board's request. It had Mr. Stoff "rework" the report. Respondent provided the School Board with an audit report, dated August 27, 2002, that incorporated the revisions Mr. Stoff had made (Revised Technical Audit Report). The Revised Technical Audit Report was essentially "a proposal of energy conservation measures [at Miramar High School] that would result in energy savings if implemented." Its "general scope and content [were] fairly typical" of the "reports that [were] issued by [Respondent] under Section 235.215," Florida Statutes. The Revised Technical Audit Report contained the following Energy Consultant Certification signed by Mr. Stoff: As the Energy Consultant and a Florida registered engineer responsible for preparing this report, I hereby certify that: This Study and Report has been performed in accordance with the most current accepted energy practices and procedures. The members of the Audit Team are qualified to perform the analysis, investigations, and duties assigned to them for the purpose of fulfilling the intent of the report. This Study has thoroughly examined this building for the purpose of identifying the opportunities which exist for reducing energy consumption. The data, recommendations and analysis contained in this Report have been performed using standard engineering practices and to the best of my knowledge are correct. Mr. Stoff signed the Revised Technical Audit Report as a professional engineer, using his Florida P.E. number. The Revised Technical Audit Report served as the basis for negotiations between Respondent and the School Board that ultimately lead to an Energy Services Agreement between them, as contemplated by the Energy Audit Agreement. Respondent was paid somewhere between $650,000 to $800,000 in connection with the work it performed at Miramar High School pursuant to its agreement with School Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order dismissing the Amended Administrative Complaint issued against Respondent in its entirety. DONE AND ENTERED this 13th day of June, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 13th day of June, 2006.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant matter, registered as a septic tank contractor with the Department. In July 2002, Respondent entered into a contract with Pro Gold Investments Corp. (Pro Gold), whose president and sole owner is Emerico Kemeny Fuller. The contract provided that Respondent would install a "new septic system" for Pro Gold at 453 Blue Road in Coral Gables, Florida (Blue Road Property) for $4,600.00, a job that should have taken only a "few days" to complete. Pro Gold gave Respondent a "job deposit" of $2,300.00. In July 2003, Pro Gold, by Warranty Deed, conveyed title to the Blue Road Property to Maurits de Blank's company, Mortgage Lending Company LLC (MLC), and it also executed a Bill of Sale, Absolute and Assignments of Contracts, which read as follows: PRO GOLD INVESTMENTS CORP, as Seller, in consideration of Ten Dollars ($10.00) and other valuable consideration paid to it by MORTGAGE LENDING COMPANY, LLC, as Buyer, the receipt of which is acknowledged hereby sells, assigns, grants, transfers, and conveys to Buyer all of Seller's right, title, and interest in the following described goods, contracts and personal property: SEE ATTACHED EXHIBIT "A- PROPERTY" AND EXHIBIT "B- CONTRACTS ASSIGNED" Seller covenants and agrees that it is the lawful owner of goods, contracts, rights or interests transferred hereby; that they are free from all encumbrances, except for outstanding amounts due, if any, to those parties set forth on Exhibit "B," and that it has the right to sell, transfer and assign the goods, properties and rights set forth in the attached Exhibit "A," and the right to transfer and assign the contracts, rights or interests shown on Exhibit "B," and will warrant and defend same against the lawful claims and demands or all persons. The "attached Exhibit 'A- Property'" read, in pertinent part, as follows: (Regarding transfer of 453 Blue Road, Coral Gables, Florida, "the Real Property") (Mortgage currently in favor of Mortgage Lending Company, LLC "the Mortgage") All property rights of any kind whatsoever, whether in property that is real, fixed, personal, mixed or otherwise and whether in property that is tangible or intangible, including, without limitation, all property rights in all property of any kind whatsoever that is owned or hereafter acquired by the Company and that is associated with, appurtenant to or used in the operation of the Real Property or is located on, at or upon the Real Property and is associated with or used in connection with or in operation of any business activity conducted on, at or upon the Real Property, and including, without limitation, the following: * * * All right, title, and interest in those certain contracts and agreements [set] forth in the attached Exhibit "B," which are hereby transferred and assigned to Mortgage Lending Company LLC. Among the "contracts and agreements [set] forth in the attached Exhibit 'B,'" was the aforementioned July 2002, contract wherein Respondent agreed to install a "new septic system" for Pro Gold on the Blue Road Property (Septic System Contract). This contract was still executory. Respondent had not done any work on the site in the year that had passed since the contract had been signed. In the beginning of August 2003, Mr. de Blank met with Respondent and advised him that MLC was the new owner of the Blue Road Property and that MLC had also received an assignment of the Septic System Contract from Pro Gold. In response to this advisement, Respondent stated "he did not do assignments." Following this meeting, Mr. de Blank sent Respondent documentation supporting the assertions he had made regarding MLC's ownership of the Blue Road Property and its having been assigned the Septic System Contract. Mr. de Blank then attempted, unsuccessfully, to make contact with Respondent by telephone. He "left messages," but his telephone calls were not returned. These efforts to telephonically communicate with Respondent having failed, Mr. de Blank "decided that it may make some sense to start a letter writing program." As part of that "program," on September 8, 2003, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables As background, and in chronological order: Pro Gold Investments purchased the above cited property and obtained a construction loan from our firm. One of the conditions was that all construction contracts would be assignable to our firm in the event of default. Pro Gold Investments entered into contract with your firm to install a new septic tank and drainfield at 453 Blue Road. Pro Gold Investments defaults and forfeits title in lieu of foreclosure. The deed was recorded on August 4, 2003, at Bk/Pg: 21484/4283. Not recorded but attached for your reference is an assignment of contracts to include the contract Pro Gold Investments entered into with your firm. See further attachment. The original can be inspected in my office. At this point, I request you proceed with the work as soon as practical and under identical conditions as originally agreed with Pro Gold Investments. Please call me at . . . to confirm a start date. Mr. de Blank did not receive any response to his letter. He finally was able, however, to reach Respondent on the telephone. During this telephone conversation, Mr. de Blank made arrangements to meet Respondent at the Blue Road Property to discuss Respondent's doing the work Respondent had agreed to do in the Septic System Contract. This meeting between Mr. de Blank and Respondent took place on September 11, 2003. During the meeting, Mr. de Blank went over with Respondent "what the job [was] going to be." Although Respondent indicated that he was "going to put in th[e] septic tank" per the Septic System Contract, Mr. de Blank had his doubts that Respondent would be true to his word. Following the meeting, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables We met today to discuss the above referenced job. My understanding is: You will start the job no later than the first week of October and will complete the job no later th[a]n the last week of October. I will obtain a copy of the approved permit. You indicated you will not need a survey.[1] Should you change you[r] mind, you can always refer to a survey I keep on site. You will have your insurance agent mail to my address a certificate of insurance. Though not discussed: I would like a partial release of payments made to date for the job. See further the attachment. Assuming you concur, then please send a signed and notarized copy to Maurits de Blank, Mortgage Lending Company, Post Office Box 430336, Miami, Florida 33143. Note that I prefer for various legal reasons that you use the release form as provided. Once the job has been started, I would like a list of firms supplying materials to the job. Notwithstanding that he had promised Mr. de Blank that he would "start the job no later than the first week of October," by the middle of October Respondent had yet to even "pull a septic tank construction permit from the City of Coral Gables" (that was needed before any on-site work could begin).2 In an attempt to find out from Respondent what was the cause of the delay, Mr. de Blank started a "calling campaign," but Respondent neither answered the telephone when Mr. de Blank called nor returned Mr. de Blank's calls. On October 19, 2003, Mr. de Blank sent the following letter to Respondent (by certified United States Mail, return receipt requested): Re: 453 Blue Road, Coral Gables I need a firm commitment when you will start and finish septic tank at above address. If you cannot perform the work, then I will need a refund of the deposit given to your firm. Please call to discuss. The end of the month was fast approaching, and Respondent had neither contacted Mr. de Blank nor begun the Septic System Contract on-site work. After paying a visit to Coral Gables City Hall and learning that Respondent had still not even "pull[ed] a septic tank construction permit from the City of Coral Gables," Mr. De Blank found another septic tank contractor, Westland Septic Tank Corp., to do the installation work for MLC that Respondent was contractually obligated to perform. MLC paid Westland $4,400.00 to do the work. Westland completed the job some time prior to November 4, 2003. The work passed all of the necessary inspections. Upon learning that MLC had contracted with Westland, Respondent sent Mr. de Blank a letter complaining that Mr. de Blank had not given Respondent an adequate opportunity to meet his obligations under the Septic System Contract. In the letter, Respondent offered to return only $500.00 of the $2,300 down payment he had received from Pro Gold. Mr. de Blank subsequently informed Respondent that this was not satisfactory and that he wanted the "full deposit back." He added that if he did not get it, he would "go to court." Not having received any portion of the "deposit back," Mr. de Blank, acting on behalf of MLC, in mid-November 2003, filed suit against Respondent in Miami-Dade County Court. On May 14, 2004, a Final Judgment was entered in Miami-Dade County Court Case No. 0313813 in favor of MLC and against Respondent "in the amount of $1,675.00 plus court costs in the amount of $121.00." As of the date of the final hearing in this case, Respondent had not made any payments to MLC. In view of the foregoing, it is found that Respondent abandoned for 30 consecutive days, without any apparent good cause, a project in which he was under contractual obligation to complete; and his failure to go forward with the project, combined with his failure to return any of the deposit he had received, caused monetary harm to a party to whom he was contractually obligated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department issue a final order finding Respondent guilty of the misconduct alleged in the Administrative Complaint and disciplining him therefor by fining him $500.00 and suspending his registration for 90 days. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 4th day of February, 2005.
The Issue The issue in this case is whether the Florida Renewable Energy Production Tax Credit (“Tax Credit”) application filed by Petitioner, Florida Power Development, LLC, A Florida Limited Liability Company (“Florida Power”), was eligible for consideration by Respondent, Department of Agriculture and Consumer Services, Office of Energy (“DACS” or the “Department” or “Office of Energy”).
Findings Of Fact Florida Power is a company which produces power by way of burning biomass materials, primarily wood chips, at its energy plant at 10311 Cement Plant Road, Brooksville, Florida. Most of the energy it produces is sold to Duke Energy. The plant had previously been a coal fired power plant, but Florida Power spent $196 million converting it into a renewable energy facility utilizing biomass fuel. JP Morgan is the parent company of Florida Power. The Office of Energy is the state agency responsible for overseeing the Tax Credit program authorized under section 220.193, Florida Statutes (2016).2/ The Department is empowered to review and approve (or disapprove) all Tax Credit applications which it receives. The Office of Energy is located at 600 South Calhoun Street, Suite 251, Tallahassee, Florida 32399-0001. Applications for a Tax Credit are available on the DACS website, as are the statutes and rules governing the Tax Credit program. The rules specify the date applications are due in each “production year” and set forth the process for filing the applications. Applications addressing the production year at issue in this proceeding of January 1, 2016, through June 30, 2016, were due at the Office of Energy no later than August 15, 2016. Florida Power’s application was not received by the Office of Energy until August 17, 2016, two days after the deadline. As a result, the Department deemed Florida Power’s application ineligible for consideration. Florida Power believes that circumstances surrounding the filing of its application for a Tax Credit excuse or make moot its failure to meet the deadline. Florida Power had filed applications for Tax Credits in prior production years. In 2015, its application was prepared by Tateswood, a company located in Houston, Texas. Tateswood provides management services to several power plants, including several owned by Florida Power. The application was submitted via overnight delivery, i.e., FedEx, from Houston, Texas, to the Office of Energy in Tallahassee, Florida. A senior official from Tateswood, Jeff Winkler, signed the application and had it overnighted to the Department. The application was received timely and approved by the Office of Energy.3/ Florida Power received a tax credit that year of approximately $1.49 million. Around July 28, 2016, Florida Power received the data it needed from Duke Energy to file the Tax Credit application for the 2016 production year (which was less than a full year as the Tax Credit program was expiring). Florida Power’s accountant, Lashauna Filo, also worked for Tateswood in Houston, Texas. She prepared the 2016 application for Mr. Winkler’s signature. Mr. Winkler was traveling, but he was expected to be in Brooksville prior to the application submission deadline. Ms. Filo emailed the application to the Brooksville plant on August 10, 2016, five days prior to the date it was due in Tallahassee. Mr. Winkler signed the application and gave it to Ms. Brown, plant administrator, who was given the task of submitting the application to the Office of Energy.4/ She noted verbiage on the face of the application form which says it can be submitted to the Department via “certified mail or hand delivery.” The due date of August 15 also appeared on the face of the application. Ms. Brown had not been involved with filing a Tax Credit application previously. After conferring with one of her supervisors, Dave Hermanson, she selected the first option--certified mail–-for submitting the application. She typed an envelope, filled out a Certified Receipt form, and put the application into a post office box at the Brooksville, Florida, post office. Ms. Brown did not consider literally hand-delivering the application to DACS because Tallahassee is roughly a four-hour drive from Brooksville, and it seemed there was enough time for the package to get to the Department. Ms. Brown did not understand that “hand delivery” allowed for delivery by overnight courier. Neither Florida Power nor Tateswood have attorneys on staff to provide guidance or assistance in matters such as these. Instead, Ms. Brown relied upon the advice given her by Mr. Hermanson. Unfortunately, the application did not sail smoothly through the USPS system. It was received by a Tampa USPS facility at 8:00 p.m., on August 10, was “coded” for Tallahassee, and departed that facility at 9:43 p.m., the same evening. It arrived at the Adams Street USPS facility in Tallahassee at 1:19 p.m., on August 11. However, the package had been improperly “coded” in the Tampa USPS facility to zip code 32301, rather than to zip code 32399. The 32399 zip code is used for state agencies in Tallahassee. This mis-code by the Tampa office caused the package to be erroneously sent from the Adams Street office to the downtown Tallahassee facility, rather than being processed for a “state agency” delivery. Thereafter, it went to another USPS site, the Lake Jackson facility, where it arrived on August 12. The package did not make it back to the Adams Street facility where it belonged until 5:36 a.m. on August 16-–one day after the submission deadline. The application was delivered to DACS on August 17, 2016, at 9:08 a.m., two days after the deadline. Clearly, Florida Power’s application for a Tax Credit was not timely received by the Office of Energy. However, Florida Power raises several facts which may relate to whether equitable tolling or equitable estoppel principles apply to this situation. Florida Power points out that verbiage on the face of the application itself does not specifically use the words “overnight express” as a means of submitting the application. Florida Power maintains, therefore, that it was misled into believing that physical hand-delivery or certified mail were its only options. Inasmuch as Florida Power had submitted their prior year’s application via FedEx, their claim lacks credence. Furthermore, the rule addressing application submission defines “hand delivery” as “any physical submission of an application to the Office [of Energy] from a representative of an applicant, courier, or a private delivery service.” Fla. Admin. Code R. 5O-2.003(3)(b)2. Florida Power was very familiar with the Tax Credit program, but could not say why it was not familiar with the rules governing that program. Unfortunately, certified mail, Florida Power’s delivery option for the application at issue, does not guarantee delivery by a date certain. Rather, certified mail-–which is processed exactly the same way as non-certified mail-–is merely a means for tracking a letter or package. Thus, a person who mails a letter by way of certified mail assumes the risk that the letter may not be delivered on or before a desired date. It appears that the risk is quite high. A USPS employee testified at final hearing that there are 50 to 70 complaints per day in Tallahassee concerning certified mail and several hundred certified letters may be misdirected each week. Florida Power further argues that the Department has seen several applications submitted via certified mail arrive at DACS late, i.e., after the “received by” deadline. Florida Power asserts that this fact has put DACS on notice that allowing an applicant to submit an application via certified mail constitutes a flaw in the system. The Department maintains that the use of certified mail is a valid way of tracking applications and is feasible. During the development of the rule governing submissions of the applications, no interested party voiced any objection to the use of certified mail as a delivery option. There is no evidence in the record that DACS was previously aware of the magnitude of errors by USPS so that it (DACS) should not include certified mail as an option for submitting applications. One must wonder, as does Florida Power, why there needs to be tracking of the applications at all since the operative date is the date of receipt by DACS. But the Department must deem it necessary for some reason and it is the current state of the law. Florida Power contends in its PRO that there are numerous fallacies in the Department’s rule regulating Tax Credit applications. This proceeding, however, is not a rule challenge brought pursuant to section 120.56, Florida Statutes. The validity or propriety of the rule is not in question. At issue in the instant proceeding is whether Florida Power complied with the duly promulgated and existing rule. DACS is one of the few state agencies which await delivery of its mail from the post office, rather than sending someone to retrieve it from USPS. DOAH is also one of those agencies. While awaiting delivery may delay an agency’s receipt of mail at times, it would not have affected Florida Power in this case because the package was not available for pick-up until August 16, one day after the deadline. There is no requirement in law or rule that any state agency opt to pick up its mail from USPS rather than have it delivered. Florida Power’s lament that DACS could have chosen to have its mail delivered is of no consequence. Some government agencies use the postmark on letters or packages as evidence that the item was timely mailed out; think IRS and April 15, for example. However, the DACS rule requires receipt of the application by the Department; the rule does not currently employ a “submitted by” compliance date. See Fla. Admin. Code R. 5O-2.003(b). When the Tax Credit program was originally initiated, the Department undertook regular rule development. The first rule promulgated by the Department was drafted in July 2012 and was ultimately adopted in the spring of 2013. That version of the rule stated that all applications must be “submitted” by a date certain. Upon receipt of one application after the due date, but which had been “submitted” by the applicant before the deadline, the Department decided it needed to re-think that provision. Rulemaking was recommended in order to amend the language relating to timely filing of applications. During the rulemaking process, which was duly noticed and advertised, DACS received no input from interested parties concerning the proposed amendment to the rule. The amended rule requires applications to be “received by” DACS on or before the deadline established by rule. This amendment eliminated any disputes concerning when an application was “submitted” by an applicant. The current, duly promulgated rule utilizes “received by” rather than “submitted” as the operative date. Florida Power points out that DACS has missed some of its own statutorily mandated deadlines concerning the reporting of Tax Credit information to the governor’s office. Florida Power does not cite to any authority which relieves an applicant from the requirements of a rule when an agency misses its own deadlines. So, that DACS was not timely in carrying out its own mandated duties is irrelevant to whether Florida Power satisfied its required actions. Nonetheless, the Department provided a legitimate rationale for its tardiness, though such reasons are irrelevant to the issue in this case. DACS employees utilize a checklist when reviewing Tax Credit applications. The checklist is just that, a matrix that can be checked off as each element or requirement of the application is reviewed, i.e., date of receipt, signature, application form, etc. The first question on the checklist asks whether the application “was submitted by” the requisite due date. April Groover Combs, who reviewed the Florida Power application using the checklist, simply interpreted the “was submitted by” language as “was received by.” Mrs. Combs had authored the rule and was involved in its amendments, so she understood what was required regardless of how the checklist referred to the items. Florida Power suggests that the internal checklist error somehow invalidates the Department’s actions; it does not. An internal document used by employees is not meant to provide rights to the public. It is not a rule. Thus, any errors within such a document are immaterial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services upholding its rejection of the Tax Credit application filed by Florida Power as ineligible for consideration. DONE AND ENTERED this 6th day of April, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 6th day of April, 2017.
Findings Of Fact On September 12, 1995, Petitioner became a Florida Power customer. He received electricity service in his name at an apartment located at 2950 N. Pinehill Road #31, Orlando, Florida. From September 1994, through December, 1994, Petitioner occupied the apartment at 2950 N. Pinehill Road #31, Orlando, Florida. Petitioner's meter indicated he used 827 Kwh from September 12, 1994, through October 4, 1994. Petitioner's meter indicated he used 1525 Kwh from October 4, 1994, through November 2, 1994. Petitioner's meter indicated he used 1548 Kwh from November 2, 1994, through December 5, 1994. Petitioner's final bill was for December 5, 1994, through December 28, 1994. The meter indicated he used 221 Kwh for this final period. Respondent's tariff sheet 8.05 filed with the Commission sets forth the length of time within which Respondent must disconnect a customer's service after receiving a disconnect order. Respondent must disconnect service within 3 days of receiving the disconnect order. On December 26, 1994, Petitioner requested that his service be disconnected on December 27, 1994. Respondent disconnected Petitioner's service on December 28, 1994. On January 12, 1995, Petitioner's meter was tested in St. Petersburg, Florida. Petitioner's meter registered 99.96 percent accuracy.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Commission enter a Final Order finding that Respondent acted in compliance with applicable law and did not overbill Petitioner. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of January, 1995. DANIEL S. MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1995. COPIES FURNISHED: Rodney Gaddy, Esquire Florida Power Corporation 3201 34th Street, South St. Petersburg, Florida 33711-3828 Thomas Fuller Post Office Box 617217 Orlando, Florida 32861 Robert D. Vandiver, General Counsel Florida Public Service Commission Gerald L. Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Noreen S. Davis, Director Division of Legal Services Florida Public Service Commission Gerald L. Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
The Issue The issues are (1) whether engaging in air conditioning contracting regulated by the Florida Electrical Contractors Licensing Board pursuant to Section 489.500 et seq. Part II, Florida Statutes, constitutes exceeding the scope of one's license as an electrical contractor, (2) whether performing air conditioning contracting in the name of "Dixon's Heating and Air Conditioning" constitutes operating in a name other than the name his electrical contracting license is issued in, contrary to Subsection 489.533(1)(l), and (3) whether Respondent willfully violated the building codes by venting the heater improperly, failing to get a permit and get work inspected.
Findings Of Fact Notice of hearing was given to Respondent at Route 2, Box 595, Yulee, Florida 32097. Arnold Dixon is and has been at all times material to this case a registered electrical contractor, license number ER0004417. (Pet. Ex. 1 & 2) He has maintained his address of record as Route 2, Box 595, Yulee, Florida 32097. (T-Pg. 6) He has held such license since 1976. (Pet. Ex. 1 & 2) Arnold Dixon does not hold a license, a state registration or certification to engage in contracting as a heating or air conditioning contractor. (Pet. Ex. 4 & 6) Arnold Dixon does hold a Nassau County Occupational License as an electrical contractor and as a heating and air conditioning contractor. No check of local records was conducted to see if he had a local license as an air conditioning contractor. (T-Pg. 22) On or about June 1985, the Respondent's company, Dixon's Heating and Air Conditioning, contracted to install an air conditioning and heating unit at the home of John Williams for a contract price of $1985. (Pet. Ex. 5 and T-Pgs. 10 & 11) The work on this contract was done by David Everett, who negotiated the contract. The Respondent's company, Dixon's Heating and Air Conditioning, did not obtain a permit to perform the work at the Williams' residence. Inspections on the Williams' job were not called for by Dixon's Heating and Air Conditioning. Permits and inspections were required by the applicable building code. (T-Pgs. 25 & 26) Entering into a contract to perform air conditioning and heating work and performing such work is air conditioning contracting, which is regulated under Part I, Chapter 489, Florida Statutes. After installation by Dixon's Hearing and Air Conditioning, the Williams' heating system generated carbon monoxide when operating because there was insufficient fresh air being provided to the unit. Because the air intake was in a closet which restricted the air supply to the hot air handling system, the air handling unit sucked fumes from the exhaust side of the unit back through the unit's combustion chamber and circulated it through the house. The longer the unit ran, the more debris was trapped in the louvered door of the closet and the more combustion gases were pulled through the combustion chamber and distributed through the house by the air handling unit. (T-Pg. 34) According to the manufacturer's representative, the hot air return is required to be ducted into the unit. In this case, the return air was pulled from inside a closet which had louvered doors. No duct was used and this installation was not in accordance with the manufacturer's instructions. Although the unit as installed was unsafe and had the potential to kill, no evidence was received that failure to install the unit in accordance with the manufacturer's instructions was a violation of local building code. (T-Pgs. 34- 38) Dixon's Heating and Air Conditioning did not hold itself out to be and was not engaged in electrical contracting in fulfilling the Williams' contract. Dixon's Heating and Air Conditioning did hold itself out to be an air conditioning contractor and the work performed in fulfilling the Williams' contract was air conditioning contracting.
The Issue The issues in this case are whether each of the two respondents practiced contracting and electrical contracting without a license in violation of Subsections 489.113(2), 489.127(1)(f), 489.531(1), Florida Statutes (2004),1 and, if so, what penalty, if any, should be imposed pursuant to Subsections 455.228(1) and 489.13(3).
Findings Of Fact Petitioner is the state agency defined in Subsection 489.105(2) that is responsible for regulating the practice of contracting and electrical contracting pursuant to Subsection 455.228(1). Neither of the respondents has ever been licensed as either a contractor or an electrical contractor. On April 14, 2005, Mr. Adams and Bay Breeze Maintenance, LLC (Bay Breeze), practiced contracting and electrical contracting within the meaning of Subsections 489.105(3) and (6) and 489.505(9) and (12). Mr. Adams, as agent for Bay Breeze, submitted to Mr. Christopher King, as agent for Dome Flea Market in Venice, Florida, a written proposal to remodel part of the Dome Flea Market for a cost not to exceed $60,000. The proposed remodeling involved an upgrade of a snack bar into a grill and bar to be known as the Sawmill Grill. In relevant part, the proposed remodeling required performance of plumbing, carpentry, and electrical contracting, including the installation of electrical wiring and electrical fixtures. Between April 14 and May 20, 2005, Mr. King paid approximately $39,350 to the respondents for the proposed remodeling job. On April 14, 2005, Mr. King paid $8,000 and $1,500 by respective check numbers 7725 and 7726. On April 19, 2005, Mr. King paid $8,000 and $1,700 by respective check numbers 7730 and 7731. On May 3 and 20, 2005, Mr. King paid $5,150 and $14,000 by respective check numbers 7742 and 7770. The respondents never actually performed any remodeling work. Mr. Adams testified that Mr. King forged the written proposal and that neither Mr. Adams nor Bay Breeze submitted a proposal for the remodeling project. That testimony was neither credible nor persuasive. The financial harm to the public was substantial. Mr. Adams and Bay Breeze have not paid any restitution. Petitioner incurred investigative costs, excluding attorney fees and costs, in the amount of $844.07. The investigative costs are reasonable within the meaning of Subsection 489.13(3).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Mr. Adams and Bay Breeze guilty of committing the violations alleged in each Amended Administrative Complaint and imposing an aggregate administrative fine against Mr. Adams and Bay Breeze, collectively, in the amount of $10,000. DONE AND ENTERED this 12th day of March, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 12th day of March, 2007.
