Findings Of Fact Petitioner is the state agency charged, in conjunction with the Land Surveying Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapter 472, 455 and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent, Lars Dohm, was licensed as a land surveyor in the State of Florida, having been issued license number LS0002358. Nona Chubboy, in January 1989, was the owner of a lot described as Lot 25, Block J, Tierra Verde, Unit 1, Fourth Replat, Pinellas County, Florida, also known as 727 Columbus Drive East, Tierra Verde, Florida. Ms. Chubboy intended to build a dwelling on the lot, and secured building plans for the dwelling. She was to be her own contractor. In early 1988, she brought the building plans to the Respondent, and asked him to stake out only the lot at that time. Respondent copied the dimensions of the lot and dwelling from the building plans, and returned them to her. In early 1989, Respondent was retained to do a stakeout survey of the house and lot. Respondent requested that a site plan be prepared. Mrs. Chubboy secured it from the house designed, and delivered it to the Respondent. 6 The site plan shows a set back of 20 feet to a series of dotted lines, then a total of the length of the building from front to back of 63 feet, and footage of 37 feet to the rear of the property, which totals the exact distance of the length of the lot, 120 feet. With the site plan and the dimensions of the foundation of the building in his possession, the Respondent proceeded to stake out the foundation of the dwelling on or about January 10, 1989, and prepared a stakeout survey, thereafter. Construction began almost immediately on the project upon the completion of Respondent's stakeout. The masonry work was completed, and the framing of the home began. On or after January 23, 1989, Mrs. Chubboy was concerned the dwelling was too close to the street, and she measured the distance between the foundation and the street. She found it to be set back 20 feet and not 24 feet as intended. As prescribed by Pinellas County, the front set back in the zoning category for 727 Columbus Drive East was 20 feet. Such restriction would preclude the construction of a four foot in depth balcony supported by vertical columns as planned by Mrs. Chubboy in the setback area. Pinellas County did permit her to put in three foot deep balconies but without vertical columns. Mrs. Chubboy was required to redesign the front portions of the second floor of her home by adding beams for balcony supports, because vertical columns could not be used for support. These changes added to the cost of construction. The balconies constructed were not as functional as originally designed and resulted in their restrictive use. On or after January 23, 1989, Respondent provided Mrs. Chubboy with a signed, sealed and certified stakeout survey dated January 23, 1989, showing that the foundation was staked 20 feet from the front of the property, and further indicated that the building stakeout was 59 feet in depth. However, this is at variance with the site plan showed a total building length of 63 feet. When Respondent was confronted with the discrepancy between the actual stakeout and the site plan, he indicated that Mrs. Chubboy should have checked his work, and he was not going to do anything about the discrepancy. The stakeout survey contained the dimensions of the foundation layout, as contained in the building plans (59 feet), which were not contained in the site plan (63 feet). The as-built survey showed where the building was actually constructed, and the foundation was constructed exactly where Respondent staked the foundation. The site plan was inconsistent with the stakeout survey. The site plan clearly shows that the stakes should have been placed 20 feet from the front of the lot to a projection on the building, and the building should have a 63 foot depth from that point. The back of the lot was shown as 37 feet, which totals the length of the lot or 120 feet. The total dimensions of the building could not have been laid out from the site plan, as there is insufficient information on the site plan to give proper dimensions for the building. The dimensions of the building staked out were in accord with the dimensions on the building plan, as evidenced by the stakeout survey. The site plan does conflict with the building plan, as the site plan shows the layout of the building from front to back totals 63 feet. However, it also includes a projection which was intended to represent the second floor balconies in dotted lines. The stakeout survey indicates that the building length was 59 feet. In any event, the back of the building in the site plan is 83 feet from the front of the lot, but as it was staked, it was 79 feet. A skillful surveyor exercising ordinary prudence should have ascertained from the site plan and dimensions on the building plans that there was a 20 foot setback to a vague object. If you then examine the 63 feet shown on the site plan, and sketch out the 59 feet shown on the building plan, there is a four foot discrepancy between the 20 foot setback and where the building is supposed to start. The site plan was vague, and a skilled surveyor would have contacted his client for more specific information, and under such circumstances, should not have proceeded with the job until he had more specific information. A contractor or property owner has a right to rely on the professional ability of a surveyor to stake out the building site in accordance with the site plan or building plan. It is not the client's responsibility to check on the accuracy of the work of a professional. The purpose of a building's stakes is to mark the corners of the building in such a manner that construction can proceed from the stakes. The stakes were not to be moved. An "envelope-type" stakeout is a stakeout where the builder is free to move the building around. It is used where expert builders set their own offsets. It is not the type of stakeout required here. Such stakeouts were not for use by a person of Mrs. Chubboy's experience, nor is it indicated that Respondent was asked to do anything but stake specific corners. Respondent's assertion that the offset stakes were set so that the building could be moved is not credible. The "as-built" survey indicated that the building was placed directly where the stakes were placed by Respondent. Respondent further indicated that he was aware of the discrepancy of four feet between the building plan and the site plan, and chose to proceed with staking the house with a 20 feet set back and 59 feet in depth which added four feet to the back yard. This error by Respondent constitutes negligence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That Respondent pay an administrative fine of $1,000. That Respondent be placed on probation for one year subject to such reasonable conditions as the Board may specify. DONE AND ENTERED this 21st day of May, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 21st day of May, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11(in part), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, 31, 32, 33. Rejected as not supported by clear and convincing evidence: paragrahs 11(in part: cost of change orders in the design of the home), 12, 13, 34. Rejected as argument: paragraph 28, 29 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3(in part), 5. Rejected: paragraph 3(in part), 4, 6. COPIES FURNISHED: William S. Cummins, Esquire Senior Attorney Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Angel Gonzalez Executive Director Board of Professional of Land Surveyors 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel 1940 N. Monroe Street Tallahassee, FL 32399-0792 Mr. Lars Dohm Apartment #611 5790 34th St. St. Petersburg, FL 33711
Findings Of Fact Sidney Thurston, Respondent, is registered with the Petitioner as a real estate broker and was so registered at all times here relevant. On August 28, 1979 Lee H. Davis and his wife made an appointment with Respondent to look at lots for sale in an area being developed by Respondent's principal. At this meeting Davis indicated that he was interested in building a geodesic dome dwelling on the lot purchased. Respondent advised Davis of the deed restrictions on this tract which provided, inter alia, that plans were subject to architecture control review by Jomar Corporation. There was a conflict in the testimony of Davis and Respondent regarding the assurances given Davis by Respondent respecting the construction of a geodesic dome house and when this conversation occurred. However, I find it logical and probable that Respondent was advised by Davis that the latter desired and intended to erect a geodesic dome "round house" on this lot and Respondent told Davis that he foresaw no particular problems but the plans for all homes in this development had to be approved by the seller's representative. To cover Davis' interest in this matter Respondent, in preparing the Deposit Receipt (Exhibit 1), included the sentence, "Plans will be subject to architectural review by Jomar Corp., approval of which cannot be unreasonably withheld." Davis gave Respondent his check in the amount of $2,500 (Exhibit 2) when Exhibit 1 was executed. On 29 August 1978 Davis executed a typed contract for the purchase of this lot (Exhibit 3) which contained all provisions relevant to the issues contained in Exhibit 1. When the architect's plans were prepared, Davis submitted them to Jomar Corp. who disapproved this type of construction in the tract. When Davis demanded return of his deposit, the seller refused to execute a release of his claim on this deposit and Respondent refused to return Davis' deposit to him. Davis complained to Petitioner and this Administrative Complaint was subsequently filed. Respondent then referred the deposit to FBRE pursuant to Section 475.25(1)(c) Florida Statutes.
Findings Of Fact Nelson Martinez together with others purchased the truck distributorship known as Ocala Mack Sales, Inc. It was bought from George Raney on or about March 1, 1985. In January, 1989, Respondent still owed Raney $370,000 for that purchase. In furtherance of the purchase Martinez on behalf of the Respondent entered into a Floor Plan Financing Agreement with Mack Financial Corporation (MFC), a subsidiary to the Petitioner. Martinez also executed two distributor agreements with Petitioner. These events took place on March 26, 1985. Petitioner is a corporation which has its principal place of business in Allentown, Pennsylvania. That business involves the manufacture and sale of Mack trucks and related products. MFC is the credit administration arm of the Petitioner. It has its principal place of business in Allentown, Pennsylvania. The credit arm, at its discretion, serves as a lender to the several distributors, to include Respondent, in the financing of new and used trucks, parts and other Mack products. In accordance with his agreements, Respondent sells new Mack trucks, used trucks, Mack parts and products as well as servicing the vehicles. The geographical area which constitutes the principal territory which Respondent is responsible for consists of Marion, Gilchrist, Levy, and Dixie Counties in Florida. The Distributor Agreements entered into between Petitioner and Respondent do not prohibit sales in the international market or outside the assigned geographical area in Florida. At the inception of the distributorship Martinez signed a $375,000 promissory note in April, 1985. That obligation is referred to as the capitol loan. Its terms call for the repayment of the principal in five years under monthly installments of $6,250. Although the terms of the note call for the payment on the 15th of each month, by oral agreement during the life of the note Respondent was allowed to remit payment by the end of each month. It is specified in the agreement that Respondent upon default is obligated to pay the entire unpaid balance immediately. In Paragraph 1 to the Floor Plan Financing Agreement, MFC has reserved to itself the ability to refuse or limit Floor Plan Financing when in its judgment the credit standing or financial condition of the distributor, such as the Respondent, would not warrant an extension of credit. These limitations can occur in those instances where the distributor carries excessive inventory for a two-month period. Finally, should the distributor default on payment of any obligation owed to the Petitioner or MFC, MFC may refuse or limit the Floor Plan Financing. Respondent's Floor Plan Financing Agreement with MFC, at Paragraph 6, obligates the Respondent to keep the floor plan vehicles free of all taxes, liens and encumbrances. Paragraph 7 to the Floor Plan Financing Agreement between Respondent and Petitioner requires that the distributor keep cash received from the disposition of vehicles that were subject to the floor plan obligations separate from the other funds and property of the dealership. That same paragraph requires the Respondent to immediately remit the proceeds from the sales of any vehicle under the floor plan to MFC. Notwithstanding remarks by Mr. Martinez that he is not particularly familiar with the details of the Floor Plan Financing Agreement, he and other members of Respondent corporation would be subject to the Floor Plan Financing Agreement terms throughout the history of the dealership absent written amendments or oral agreements which restructured those terms. In executing the Distributor Agreements for sale of "Mack vehicles" and "Mack mid-liner vehicles," Respondent subjected itself to the possible termination of those agreements should the Respondent default on the payment obligations to Petitioner or MFC. George Brigman who was the district manager for MFC in the period 1980 through 1990 had explained the nature of the policies and procedures of Petitioner and MFC as it spoke to the Floor Plan Financing Agreement and Distributor Agreements executed between Petitioner/MFC and Respondent concerning payment of the floor plan, capitol loan and parts accounts. From the inception of Respondent's dealership until notice was given concerning the termination, Brigman was conversant with Respondent's financial position vis-a-vis its obligations to Petitioner and MFC. There is some question concerning Respondent's capitol position at the inception of its business. Nonetheless it chose to pursue the enterprise. Within six months its capitol position was weak and it continued to be weak until December, 1989, when Petitioner gave the Respondent the termination notice. Respondent's business practices contributed to this under capitalization. Concerning the related topic of repayment of the capitol loan, Respondent did not make the payment due on September 31, 1989. Thus, by October, 1989, it was in default. In particular, it was in default on October 5, 1989 when Petitioner took control of Respondent's truck inventory of new and used vehicles in an action in replevin. The cash flow problems which Respondent experienced over time were especially grave in that period January 1988, through October 1989. Concerning the inventory, MFC had established a $150,000 floor plan financing limit on used trucks which Respondent held in its inventory. In this connection Respondent participated in the evaluation of used inventory by submitting its opinion of the appraised value of a used truck as a predicate to the decision by MFC on the amount of floor plan financing to be assigned that truck. Respondent also pursued in-house financing of used trucks held in inventory. That practice had an adverse affect on cash flow and the ability to meet financial obligations incumbent upon Respondent. On October 1988 Respondent's used truck floor plan financing balance was $294,000. From that point forward it did not fall below the $150,000 limit, although there were occasions when some improvement was shown in Respondent's attempts to comply with the credit ceiling. Commencing November 1988, MFC in cooperation with the Respondent made a conscientious attempt to reduce the floor plan financing debt below the $150,000 credit limit. As an incentive, in January 1989 MFC imposed the requirement that Respondent sell a used truck before an additional used truck would be included within MFC Floor Plan Financing Agreement for used trucks. MFC also called for an assessment of each additional truck to be placed in the used truck inventory and floor planned by MFC. MFC went so far as to advise Respondent that should it not reduce the used truck inventory that it might be required to pay curtailments on the existing inventory. The concept of curtailment is one calling for the dealership to pay off a vehicle in inventory to reduce the floor plan debt. MFC in this time frame was particularly concerned about used trucks that had been held in Respondent's inventory for a long period of time. The range of financing of the used truck floor plan held by MFC in the January through June 1989 period was as follows: January, $281,956.45; February, $168,627.79; March, $162,673.63; April, $215,861.20; May, $236,863.54, and June, $274,841.73. In addition to the problems with control of used truck inventory, Respondent also had tax problems. In late 1988 Respondent owed the United States Government $190,000 in unpaid Federal Excise Tax. It also owed the State of Florida under a tax warrant issued in Alachua County, Florida, on July 24, 1989. That amount was $155,916.61, related to unpaid sales tax. Respondent had been aware of that obligation in early 1989. This refers to the fact that Respondent had consciously sold trucks, collected sales tax for those sales, and failed to remit to the State of Florida in the subject period. Nelson Martinez as the person responsible for Respondent's business affairs recognized the legal requirement to remit the sales and excise taxes to the respective governments. Although Martinez arranged a payment schedule to satisfy the tax warrant issued by the State of Florida, and met the payment schedule, that encumbrance still affected Petitioner's financial position as well as that of Respondent. Petitioner was aware of the arrangement to pay the tax lien and compliance by Respondent with the payment schedule, but this did not prohibit the Petitioner from taking the actions it did in view of the existence of that lien. Nelson Martinez had made no mention of the existence of the two tax obligations to either Petitioner or MFC with the exception that information about the tax was included in the June 1989 financial statement from Respondent to Petitioner. In view of the tax lien held by the State of Florida, Petitioner in the person of MFC notified Respondent that floor plan financing would not be extended for future new, and by inference used trucks, placed in inventory and that the sale of new trucks and parts from Petitioner to Respondent would be on a C.O.D. (collect on delivery) basis. This notification took place on September 20, 1989. When Respondent became a franchisee it was extended a $250,000 credit limit on its parts account. That credit limit was increased to $330,000 in May 1988. In the history of the parts account, Mr. Martinez had been informed by Brigman through correspondence of December 6, 1985, concerning the necessity to pay $172,000 outstanding on that account by December 16, 1985, or be placed on a C.O.D. basis. This was followed by correspondence of December 23, 1985, Brigman to Martinez concerning the payment of outstanding indebtedness on the parts account by January 15, 1986. Correspondence of February 20, 1987, from Brigman to Martinez continued to discuss the problem of payment on the parts account. That correspondence followed a letter of February 13, 1987, from Brigman to Martinez referring to the then outstanding balance of $548,321.53 effective January 30, 1987. Martinez was reminded that on February 2, 1987, the parts account had been credited in the amount of $49,612.77, leaving a balance of $498,808.76. The aging of that account was a current balance of $242,809.50 with $255,999.26 in the 1 to 30 day past due section. The correspondence called for a payment of $100,000 of that 1 to 30 day balance by February 16, 1987, with that 1 to 30 day balance to be paid by February 27, 1987. Similarly, during the year 1986, Respondent's parts account had been routinely 30 days past due and the practice by Respondent was to pay the 1 to 30 day amount when the following statement was received which was around the tenth of the month. Given credit problems on the parts account, Respondent was eventually placed on a C.O.D. payment basis from August through November, 1987 based upon its failure to pay the amounts owed that were over thirty days past due. In early 1988 Respondent arrived at an arrangement with MFC which made it responsible to pay only those amounts which were 31 to 60 days overdue by remitting payment by the end of each month. In August 1989 the amount over 30 days past due, or in the 31 to 60 category, which had not been paid was $69,000, and in September of that year the amount over 30 days past due was $165,000. The business practices of Respondent had led to problems with paying the parts bill as well as paying the taxes. In particular, some of the decisions on in-house financing of used trucks had promoted these problems. About $400,000 of this financing was on the books in the spring of 1989 attributed to persons who were poor credit risks that had been turned down by other lending institutions. Although Respondent had placed uncollected judgements against "an awful lot of the folks" that had bought the used trucks, the trucks themselves were not worth repossessing in the estimation of Respondent's General Manager Theordore D. Steele as an alternative means of collecting the debt. In addition to its indebtedness to Petitioner, Respondent had considerable other debt obligations for operating its dealership in the period in question. Notwithstanding Respondent's debt position, Petitioner during the history of the relationship with Respondent did not place undue pressure on the Respondent to honor its debt obligations to the Petitioner. When it was finally necessary to take the drastic action that occurred in September 1989 to protect its financial interest, Petitioner was justified in that course of conduct. Another problem experienced with the Respondent concerning its financial obligations to the Petitioner involved what is referred to as "sales out of trust." That condition occurs, generally stated, when a truck is not on the distributor's lot and payment has been received by the distributor but not remitted to MFC. The custom and practice calls for Respondent to remit to MFC upon payment from a customer; however, three or four days are allowed from receipt of the customer's payment until MFC receives its funds. Under those circumstances the transaction would not be considered a sale out of trust. MFC had made the Respondent mindful of the payment procedures on a number of occasions to include written explanations by correspondence of April 23, 1985; September 25, 1985, and July 21, 1987. Although these explanations were clearly understood by the Respondent, it made sales out of trust numerous times. It also failed to segregate the proceeds from sales of trucks in violation of the Floor Plan Financing Agreement. By a conversion report of January 1986, prepared for Petitioner, references were made to sales of out trust from November 27, 1985 to January 2, 1986. There were nine trucks involved, one of which was worth $18,000, three of which were valued in the $20,000 range and the remainder of which were in the mid $50,000 bracket. As a consequence, MFC picked up the Manufactures Statements of Origin (MSO) for new trucks and titles to all used trucks in Respondent's inventory to be released as the units were sold. This is in contrast to the usual practice of having the distributor control the MSOs and titles pending sales. The inability of Respondent to control the MSOs and titles remained in effect until October 1986. When an audit was conducted by MFC concerning the Respondent's operation effective July 21, 1989, it was discovered that a truck sale had been made on June 23, 1989, for which no payment had been made. The truck sold on June 23, 1989, was paid for at the time of the July 21, 1989, audit. A further audit on July 31, 1989, revealed that five trucks had been exported to Puerto Rico without the authorization of MFC. The trucks exported to Puerto Rico were paid for on August 3, 1989. Based on these events, Respondent was advised not to export trucks without payment being received. On August 18, 1989 another audit was made. MFC discovered that Ocala Mack had exported units to the Dominican Republic and Puerto Rico. The letters of credit on these units had expired. Respondent did not pay for the subject trucks at the time of the audit. Instead, Respondent indicated that payment would be made when the letters of credit were cashed. Respondent was again advised that if this practice of export and no arrangement for payment persisted restrictions would be placed on dealership sales. At the time of the September 8, 1989, audit by MFC, payment on the above described units had not been received. As a consequence, the MSOs and titles for vehicles in inventory were picked up with the exception of two MSOs which the Respondent requested be retained because they had acquired purchasers for those units. Respondent committed itself to immediately pay MFC for those two units when the sells were consummated. By correspondence of September 15, 1989, directed from Brigman to the attention of Martinez, payment was requested for the sale of a unit to Shell Company in the West Indies which had been previously sold. When an audit was performed on October 2, 1989, Respondent was found to be out of trust relating to the sales of the two vehicles for which the MSOs had been left with the Respondent following the September 8, 1989, audit. Respondent understood pursuant to the terms of its contractual arrangements with MFC that money received for sales, such as those described, belonged to MFC and not to Respondent and that Respondent was not in a position to use the proceeds from those sales at its discretion. Moreover, the circumstances concerning the sales did not fall into the category of exceptions related to trucks missing from the dealership which were away for preparation at a body builder with proof of that arrangement through a receipt at the dealership issued from the body builder; away from the dealership pursuant to a demonstration agreement with a copy of that agreement available at the dealership or based upon a deferred billing and assignment that had been agreed to by MFC. In the audit that took place on October 2, 1989, MFC demanded that all new and used vehicles be turned over to its control. Respondent was not willing to comply with that request without a court order. On that same date, October 2, 1989, Respondent shipped four 1989 model trucks to Cementos Nacionales in the Dominican Republic. The value of those trucks was $236,744. Respondent received payment for those trucks in October 1989, but never remitted payment to MFC as required. Instead, Respondent used the proceeds from the sale to pay $102,000 for the two previously described trucks, whose sale out of trust was noted at the October 2, 1989, audit, with a balance of the proceeds from the $236,744 being used to pay C.O.D. for parts and to pay other suppliers. At the time Respondent sold the four trucks in question, it had no other arrangements for independent financing of its dealer operations which would have allowed it to meet its obligations to MFC. Respondent had made attempts to secure alternate means of floor plan financing separate and apart from its arrangement with MFC but without success. Respondent had also attempted to secure working capital from Petitioner in the amount of approximately $300,000 in April of 1989. The request was not granted. When Respondent chose to distribute the proceeds from the sale of the four trucks in the manner described, that was a decision reached in exercising its discretion and business judgment unrelated to the advice of others. On September 29, 1989, when Respondent sold the two trucks which were found out of trust in the audit of October 2, 1989, it had anticipated being able to pay for those trucks based upon proceeds realized in the floor planning of five used trucks taken in trade. It held this opinion in spite of the fact that effective September 20, 1989, the Floor Plan Financing Agreement for new and used trucks to be obtained in the future had been terminated. Consequently, MFC refused to floor plan the five used trucks. Being unable to gain financing, Respondent advised Petitioner it would be unable to pay for the two new trucks and it did not pay for them until it misappropriated the funds from the sale of the Cementos Nacionales trucks. Having discovered that the two new trucks were missing from the dealership on October 2, 1989, MFC requested immediate payment for those trucks and that request was met with the offer of a postdated check but no guarantee was stated as to the date upon which that check would clear in extinguishing the debt for the two trucks. This eventuated in the request from Petitioner to Respondent to have the Respondent surrender possession of the truck inventory under financing by MFC. Respondent, having refused to surrender those items on October 2, 1989, Petitioner obtained a Writ of Replevin which was served on the distributorship on October 5, 1989. At that time, Petitioner took position of the new and used truck inventory in accordance with the collateral security provisions set forth in the Floor Plan Financing Agreement. Petitioner left Respondent with the parts inventory. In pursuing the Writ of Replevin, Petitioner had in mind the existence of the tax lien to the State of Florida, delinquencies associated with the parts account and capital loan, the out of trust situation with the two trucks which have been mentioned and Respondent's previous history concerning delinquent payment for trucks which Respondent sold. From that point forward sales to the Respondent by Mack and MFC associated with parts and new vehicles has been on a C.O.D. basis. On December 11, 1989, Petitioner gave notice of termination to Respondent. The basis for the termination concerns defaults in the payment obligations from Respondent to Petitioner associated with floor plan indebtedness, parts account indebtedness, capital loan account indebtedness, and in particular the failure to make payment for the Cementos Nacionales trucks. That termination notice was in accordance with and authorized by paragraphs 22e(1) and 25(D)(1) of the Distributor Agreements between the Petitioner and Respondent that had been entered into on March 26, 1985. In addition to concerns about the viability of the Respondent, Petitioner had concerns of its own associated with its financial position. Petitioner had lost $185,000,000 in the calendar year 1989. It caused the Petitioner to be more cautious in its financial dealings to include the business conducted with its distributors. Paul Ritter, a Senior Vice President of Sales with Petitioner, made the decision to terminate. He had adequate cause for the termination. Respondent's attempts to minimize the significance of its shortcomings that led Petitioner to take the action calling for termination and to ascribe motives to the Petitioner which Respondent deems to be a matter of pretext are unavailing. As to the latter, pursuant to Section 320.641(3), Florida Statutes, Respondent alleges that the reason for termination is unfair and that Petitioner took the action of termination as part of Petitioner's attempt to interfere with the export business which Respondent conducted and as an overall pattern of discriminatory treatment of Respondent by Petitioner that would include threats and intimidation directed from Petitioner to Respondent. Although the Distributor Agreements did not prohibit sales in the international market, Petitioner regarded this as contrary to its policy and adverse to Mack International, a subsidiary to the Petitioner which conducted sales in the international market place. Mr. Martinez made known to the Petitioner that he intended to conduct sales in the international market place at the inception of his franchise. Indeed, in the history of the franchise approximately a third of the sales were in the international market place. Petitioner was not pleased with these activities and monitored them over time. Respondent, through the knowledge of its principal officer, Mr. Martinez, was conversant with the truck business in Central and South America where it conducted sales. One of the reasons for Petitioner's concern about the sales activities by Respondent in the international market place was the adverse economic impact that would occur to Mack International in that the price structure by Respondent was cheaper than that of Mack International. Petitioner requested Respondent to stop doing business in the international market place and tried to discourage Respondent's customers from buying from Respondent in the international market place. Petitioner even went so far as to tell the Respondent that these activities might jeopardize the franchise. In spite of this friction over sales activities in the international market place, the facts presented do not lead to the conclusion that Petitioner's resistance to Respondent's sales activities in that market lead to the inability to meet debt obligations referred to before or that Petitioner used the nonpayment of those debt obligations as a ruse for terminating Respondent when Respondent's activities in the international market place was the true reason for termination. Likewise, although Petitioner was not pleased with some of the sales activities by Respondent outside of its domestic territory in territories of other domestic dealers, this was not the reason for terminating the distributorship. Nor did the Petitioner terminate the Respondent's dealership based upon a disagreement over the distribution of sales effort discounts for sales to out of territory customers. Over the history of the franchise, Respondent sold approximately one third of its vehicles in domestic territory not specifically assigned to it, and which it was allowed to do. Petitioner became aware in 1989 that Respondent had taken on the sale of Western Star Trucks which competed with sales of Petitioner's product and it also had undertaken the sale of U.D. (Nissan) vehicles. This was a matter of concern to the Petitioner, but did not influence its decision to terminate Respondent's franchise for failure to honor financial obligations. Any suggestion by Respondent that the basis for termination was related to ethnic discrimination against Hispanics is rejected.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which upholds the decision to terminate/cancel Respondent's franchise. DONE and ENTERED this 10th day of July, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, 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 July, 1991. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the fact proposals of the parties. Petitioner's Facts Paragraph 8 is not necessary to the resolution of the dispute. Paragraph 24 is a incorrect portrayal of the transcript pages cited to. Paragraph 26 is not necessary to the resolution of the dispute. Paragraph 41 is rejected. Paragraph 42 is rejected with the exception of the reference to placement on C.O.D. on September 20, 1989. Paragraph 65 is not necessary to the resolution of the dispute. The last sentence of Paragraph 87 is not necessary to the resolution of the dispute. Respondent's Facts Paragraph 3 is not necessary to the resolution of the dispute. In Paragraph 10 the impression of one witness concerning what another witness thought is rejected. Paragraphs 18 through 26 are not necessary to the resolution of the dispute. Paragraph 27 is rejected in that aspect which attempts to report one witness's impression of the attitude of another witness concerning mental state. Paragraph 38 is rejected. Paragraph 39 is not necessary to the resolution of the dispute. Concerning Paragraph 41, the agreements between the parties did not require that Respondent be made aware of the Petitioner's choices before those choices were carried out. Paragraphs 43 and 44, see above. The matters set forth in Paragraph 45 do not excuse Respondent's nonpayment. Paragraph 52 is rejected. Paragraph 53 constitutes argument. Paragraphs 57 and 58 are not necessary to the resolution of the dispute. Paragraph 59 is rejected as is Paragraph 62. Paragraph 66 is accepted but it does not lead to a different result in the case. Paragraphs 67 and 68 are irrelevant. Paragraph 69 is rejected in the last sentence. Concerning Paragraph 70, the change in policy of September 29, 1989 did not relate to existing inventory but it did relate to inventory to be gained beyond that point, to include used inventory. As to Paragraph 71 it can be inferred that the used truck floor plan was affected by the September 20, 1989 decision, especially given existing problems with used truck inventory. As to Paragraph 72 it is accepted but the choice of placement on C.O.D. was justified. Paragraph 73 is not necessary to the resolution of the dispute. As to Paragraph 74 the suggestion that the parts account was current is rejected. The balance of the paragraph is accepted. As to Paragraphs 77 and 78 this is not an accurate statement of the present case. Paragraph 79 is rejected. Paragraph 81 is accepted but it is not sufficient to cover the two out of trust sales which amounted to $102,000, more importantly, Respondent owed Petitioner for the two new trucks aside from the attempt to floor plan the five units as a means of paying for the two new trucks. Paragraph 82 is rejected. Paragraphs 83 and 84 are accepted. Paragraph 85 is rejected. As to Paragraph 86, see discussion for Paragraph 81. Paragraph 90 is accepted but does not change the outcome. Paragraph 91, see above. Paragraph 92 is irrelevant. Paragraph 93 is rejected. Paragraphs 94 and 95 are accepted. Paragraph 98 is accepted but does not change the outcome. Paragraph 99 is accepted. Paragraph 101 is accepted with the exception of the value of receivables and value of used truck inventory which is rejected. Paragraph 103 is rejected in that the parts were not taken. Paragraphs 104 and 105 are irrelevant. Paragraph 106 is accepted. Paragraphs 109 and 110 are accepted. Paragraph 111 is rejected. Paragraph 115 is irrelevant. That portion of Paragraph 116 attributable to the position of the Associates is rejected as hearsay. Paragraph 118 is irrelevant. Paragraphs 119 through 123 are not necessary to the resolution of the dispute. Paragraph 128 is rejected. Paragraph 129 is accepted as is Paragraph 131. Paragraphs 132 through 134 are irrelevant. Paragraph 136 is irrelevant. Paragraph 137 does not establish ethnic discrimination as a basis for termination. Paragraphs 138 and 139 are rejected. Concerning Paragraph 140, the December 11, 1989 letter constituted notice of termination. Paragraphs 141 and 142 are irrelevant. The balance of the suggested fact finding by the Petitioner and Respondent is subordinate to facts found in the Recommended Order. COPIES FURNISHED: Dean Bunch, Esq. Robert L. Hessman, Esq. RUMBERGER, KIRK, ET AL. 106 E. College Avenue, Suite 700 Tallahassee, FL 32301 Roy Cohn, Esq. GIBBONS, SMITH, COHN & ARNETT 501 E. Kennedy Boulevard, Suite 906 Tampa, FL 33602 Irwin J. Weiner, Esq. 50 S.E. First Avenue Ocala, FL 32671 Scott R. Corbett, Esq. 550 N. Bumby Avenue, Suite 280 Orlando, FL 32803 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B439 Tallahassee, FL 32399-0500
Findings Of Fact At all pertinent times, respondent John G. Wood was a registered real estate broker and a registered general contractor; and respondent Bruno Pais was one of approximately 15 registered real estate salesmen employed by respondent Wood, trading as Wood Realty. At the time of the hearing, approximately 125 people were employed in respondent Wood's construction business, which had built some 3,000 houses. John Wood and Associates, respondent Wood's construction firm, built a house at 903 Wakulla Drive in Winter Haven, Florida, on what had previously been a citrus grove. The house sits on a corner lot and adjoins a heavily travelled state road. In 1975, after the house had been built, respondent Wood learned that the ground underneath the patio near a glass door at the rear of the house had settled. He directed a construction superintendent to reinforce the footing underneath the house and to replace the patio. This repair proved ineffectual, however. In the summer of 1976, respondent Wood engaged Ivan Dewitt King, Jr., a civil engineer and land surveyor with some 30 years' experience, to evaluate the house at 903 Wakulla Drive and to advise what should be done to repair the house. Mr. King examined the foundation and dug several test holes. He found that the foundation had deflected downward one-quarter to one-half inch and that the soil was softer where the deflection had occurred than elsewhere. Although the foundation had bowed, it had not cracked. There was no sinkhole in the area. The softness of the soil might have been the result of a tree's having been uprooted. Mr. King recommended excavating under the existing foundation, pouring concrete to make a new, broader footing underneath the then-existing footing and, after the new footing had cured, placing jacks on it to jack up the original footing and hold it there until the space between the old and new footings was filled with concrete. Mr. King suggested a "twenty- four inch footer to go underneath the existing one, (T.56) and advised respondent Wood that taking these steps would solve the problem. In August of 1976, at respondent Wood's instance, Jeffrey N. Riner, who had been in the foundation and concrete business for some ten years, went in and dug out. . below the foundation and put like a three or four foot wide by about fifteen foot long solid concrete pad with steel across both ways coming up and out of it, and then. . took jacks, like twenty- ton jacks, and jacked the foundation and. jacked. . the slab back. . as close as possible to its original. . place, and then poured the concrete back underneath in between this foundation and the original foundation. (T. 65). Mr. Riner testified that, in his opinion, "that part of the house will never go anywhere." (T.65) After this second repair, respondent Wood observed the house and observed "no structural problems" (T.42) "other than minor cracks in the masonry and expansion cracks." (T.41) Originally, respondent Wood had sold this house to Fred Crabill. Shortly before the second repair, respondent Wood took the house back as partial payment for another house he sold Fred Crabill. Some six months after the repair, on February 17, 1977, James D. and Erma C. Anderson signed an agreement to purchase the house. Driving by, Mr. Anderson had noticed the house and had thought about buying it, but decided to do so only after respondent Pais showed him the house. Respondent Pais was aware of the condition of the soil, that the foundation had deflected, and that repairs had been done. He had been given to understand that there was no longer any structural problem with the house. Mr. Anderson asked respondent Pais if there were anything wrong with the house, and respondent Pais assured him that there was nothing wrong. When he first inspected the house, Mr. Anderson observed that the house was dirty, but noticed no other problems. After the Andersons moved in, they found that the bath tub did not drain properly. The drainage problem was not caused by settling of the house or deflection of the foundation, and was known to neither respondent until after the Andersons vacated the premises. After Mr. Anderson removed some sliding glass doors for cleaning, be had difficulty opening and closing the doors. The Andersons began noticing hairline cracks in a rear wall, two or three of which grew over time to be about one-quarter inch wide at their widest points. These cracks reflected minor setting of the soil underneath the house, attributable to vibration caused by nearby traffic. (T.43) The Andersons never made a down payment on the house. Under their agreement with respondents, the sale was to be closed on or before April 3, 1977, with the Andersons making mortgage payments until the closing. The closing was postponed while the Andersons tried to sell other real property so as to be able to apply the proceeds to the house on Wakulla Drive. In September of 1977, respondents threatened to evict the Andersons unless they closed the transaction. On September 11, 1977, the Andersons, who had learned by then of the repairs previously done to the house, and who were worried about the cracks they had seen, moved out. Thereafter, a complaint was filed with petitioner. In November of 1977, respondents caused some re- grouting to be done to repair cracks in the mortar first observed by the Andersons on a rear wall of the house. Subsequently, Lane A. Bohannon took the house in trade for other property. He knew that the foundation had been repaired at the time. Mr. Bohannon, who rents the house, was unaware of any problems with the house's settling or with the operation of the sliding glass doors during the approximately eight months that he had owned the house.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint as against John G. Wood. That petitioner suspend Bruno Pais' registration as a real estate salesman for thirty (30) days. DONE and ENTERED this 26th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Stephen Baker, Esquire and John Wood, Jr., Esquire Suite 2, 200 Avenue K, Southeast Winter Haven, Florida 33880
The Issue The issue in this case is whether the Respondent, the Department of Labor and Employment Security, acted fraudulently, arbitrarily, illegally, or dishonestly in rejecting the bid of the Petitioners to lease office space to the Respondent on the ground that the proposed space was not "dry and measurable" at the time of the bid.
Findings Of Fact The bid specifications in the solicitation by the Respondent, the Department of Labor and Employment Security (DLES) for its Lease No. 540:0977 (office space in Orange County) required that proposed space be in an existing building "dry and capable of being physically measured to determine net rentable square footage at the time of bid submittal." The requirement that proposed office space in response to Lease No. 540:0977 be "dry and measurable," as described in the preceding finding, is a long-standing, standard requirement found in the bid specification form developed by the Department of Management Services (DMS) (formerly the Department of General Services (DGS)) for use by all agencies of the State of Florida. DMS' (and, formerly, DGS') long-standing interpretation of the "dry and measurable" requirement in the standard bid specification form is that the building must have a roof and walls, with windows either in place or covered over so that the building interior stays dry in adverse weather conditions. In response to the DLES solicitation for bids for its Lease No. 540:0977, the Petitioners submitted a bid for space in a former Publix strip shopping mall, formerly known as the Northgate Shopping Center, located at 5023 Edgewater Drive, in Winter Park, Florida. At the time of the bid, the mall was unoccupied and in the process of being renovated and was a designated construction site. The building had been gutted, and the glass in the front of the building had been removed. The glass could be referred to as "windows" but actually would make up the top two-thirds of the front wall of the building. As a result, without the glass, the front "wall" consisted of a three to four foot rise of concrete blocks, and the front of the building was otherwise open. There was a 12-foot, eight-inch overhang over the front "wall," but wind-blown rain could enter the building, and apparently did. (There was standing water on the floor of the gutted building. There also were missing or unsecure doors along the back wall of the building.) When Susan Early, the DLES employee in charge of the bid solicitation, received the Petitioners' bid and saw the photographs of the building required by the bid solicitation, she questioned whether the building was "dry and measurable." To help answer her question, she asked another DLES employee, who was located in the Orlando area, to go to the site, take pictures, and send a report of her findings, together with the photographs. The report and photographs indicated to Early that the building was not "dry and measurable." But, instead of relying on the information she had, she sent another, Tallahassee-based DLES employee to the site and received confirmation of her understanding as to the condition of the building. She then contacted Mary Goodman, the person at DMS who had the most experience in the area of soliciting and evaluating bids of leased office space, and who ultimately would be responsible for approving the DLES lease. Goodman advised Early that the DLES should reject the Petitioners' bid as non-responsive because it was not "dry and measurable." The DLES also rejected, as being non-responsive, the only other bid received in response to the bid solicitation. In the Final Order, The Koger Company v. Div. of Admin. Hearings, DOAH Case No. 88-3357BID, entered September 21, 1988, the Division of Administrative Hearings rejected a bid as not offering "dry and measurable" space because the building "had a roof, a slab, and walls, which comprised 50 percent of the vertical plane from the slab to the roof." The bidder's argument that the building "had a four foot overhang" and that "the overhang prevented rain from entering the building" was rejected as not being credible "given the large amount of window space which was not enclosed." The winning bid, which was upheld as being a "dry and measurable" was an abandoned bowling alley that "had walls, a slab, and portions of the exterior walls were boarded over, possibly in the location of existing windows or window openings. The roof did have a hole, which was approximately three feet in length and allowed water to leak into the building." (Citations to the record omitted.) The facts derived from the Final Order, The Koger Company v. Div. of Admin. Hearings, supra, do not in themselves prove that the DLES acted fraudulently, arbitrarily, illegally, or dishonestly in rejecting the Petitioners' bid. Although the Petitioners' bid in this case was for a building that once had a certificate of occupancy, the Petitioners' bid in this case is more similar in other respects to the rejected bid than the successful bid in the Koger Company case. For example, like the rejected bid in the Koger Company case, the Petitioners' bid had partial exterior walls. The Petitioners proved that they also submitted a bid for the lease of office space in the Northgate Shopping Center in response to a bid solicitation by the Florida Department of Corrections (Parole and Probation Commission). The bid was evaluated, along with others, and the lease was awarded to another bidder. It can be inferred from this that the Department of Corrections made a determination that the Petitioners' bid was "dry and measurable." However, those facts alone do not prove the DLES, in this case, acted fraudulently, arbitrarily, illegally, or dishonestly. They only would prove that the two agencies interpreted the phrase "dry and measurable" differently. There also was evidence that the Department of Health and Rehabilitative Services (HRS) interprets the phrase "dry and measurable" differently than DLES does. But it was not proven whether HRS would have accepted a bid for space having the characteristics of the Petitioners' bid. The Petitioners argued persuasively from the evidence presented that the requirement that bid space be "dry," as interpreted by the DMS and the DLES, can be impractical when applied to the real world of building renovations and may exclude possible good lease opportunities. Sometimes, space in a building under construction or substantial renovation can be leased at lower rates. Presumably for that reason, the Department of Corrections (Parole and Probation Commission) and HRS interpret the requirement differently. But, given the requirement that bid space be "dry," it cannot be said that the DLES acted fraudulently, arbitrarily, illegally, or dishonestly in rejecting the Petitioners' bid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Labor and Employment Security, enter a final order rejecting the bid of the Petitioners to lease office space to the Department in Winter Park, Florida, Lease Number 540:0977. RECOMMENDED this 9th day of September, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 9th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3922BID To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. It should be noted, however, that the missing "windows" in front made up approximately two-thirds of the front wall of the building. Rejected as not proven, according to the DLES interpretation of the "dry and measurable" requirement, that the bid space was "existing." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. It should again be noted that the missing "windows" in front made up approximately two-thirds of the front wall of the building. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected in part as not proven, in part as argument, and in part as irrelevant. It also should again be noted that the missing "windows" in front made up approximately two-thirds of the front wall of the building. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. In part, rejected as irrelevant and not proven. (Evidence as to the HRS manual and related facts was excluded as being irrelevant.) The rest is accepted but largely subordinate and unnecessary. Irrelevant and unnecessary. (It was established at the hearing that the Petitioners' bid was rejected only because the bid space was not "dry"; DLES does not contend that it was not "measurable.") Accepted but subordinate and unnecessary. In part, irrelevant, subordinate and unnecessary (what Mr. Taylor's definition is.) In part, cumulative. In part, rejected as argument. In part, accepted and incorporated (that the requirement that bid space be "dry," as interpreted by the DMS and the DLES, can be impractical when applied to the real world of building renovations and may exclude possible good lease opportunities.) Rejected as irrelevant and unnecessary. (Assuming it acts consistently from case to case, an agency's choice not to waive technicalities cannot be called "acting fraudulently, arbitrarily, illegally, or dishonestly.") Rejected as being argument and as not proven. Respondent's Proposed Findings of Fact. 1. Except for the number of square feet, which is in error, accepted and incorporated. 2.-5. Accepted and incorporated. 6. Rejected as contrary to the findings of fact and the greater weight of the evidence that there were no walls in front. (They extended only about a third of the way up to the ceiling.) 7.-8. Accepted and incorporated. 9. Accepted but subordinate and unnecessary. COPIES FURNISHED: Alan Taylor 170 East Lake Elbert Winter Haven, Florida 33881 Edward A. Dion, Esquire Assistant General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle South East Tallahassee, Florida 32399-2189 Shirley Gooding, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle South East Tallahassee, Florida 32399-2152 Cecilia Renn, Esquire Chief Legal Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle South East Tallahassee, Florida 32399-2152
The Issue Whether the Respondent, School Board of Broward County, Florida (Respondent or Board), may reject all bids as proposed for Bid No. 2002-02-FC, Group A1, or whether such action is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact The Respondent is the entity charged with the responsibility of governing the public schools within the Broward County School District. As such, the acquisition of school properties and attendant improvements fall within the Board's legal authority. These cases involve the procurement of relocatable buildings suitable for classroom purposes. Pursuant to its authority, on or about December 27, 2002, the Respondent issued a bid that is the subject matter of the instant challenge. The bid, identified in this record as Bid 2002-02-FC, sought proposals for the procurement of district-wide relocatable buildings. In a prior time these buildings were known as "portable classrooms" or "portables." In the post-Hurricane Andrew world, these structures are now pre-engineered and constructed of concrete or steel (or a hybrid of both) and must be, by design, capable of being relocated to various sites. The Petitioners, Royal and Padula jointly, and the Intervenor, James B. Pirtle Construction Company, Inc. (Pirtle or Intervenor), design, construct, and install such structures. In these cases the bid sought several distinct proposals. First, the project sought vendors who would provide and deliver concrete relocatable buildings (Group A1). Group A2 (not at issue in this proceeding) sought steel relocatable buildings. Group B (also not at issue in the instant case) sought site adaptation prices for landscaping, lighted covered walkways, steps, ramps, and other engineering incidental to the installation of the buildings. The advertisement for the bid carried the same generic information as to all groups. The bid documents also contained many terms that were applicable to all groups. Pertinent to the issues of these cases are the following excerpts from the bid document (Joint Exhibit 2). The order of the excerpts should not suggest any significance. The excerpts are listed in this manner solely for convenience sake: BASIS OF AWARD In order to meet the needs of the school system . . . each Award will be . . . up to three responsive and responsible bidders meeting specifications, terms and conditions. Individual projects will be issued . . . based upon lowest cost among one or more bidders per project as determined by the project manager. Therefore, it is necessary to bid on every item in the group, and all items in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on Document 00410 Bid Form. SBBC [the Respondent] reserves the right to procure goods from the second and third lowest bidders if: a) the lowest bidder cannot comply with delivery requirements or specifications; b) the lowest bidder is not in compliance with delivery requirements or specifications on current or previous orders; c) in cases of emergency; d) work may be issued to multiple contractors if in the opinion of The School Board of Broward County, Florida or its staff the work cannot be completed by a single contractor in the specified time such as a Summer, Winter or Spring Break or if it is in the best interest of SBBC to do so regardless of reason. ARTICLE 4 BIDDING PROCEDURES 4.01 FORM AND STYLE OF BIDS A. Bids shall be submitted on forms identical to Document 00410, Bid Form, and other standard forms included with the Bidding Documents. The following documents are required to be submitted with the Bid: * * * SIGNED SEALED ARCHITECTURAL AND ENGINEERING DESIGN DRAWINGS OF THE STRUCTURES TO BE PROVIDED (FOR RELOCATABLE BUILDINGS BID ONLY) 5.03 REJECTION OF BIDS AND IRREGULAR PROPOSALS * * * The Owner shall have the right to reject any or all Bids, reject a Bid not accompanied by a required bid security, good faith deposit, or by other data required by the Bid Documents, or reject a Bid which is in any way incomplete, irregular or otherwise not Responsive. The Owner may waive any formality in the bid requirements and award or not award the contract in the best interests of The School Board of Broward County, Florida. (Emphasis in original not shown) In addition to the foregoing, the bid documents contained detailed and specific design criteria that set forth information such as the slope of roofs, the roof spans, the mechanical systems, ventilation, plumbing, windows, and stoops. These design criteria covered hundreds of topics and encompassed virtually every facet of the structures. To review each bid proposal as to whether each design specification was met would require countless man-hours. The issue of how to review the bid proposals was not adequately anticipated by the Respondent. From the outset the bid document evolved from unusual circumstances. Whether the bid document was intended to be a request for proposals (RFP) or an invitation to bid (ITB) was a primary confusion among the Board's staff. If the proposals were to be deemed responsive or not and then ranked solely on price (thus making the bid process more like an ITB) how could staff effectively determine the threshold question of responsiveness? If the proposals were to be ranked based upon a point or qualitative approach (more like an RFP) where were the criteria by which to score the proposals? In fact, there were no objective criteria disclosed in the bid document by which a proposal could be evaluated. More curious is that no bidder brought this lack of evaluation criteria to the Board's attention during the mandatory bidder's conference. Moreover, no one challenged the bid specifications. Presumably, the bidders believed it was an "all or nothing" award. That is, if they were the lowest responsive bidder, they would receive the award. The question of who would be responsive and how that decision would be resolved did not come to light until after the bids had been opened. At the mandatory bidders' conference conducted on January 14, 2003, the bidders posed questions in the form of requests for information. In response, the Respondent issued six addenda intended to cover the questions posed. None of the responses addressed how the bid proposals would be evaluated. If anything, Addendum No. 3 added to confusion related to what documents must be submitted with the bid proposal. More specifically, Addendum No. 3 provided, in pertinent part: [Addendum 3, question and response to inquiry] 9. Can schematics be submitted with the bid instead of the signed and sealed architectural and engineering design drawings of the structures that are requested in Document Article 4.01.A.6? Response: Signed and Sealed Architectural/Structural Drawings are required to be submitted with the Bid. The Requirement for Mechanical and Electrical signed and sealed drawing is waived, however all engineering associated with the Relocatable Buildings will require engineer of record signed and sealed drawings and calculations prior to issuance of building permit DRC review. Nevertheless, when the bid proposals were opened on March 4, 2003, the Petitioners and the Intervenor were found to be the three lowest bidders. If responsive, the Intervenor would be considered the lowest bidder with the Petitioners being considered alternate vendors for the procurement. Unsatisfied with the preliminary determination that the Intervenor was the lowest bidder, the Petitioners timely challenged the bid award. The Petitioners maintained that the Intervenor had not timely provided sealed design drawings as required by the bid document. Petitioners argued that the Intervenor had attempted to impermissibly amend their proposal by late-filing a set of structural drawings for the bid. Thus the initial bid protest sought to determine what design drawings were required by the bid and whether the Intervenor had timely supplied such drawings. The Petitioners contended that the Intervenor's submittal should be rejected as non-responsive to the bid. Whether they had complied with the full dictates of the bid requirements was potentially at issue as well. While the initial bid protest was referred to the Division of Administrative Hearings and scheduled for formal hearing, the parties continued to attempt to resolve the issues. It was apparent that the bidders had not submitted identical proposals. How the proposed products had been compared and evaluated was difficult to determine. From the Respondent's committee members came the disclosure that the decision of determining whether the bidders had complied with the bid ultimately came from three fashioned questions. If the structure proposed was pre- engineered, relocatable to various sites, and suitable for educational purposes, the entry was deemed responsive. Based upon this assessment the Petitioners and the Intervenor were deemed responsive and their bids ranked based upon price. This approach did nothing to discern if the designs were comparable in quality, if they met the bid design criteria, or if the drawings were even sufficient to comply with the dictates of the bid. The first posting of the bid award for Group A1 was entered March 18, 2003. On March 21, 2003, the Petitioners timely filed their notices of intent to protest the award of Group A1 to the Intervenor. Thereafter they timely filed the petitions to protest the award and the initial protest was forwarded to the Division of Administrative Hearings. The protests did not encompass Group A2 or Group B. No bidder protested the proposed awards for Group A2 or Group B. In fact, the Respondent went forward on those procurements and awarded contracts for those groups on April 1, 2003. The Respondent did not award the contract award for the Group at issue in this proceeding. It must be noted that the instant procurement is not the Board's first experience with the procurement of concrete relocatable classrooms. In fact, the Board has purchased similar structures through a procurement contract that the Palm Beach County School Board holds with its vendors. One of the Respondent's concerns when the instant bids were reviewed was why the cost per unit for the bids in this case was higher than the Palm Beach County amount. As it turned out, the installation economy of multiple units at one site directly impacts the cost of the relocatable structures. Royal confirmed this information after the bids had been opened. When the Respondent's staff met with its counsel in preparation for the initial bid dispute (before the Board elected to reject all bids) the cost of the bid, the lack of full evaluation of the bidders' proposals, and the issues of the first protest were openly discussed. By that time any irregularities with the bid documents could not be repaired as to the contracts already awarded, but as to the instant matter the Respondent could revisit the circumstances and determine its best course. As a result of that reassessment, the Respondent elected to reject all bids regarding this group and attempt to re-bid the procurement with more certain terms. To that end on May 9, 2003, the Respondent issued a revised bid decision that provided in pertinent part: The Facilities and Construction Management Division intends to recommend that The School Board of Broward County, Florida, at the School Board meeting on June 3, 2003, reject all bids received for Group A1 and authorize revising the bidding documents and re-bidding. The rejection of all bids received for Group A1 is made due to serious flaws and ambiguities contained in Document 00200 4.01.A-6 as modified by Addendum No. 3. The Division intends to revise the bidding documents to delete the requirements that bidders submit plans with the bids; include ranges of unit quantities within the bid form; include one or more additional types of construction of the classroom buildings including a composite concrete/steel structure; and incorporate within the new Invitation to Bid all revised terms and conditions that were released through addenda in this procurement. The Petitioners timely filed protests regarding this new decision by the Board and the instant action ensued. By issuing the revised decision to reject all bids the Respondent intended to resolve all issues and to cure the perceived problem with the lack of consistent evaluation of the bidders' proposals. More specifically, the Respondent would be able to assure that the project design could comport with the specifications sought; specify whether architectural or engineering drawings were required and when (it was hoped that the confusion over "architect" vs. "engineer" could be eliminated); and obtain a substantial discount based upon economies from multi-unit purchases for a single site. None of the objectives sought were pre-textual or contrived. Additionally, by avoiding any process that would require a detailed reviewed of the bidders' proposals, countless man- hours could be saved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a Final Order affirming the decision to reject all bids in this matter. DONE AND ENTERED this 20th day of November 2003 in Tallahassee, Leon County, Florida. S ___________________________________ D. PARRISH 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 20th day of November 2003. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Usher Larry Brown, Esquire Brown, Salzman, Weiss & Garganese, P.A. 225 East Robinson Street, Suite 660 Orlando, Florida 32801 Steven L. Schwarzberg, Esquire Schwarzberg & Associates Esperante, Suite 210 222 Lakeview Avenue West Palm Beach, Florida 33401 Thomas R. Shahady, Esquire Adorno & Yoss, P.A. 350 East Las Olas Boulevard, Suite 1700 Fort Lauderdale, Florida 33301 Robert Paul Vignola, Esquire Broward County School Board C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
The Issue The issues presented here concern the questions of whether Intervenor's response to Request for Proposal (RFP) number 700:0561, for the lease of office space was responsive to the RFP; whether the Respondent in rating the responses to the proposal made a reasonable application of the rating formula and which prospective lessor should be awarded the contract, if anyone.
Findings Of Fact Respondent through RFP number 700:0561, solicited responses for the lease of office space for its employees working in the Daytona Beach, Florida, area. A copy of that solicitation may be found as Joint Exhibit 1 admitted into evidence. Respondent received timely responses from the Petitioner and Intervenor. Those responses were in keeping with the requirement to submit sealed bids on or before 11:00 a.m. April 19, 1990. Prior to the deadline for submitting bids a preproposal conference was conducted on April 5, 1990. A copy of the minutes of that conference may be found as Petitioner's exhibit 1 admitted into evidence. Among the highlights in this conference, as commented on in the minutes, was a discussion concerning the requirement for the provision of restrooms. The specific requirement for restrooms is set forth in the RFP at page 5 under B.6. and identifies the fact that the restrooms must meet standards for special facilities for physically disabled and calls for public restrooms for men and women and staff restrooms for men and women, describing the conveniences for each of those facilities. No indication is made concerning the placement of those restrooms. On the other hand, in the course of a suggested floor plan, Attachment H to the solicitation document, public restrooms are depicted in the reception area and staff restrooms are shown in the staff service area. This Attachment H is under the auspices of the space requirement criteria announced at B.1. on page 4 of the solicitation document, in which the comment is made "see floor plan, Attachment H, for suggested configuration of offices and rooms." The remarks concerning restrooms that were made in the course of the preproposal conference show that by the discussion in that conference it was determined that two male restrooms and two females restrooms, one each for the public and one each for the staff were contemplated and that they must meet handicapped standards. According to the minutes Petitioner asked if there was a requirement for the men's restroom to have urinals or would an additional water closet suffice and he was told that a water closet would suffice. No other discussion was held about the restrooms. The space requirement criteria, to include the discussion of the requirements for restrooms, do not contemplate that in order for a prospective lessor to be successful in responding to the solicitation, that it would be necessary for that prospective lessor to present a design which closely approximated that set forth in Attachment H. It could be expected that a submission which more closely resembled the suggested configuration would be entitled to receive a higher score under the evaluation criterion set out at C.2. Similarly the score under evaluation criterion C.2. would be greater for the prospective lessor who most closely approximated the number and size of spaces that are described at B.1. wherein it is stated: Approximate number/size a) 0 offices not to exceed 220 sq.ft. each 0 b) 3 offices not to exceed 150 sq.ft. each 450 c) 25 offices not to exceed 120 sq.ft. each 3000 d) 13 offices not to exceed 150 sq.ft. each 1170 e) 3 offices or open clerical areas not to exceed 60 sq.ft. each (Computer area) 220 f) Internal circulation 1202 g) File area 466 h) Reception area sq.ft. 400 i) Conference Room 800 j) Storage Area 345 k) Copier machine area 250 l) Employee lounge 240 m) Mail room (inc'l) with k above) 0 n) Other requirements (Automation Equipment) 240 o) Urinalysis Lab Area 72 The critical item concerning space requirements is announced at A.1. on page 1 of the solicitation document. Therein the net square footage is estimated to be 8,855 feet plus 3 percent measured in accordance with the Standard Method of Space Measurement as identified in Attachment A. Both prospective lessors met the net square footage requirement. Both prospective lessors achieved substantial compliance with the more specific requirements set forth in B.1. as to approximate number and sizes of offices and other spaces. Petitioner did the better job in that sense as shown in the comparison of the spaces that are contemplated by the Petitioner's proposal contrasted with that of the Intervenor. That comparison is shown in Petitioner's Exhibit 2 admitted into evidence. It can also be seen in the comparison of the rough sketches of floor plans submitted by the prospective lessors. Joint Exhibit 2 describes the prospective floor plan for Petitioner and Joint Exhibit 3 describes the prospective floor plan for the Intervenor. The Intervenor's submission is a recapitulation of the spaces associated with its most recent tenant, the State Attorney for the Daytona Beach, Florida, Circuit. No special emphasis has been placed on having this floor plan approximate suggested design of Attachment H. Petitioner's attempt is one which more closely approximates Attachment H, at least as to specific spaces contemplated in B.1. to the solicitation document. At the preproposal conference of April 5, 1990, the prospective lessors were told that the support staff offices could be open space or be separated with half-wall partitions as opposed to being fully enclosed offices. The spaces that are offered by the Intervenor correspond to this opportunity. Both proposals responded adequately to all other criteria as well as the space requirement criterion. In examining the proposals by the competitors, Joint Exhibit 2 admitted into evidence for the Petitioner and Joint Exhibit 3 admitted into evidence for Intervenor, Respondent used the evaluation criteria set out in C. at page 7 of the Solicitation Document. Three people constituted the review committee. The evaluation by the committee members was through independent consideration of the proposals. Their aggregate scores were 252 points for Petitioner and 290 for the Intervenor of a possible 300 points. The scoring in the aggregate and through individual observations of the committee members may be found in Joint Exhibit 4 admitted into evidence, a composite. Over the period of the lease and the option period, Intervenor's proposal is much more economical. Therefore, under Criteria C.1. the scores that were given individually by the committee members and the aggregate scoring, which the committee members continue to urge in the course of the final hearing were reasonable. All other scores were reasonable in the aggregate and individually with the exception of the scores under C.2.; the scores for Petitioner under C.4. assigned by two committee members, which were three points low in the aggregate, and the scores assigned by two committee members for criterion C.11 which were four points low in the aggregate. Concerning the scores under C.2., having considered the testimony at hearing, scores assigned should be reversed. These adjustments would increase Petitioner's score to 267 and lower Intervenor's score to 282. Intervenor would still win with these adjustments. Petitioner timely filed its protest of the decision to award a contract to Intervenor. Intervenor timely filed its request to intervene in this action.
Recommendation In consideration of the facts found and conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which dismisses Petitioner's Formal Written Protest and finds that the Intervenor submitted the lowest and best proposal for provision of lease space under RFP 700:0561. DONE and ENTERED this 25th day of September, 1990, in Tallahassee, Florida. CHARMS C. ADAMS, 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 September, 1990. APPENDIX CASE NO. 90-3007BID The following discussion is given concerning the proposed facts set out in the proposed recommended orders of the parties: Petitioner' s Facts Paragraphs A-D are subordinate to facts found. Paragraph E.1 is contrary to facts found. Concerning Paragraph E.6., sufficient description has been given of the present configuration of space in relationship to net rentable square footage. Paragraph E.7 is contrary to facts found. Paragraph E.8 is contrary to facts found. The remaining sentences of Paragraph E. are subordinate to facts found. Paragraph F is contrary to facts found. Concerning Paragraph G, although the performance by the committee members was not entirely acceptable, their determinations have been modified. The adjustment did not change the outcome. Concerning Paragraph H, see remarks concerning Paragraph G. Respondent' s Facts Paragraph 1 is subordinate to facts found. Paragraph 2 is not necessary to the resolution of the dispute. Paragraphs 3 through 8 are subordinate to facts found. Paragraph 9 is not necessary to the resolution of the dispute. Paragraph 10 is accepted and no finding has been made to the effect that public restrooms must be placed in the lobby area. Paragraphs 11 through 17 are subordinate to facts found. Intervenor has joined in the proposed recommended order of Respondent. COPIES FURNISHED: Glenn D. Storch, Esquire STORCH & HANSEN, P.A. Suite 300 1620 South Clyde Morris Boulevard Daytona Beach, Florida 32119 Perri M. King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Lawrence W. Borns, Esquire 312 North Halifax Avenue Daytona Beach, Florida 32118 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
The Issue These proceedings arose as the result of a bid solicita- tion issued by Respondent, Division of Administrative Hearings (DOAH), whereby DOAH sought the lease of office space. DOAH disqualified two proposals submitted by Petitioner, Parkway- Oakland General Partnership (Parkway), and proposed to award the lease to Intervenor, American National Bank of Florida (American Bank). Parkway protested the disqualification of its proposals and the intended award. The Koger Company (Koger) also protested the intended award, but filed a voluntary dismissal prior to the final hearing in Case No. 88-3357BID. By separate order, this Hearing Officer has entered an order closing her file on Case No. 88-3357BID. The disputed issues are described as follows by the parties in their prehearing stipulation and at final hearing: 1. Whether Parkway bid an existing, dry and measurable building. 2. Whether American Bank bid an existing dry and measurable building. 3. Whether DOAH acted arbitrarily and capriciously by disqualifying Parkway's proposals and by evaluating American Bank's proposal. At final hearing, Parkway called Jack B. Tobin, Tony Benton, William M. Baldwin, and Al Rudolph as witnesses. Petitioner's Exhibits 1 through 3 were received into evidence. DOAH called Linda C. Spears, Mary V. Goodman, and Stephen F. Dean as witnesses. DOAH's Exhibits 1 through 2 were received into evidence and portions of the deposition of Marilyn Lawrence were read into the record. . American Bank called Donald L. Feather as a witness, The transcript of the hearing was filed on August ll, 1988, and the parties were to file Proposed recommended orders within ten days of the filing of the transcript. The parties’ Proposals have been addressed in the appendix to this recommended order.
Findings Of Fact Based on stipulations of the Parties, on the exhibits received in evidence and ‘on the testimony of the witnesses at the hearing, I make the following findings of fact: 1. DOAH issued a Request for Proposal (RFP) for over 2,000 square Feet of office space in Tallahassee, Florida. (Petitioner's Exhibits 1 and 2) ‘The RFP was prepared using the Department of General Services! (DGS) guidelines (TR 89) and DGS Porm BPM 4136, which is a solicitation format Prepared by DGS for use by all State agencies. (TR 123 and Rule 13M-1.015(3)(e)) 2. Parkway submitted three bid Proposals, two of which were disqualified by DOAH. American Bank submitted a proposal which was determined by the evaluation committee to be the lowest and best proposal. (Prehearing Stipulation) 3. One of the disqualified Proposals submitted by Parkway was known as the "Option Proposal." In this arrangement, DOAH was to continue occupying the space it was currently leasing until October, 1988 at which time, DOAH would move into Building "B" located at 2001 Old St. Augustine Road. (TR 18, 19, 86, and Pet. Exhibit 1) - 4. The other disqualified Proposal submitted by Parkway was known as the "Park Proposal." The Park Proposal was for 2001 Old St. Augustine Road, where two buildings called Building "a" and Building "B" were being constructed. Both buildings were identical in size, shape and total construction. (TR 28) ‘The Park Proposal submitted by Parkway contains two Photographs and four drawings. (Pet. Ex, 2) One of the Photographs depicts Building "A." (TR 34) Three of the four drawings relate to Building "B" and one of the drawings relates. to Building "A" and related site development. The Proposal never clearly identified a specific building at 2001 Old St. Augustine Road as being the building bid. However, during the evaluation committee's site visit at 2001 Old st, Augustine Road, a representative of the Parkway indicated Building "B" was the building proposed for lease by DOAH. (TR 98) 5. American Bank submitted a Proposal for the space located in a former bowling alley on Apalachee Parkway. This space is herein referred to as the old bowling alley. (TR 60) 6. Form BPM 4136, which is the bid solicitation document, contains the following requirement: The proposed space must be in an existing building. To be considered as existing, the space must be dry and capable of being physically measured to deter-— mine net rentable square footage at the time of bid Submittal. Renovations to bring the facility into compliance with all applicable Federal, State and local codes and regulations and/or to meet the desired arrangements are permitted, it (sic) carried out in accordance with prescribed Procedures. (Emphasis in original.) 7. DGS interprets the requirement of an existing building to mean that the building must be enclosed with flooring, a roof, and walls and that exterior doors and windows must be in Place or the building must be such that the exterior is enclosed so that it is dry in adverse weather. Additionally, the building must be capable of being measured by pulling a tape inside the building to determine the net rentable Square footage. (TR 116) The purpose of having the dry and measurable criteria is to distinguish between an existing building and one that is to be built or that is Partially complete. (TR 119) 8. On May 13, 1988, the date of the bid submittal, Building "B" was not an existing building. (Prehearing Stipulation) Building "A" had a roof, a Slab, and walls, which comprised 50 percent of the vertical Plane from the slab to the roof. The windows and exterior doors in Building "A" had not been installed on May 13, 1988, (TR 40-42, 96-97, 147) Building "a" had a four foot overhang but the testimony of Mr. Tobin that the Overhang prevented rain from entering the building is not credible, given the large amount of window space which was not enclosed. (TR 51) 9. On May 13, 1988, the old bowling alley had walls, a slab, and portions of the exterior walls were boarded over, possibly in the location of existing windows or window openings. (TR 63, 109, 133, 134) The roof did have a hole, which was approximately three feet in length and allowed water to leak into the building. (TR 118, 119) The interior of the old bowling alley was capable of being measured. (TR 67, 119) The old bowling alley is an existing building. (TR 118-119) 10. After the bid solicitation document was issued, representatives of the Parkway met with staff of DOAH, (TR 27, 91) A DOAH staff member advised Parkway representatives that Parkway could "bid the park," but it had to bid an existing building which was dry and measurable. (TR 46, 80, 93, 138, 139) ll. At the prebid conference, DOAH representatives advised a Prospective bidder, in the Presence of a Parkway representative, that in order for a building. to be considered for the contract, it must be existing and dry and measurable at the time the bids were submitted. (TR 94, 95) 12. At the time Parkway submitted its proposals, neither Building "A" nor Building "B" was an existing building as defined by the bid solicitation document. 13, At the time Parkway submitted its proposals, Parkway was negotiating with a Private company for the lease of Building "A" (TR 77,27) and Parkway entered into a lease for Building "A" with the Private company on dune 13, 1988. (TR 43, 45) Thus, even if Building "A" had -been an existing building at the time the bids were Submitted, it is not available for lease to DOAH. (TR 45)
Conclusions CASE NO. CASE NO. 88-3357BID 88-3358BID On September 1, 1988, the Hearing Officer who conducted a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, in the above-styled case submitted her Recommended Order to the undersigned and all parties of record. A copy of the Recommended Order is attached as Exhibit A. In ays accordance with Rule 28-5.404, all parties were allowed twenty days in which to. file..exceptions..to.. the. Recommended Order. °.To date, none of the parties have submitted exceptions. The Recommended Order came before me as agency head for final agency action.” Having considered the Recommended Order, the exhibits admitted into evidence at final hearing and the transcript of the final hearing conducted on August 1, 1988, it is ORDERED that.the Recommended Order, attached as Exhibit A, is adopted as the final order of the agency. Accordingly, the protest filed by Parkway-Oakland General Partnership in Case No. 88-3358BID is dismissed and Lease No. 510:0049 is awarded to American National Bank of Florida. DONE AND ORDERED this o%/~& day of September, 1988, in Tallahassee, Leon County, Florida. | Lh aap A ssi SHARYN SMITH Director 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 Qist day of September, 1988.
Recommendation SEE NVDATION Based on the foregoing, it recommended that the Division of Administrative Hearings enter a final order dismissing Case No. 88-3358BID ang awarding Lease No. 510:0049 to American National Bank of Florida. st : RECOMMENDED this /*~ day of September, 1988, in buce BK ghhad SUSAN B. KIRKLAND Hearing Officer Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 (904)487-1082 Tallahassee, Florida. Filed with the Clerk of the Department of General Services this /od day of September, 1988 Copies furnished to: Kim Cecile Rice Lobrano & Kincaid, P.A. Suite 810, 121 Forsyth Street Jacksonville, Florida 32202 William A. Bald, Esquire Dale & Bald 2900 Independent Square Jacksonville, Florida 32202 Robert D. Newell, Jr. Newell and Stahl, P.A. 817 North Gadsden Tallahassee, Florida 32303-6313 Mark Rubin, Esquire 777 Arthur Godfrey Road Suite 320 Miami Beach, Florida 33140 10 APPENDIX TO RECOMMENDED ORDER IN CASE NO. 68-3358B1D The following constitutes my specific rulings pursuant to section 120.59(2), Florida Statutes, on all of the Proposed findings of fact submitted by the parties in this case, ’ Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Parkway-Oakland General Partnership Proposed Finding of Fact No. 1 is incorporated in Finding of Fact Nos. 1 and 2. Proposed Finding of Fact No. 2 is incorporated in Finding of Fact Nos. 2, 3, and 4. Proposed Finding of Fact No. 3 is incorporated in Finding of Pact No. 8 and is covered in the Introduction and Issues, Proposed Finding of Fact Wo. 4 is subordinate and unnecessary to the facts as found. . Proposed Finding of Fact No. 5 is covered in the Introduction and Issues. The first sentence in Proposed Finding of Fact No. 6 is subordinate and unnecessary. The remainder of the proposed finding of fact is rejected as not supported by the record as a whole, as conclusionary, and as mere recital of testimony. . The first sentence in Proposed Finding of Fact No. 7 is incorporated in Finding of Fact No. 8. The remainder of the proposed finding of fact is subordinate and unnecessary to the facts as found. The portion of Proposed Finding of Fact No. 8 which indicates that windows were not installed at the time of the bid submittal and that the building had a four foot overhang is incorporated in Finding of Fact No. 8. The remainder of the proposed finding of fact is rejected as mere recitation of testimony, conclusionary, speculative and not supported by the record as a whole. The first two sentences of Proposed Finding of Fact No. 9 are cumulative in part and subordinate and unnecessary to the facts aB found. ll 10. ll. 12, 13. 14, 15. 16. 17. 18. 19. 20. 2i. 22. 23. 24. In Proposed Finding of Fact No. 10, the fact that the building proposed by American Bank had a hole in the roof is incorporated in Finding of Fact No. 9. The remainder of the Proposed finding of fact is subordinate and unnecessary to the facts as found. Proposed Finding of Fact No. 11 is cumulative. Proposed Finding of Fact No. 12 is incorporated in Finding of Fact No. 10. Proposed Finding of Fact No. 13 is rejected as not supported by the record as a whole. Proposed Finding of Fact No. 14 is rejected as not supported by the record as a whole. Proposed Finding of Fact No. 15 is subordinate and unnecessary as to the facts as found. The first paragraph in Proposed Finding of Fact No. 16 is mere recitation of testimony, subordinate, and unnecessary. The last paragraph is rejected as conclusionary and not supported by the record as a whole. Proposed Finding of Fact No. 17 is rejected as conclusionary and not supported by the record as a whole. Ms. Goodman's testimony did not contradict the testimony of Ms. Spears. Proposed Finding of Fact No. 18 is subordinate and unnecessary to the facts as found. . Proposed Finding of Fact No. 19 is subordinate and unnecessary to the facts as found. Proposed Finding of Fact No. 20 is subordinate and unnecessary to the facts as found. Proposed Finding of Fact No. 21 is mere recitation of testimony, subordinate, and unnecessary to the facts as found. Proposed Finding of Fact No. 22 is subordinate and unnecessary to the facts as found. . Proposed Finding of Fact No. 23 is subordinate and unneccessary to the facts as found. Proposed Finding of Fact No. 24 is cumulative and mere recitation of testimony. To the extent that the testimony indicates that Building "A" was not an existing building that is incorporated in Finding of Fact No. 12. 12 25. 10. Ti. 12. 13. Proposed Finding of Fact No. 25 is subordinate and unneccessay to the facts as found. Specific Rulings on Joint Proposed Findings of Fact Submitted By DOAH and American Bank Proposed Finding of Pact No. 1 is incorporated in Finding of Fact No. l. Proposed Finding of Fact No. 2 is incorporated in Finding of Fact No. 6. Proposed Finding of Fact No. 3 is incorporated in Finding of Pact Nos. 2, 3, and 4. To the extent not subordinate and unnecessary, Proposed Finding of Pact No. 4 is incorporated in Finding of Fact - Nos. 4 and 8. Proposed Finding of Fact No. 5 is incorporated in Finding of Fact No. 8. . Proposed Finding of Fact No. 6 is subordinate and unnecessary. To the extent not subordinate and unnecessary, Proposed Finding of Fact No. 7 is incorporated in Finding of Fact No. Proposed Finding of Fact No. 8 is subordinate and unnecessary. To the extent not subordinate and unnecessary, Proposed Finding of Fact No. 9 ig incorporated in Finding of Fact No. To the extent not subordinate and unnecessary, Proposed Finding of Fact No. 10 is incorporated in Finding of Fact No. 13. Proposed Finding of Fact Nos. 11, 12, and 13 are subordinate and unnecessary. . To the extent not subordinate and unnecessary, Proposed Finding of Fact No. 14 is incorporated in Finding of Fact No. 4. : Proposed Finding of Fact No. 15 is subordinate and unnecessary to the facts as found. 13 Proposed Finding of Pact No. unnecessary. Proposed Finding of Fact No. unnecessary. Proposed Finding of Fact No. in Finding of Fact No. 7 Proposed Finding of Fact No. in Finding of Fact No. 9. Proposed Finding of Fact No. in Finding of Fact No. 9 To the extent not subordinat Finding of Fact No. Proposed Finding of Fact No. unnecessary. Proposed Finding of Fact No. in Finding of Fact No. 10, Proposed Finding of Fact No. in Finding of Fact No. 10. Proposed Finding of Fact No. of Fact Nos. 10 and 1l. 16 17 18 19 20 is is is is is subordinate and subordinate and modified and incorporated modified and incorporated modified and incorporated e and unnecessary, Proposed 21 is incorporated in Finding of Fact 22 is subordinate and 23 is is is modified and incorporated modified and incorporated incorporated in Finding oye STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS THE KOGER COMPANY, Petitioner, “Vs. DIVISION OF ADMINISTRATIVE HEARINGS, Respondent, and AMERICAN NATIONAL BANK OF FLORIDA, Intervenor. PARKWAY-—OAKLAND GENERAL PARTNERSHIP, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, Respondent, and AMERICAN NATIONAL” BANK OF ~ FLORIDA, Intervenor. ew
Other Judicial Opinions A...PARTY .WHO..IS.. ADVERSELY AFFECTED. BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF. ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO REVIEWED. Copies furnished: Kim Cecile Rice, Esquire LOBRANO & KINCAID, P.A. Suite 810, 121 Forsyth Street Jacksonville, Florida 32202 William A. Bald, Esquire DALE & BALD 2900 Independent Square Jacksonville, Florida 32202 Robert D. Newell, dr., Esquire NEWELL AND STAHL, P.A. 817 North Gadsden Street __ Se Tallahassee, Florida 32303-6313 Mark Rubin, Esquire 777 Arthur Godfrey Road Suite 320 Miami Beach, Florida 33140 Susan B. Kirkland, Esquire Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. The parties stipulated that Respondent, Donald Euske, is a registered general contractor and is the holder of license No. RG0012553, which license is current and active. On January 24, 1979, Respondent entered into a contract with Messr. Ekstrom for the construction of a "strip" shopping center (Center) for a price of $99,800.00. In this regard, evidence reveals that the parties entered no less than three (3) construction agreements for the subject Center. According to the terms of the Administrative Complaint filed herein, Respondent abandoned the above referred project on May 15, 1979, when it was approximately 70 percent complete after having received $81,000.00 or approximately 81 percent of the contracted price. Construction on the Ekstrom Center progressed at a normal rate and Respondent timely obtained all the necessary permits from the Broward County Building and Zoning Enforcement Section to commence construction. (Petitioner's Composite Exhibit No. 1 and testimony of witnesses Reffrett and Marchitello) Respondent and Messr. Ekstrom had had one other prior contractual relationship for the construction of a commercial building. That building was completed without incident. As stated, Respondent and Messr. Ekstrom entered at least three (3) agreements for the construction of the subject Center which is situated at 3671- 3687 Davie Boulevard, Fort Lauderdale, Florida. One agreement was entered into primarily for the purpose of obtaining construction and permanent financing; another agreement was entered for what was considered a "turn-key building" and another was entered into for construction of a "shell" without walls and air conditioning. Based on Messr. Ekstrom's prior relationship with Respondent, an acceptable draw schedule was entered and Messr. Ekstrom executed pre-signed draw releases for the construction monies. Additionally, the agreement was modified by the owner in several particulars including a substitution for tempered glass as opposed to plate glass since it would not comply with Code requirements. The substitution resulted in an upward price adjustment of approximately $900.00 and the parties disagreed as to who should bear the responsibility of that adjustment. Another item that surfaced as a dispute between the parties was a cost item of approximately $3,000.00 to $3,500.00 for fill dirt. The cost for fill was not specifically mentioned in either of the parties' construction agreements. Messr. Ekstrom refused to authorize payment for the fill, contending that it was an item which was necessarily included in the contracted price whereas Respondent contends that the cost of fill was purposely omitted from the agreement due to the varying soil conditions and varying costs dependent upon the degree of compaction required to bring the building site into Code compliance. Respondent left the construction site during May of 1979, after the Center was, according to the owner's estimate, approximately 70 percent complete. At that stage, Respondent had erected all exterior walls; completed the roof; roughed the electrical and plumbing systems; erected partition studs and all entrance and exit doors, including windows, were hung. After learning of his financial difficulties, Respondent approached his accountant who was commissioned to complete a cost analysis such that Respondent could review his expenses, compute his costs and attempt to complete the project and receive a reasonable margin of profit based on what was required to complete the Center. When the cost analysis was completed, Respondent, in fact, approached owner Ekstrom who refused to go along with the payment of any additional monies over and above that set forth in the contract which called for an agreed price of $99,800.00. When Respondent left the project, the owner was able to subcontract the work remaining for completion of the building using most of the mechanics previously retained by Respondent. Using the figures tendered by the owner, approximately $18,000.00 was needed to complete the Center when Respondent left. At that time, there remained in the construction draw account, approximately $19,800 for completion of the building. Thus, there existed in the construction draw account, more than sufficient funds to complete the project. The McGinnis Project On July 14, 1978, the Respondent entered into a contract with John McGinnis to construct a residence for a price of approximately $140,000.00. Messr. McGinnis was familiar with Respondent's reputation and workmanship and thus secured his services as a general contractor to build his residence. Numerous changes were made in the design of Messr. McGinnis' residence which delayed construction and increased Respondent's costs. Some of the changes included modifications to room dimensions, substitution of the exterior walls with cedar siding etc. When the McGinnis project was approximately 94 percent complete, Respondent again found himself in financial trouble and commissioned his accountant to prepare a cost analysis for the McGinnis residence. Based on that analysis, Respondent requested a profit of approximately $25,000 from Messr. McGinnis to complete the project. Messr. McGinnis refused and Respondent advised him that he felt he was entitled to a reasonable profit and could not complete the residence with the remaining funds available in the draw account. Messr. McGinnis utilized the services of the materialmen and subcontractors that were retained by Respondent to complete his residence. Owner McGinnis requested and obtained without difficulty a certificate of occupancy for his residence. The Respondent's Defense Respondent has been licensed by Petitioner since approximately 1972. Respondent, as a licensed contractor, has not been the subject of any prior charges or complaints by Petitioner. During October of 1978, through July of 1979, the subject projects were the only undertakings Respondent had contracted to complete. In bidding on both projects, Respondent projected that the time needed to complete both would be approximately 90 days. In excess of 150 days was needed to complete the projects, part of which was occasioned by changes and unforeseen construction developments which brought about delays in completing the projects. During this period, in addition to himself, Respondent's only other employee was a secretary. In preparing the bid for the two projects, Respondent factored into his bid a weekly salary of $500.00 per week. Respondent encountered a delay in the Ekstrom project at the outset when he was unable to persuade the owner to prepare the site for construction. When Respondent was unable to persuade the owner to defray the cost for preparing the site for construction, Respondent advanced the approximately $3,000.00 in costs associated therewith. Another problem Respondent encountered on the Ekstrom project centered around the placement of interior walls. This problem arose as a result of the owner's uncertainty as to whether or not he wanted to build what is referred to as "double' or "single" spaces which, of course, impacted on the number of interior walls that had to be built in the structure. This resulted in a cost increase of approximately $3,000.00 over and above the amount envisioned by Respondent when the contract was bid upon. Another problem Respondent encountered at the Ekstrom Center involved the removal of a sign by an adjacent land owner before the roof could be installed at the Center. The owner refused to have the sign removed and Respondent relented resulting in another unforeseen cost of approximately $500.00 over and above that envisioned when the contract was bid. Respondent approached both owners Ekstrom and McGinnis who refused to compromise when he presented the cost analyses prepared by his accountant. Respondent admitted that he bid on both projects without allowing for sufficient flexibility to offset cost overruns occasioned by unforeseen developments and/or inflationary trends. However, Respondent credibly testified that he used all of the draw proceeds from those projects exclusively on such projects and diverted no monies therefrom. As a matter of fact, evidence reveals that Respondent placed a second mortgage on his residence and used the mortgage money which was obtained from former Mayor and City Councilman of Hollandale, Edgar H. Galvin, who appeared and testified at this hearing. Messr. Galvin has known Respondent since approximately 1975, and has utilized his services as a contractor to build a "Taco Beaver" Restaurant in the Broward County area. Messr. Galvin has also retained Respondent to do sundry repairs for a country club and at several other small projects that he owned. Messr. Galvin is familiar with the construction business and has built numerous homes, restaurants, hotels, etc., in the Broward County area. Messr. Galvin credibly opined that fill dirt may well be an extra based on soil conditions, if not expressly mentioned in the construction bid and resulting agreements. Construction costs during the period in question in 1978, were approximately $35.00 per square foot. Using the $35.00 per square foot construction cost for these projects, both projects were under-bid by Respondent. Reverend Luther Anderson, the pastor of the First Lutheran Church in Fort Lauderdale, has known the Respondent for approximately ten (10) years. Respondent enjoys a good reputation for truth and veracity in the community and has completed several construction projects for the church and Rev. Anderson, without any problems respecting the quality of the work or the amount charged for his services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be dismissed in its entirety. RECOMMENDED this 2nd day of February, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of February, 1981.
Findings Of Fact In April of 1977, Respondent contracted to purchase approximately four and one-half acres of land in Pinellas County, Florida on which it sought to develop a 120-bed nursing home. In May, 1977, Respondent filed an application for a Certificate of Need pursuant to the provisions of Section 381.494, Florida Statutes. The certificate was issued on August 8, 1977 by Petitioner to Respondent for the proposed 120-bed nursing home. The certificate provided on its face that it would terminate on August 8, 1978, " . . . with renewal possible only if applicant clearly demonstrates positive construction efforts." In addition, a cover letter forwarded to Respondent by Petitioner with the certificate indicated that the termination date " . . . is extendable provided you can demonstrate as of that date, positive action toward project accomplishment." Prior to receiving the certificate, Respondent retained an architect to prepare plans and specifications for the nursing home, and had made preliminary efforts to obtain financing for the construction of the facility. After issuance of the certificate, Respondent and his architect met with Petitioner's architect to submit schematic drawings for review. Respondent's schematic drawings were approved by Petitioner on August 31, 1977. When Respondent's initial efforts to obtain financing failed, further financing was sought unsuccessfully in Indiana and in Pinellas County, Florida. Respondent's efforts to obtain financing on its own continued to be unsuccessful. As a result, Respondent retained a mortgage broker to attempt to locate an institution to advance the money to construct the project. Public financing through the sale of municipal bonds was attempted, but failed when the City Commission of Safety Harbor, Florida voted against the bond proposal. Subsequently, in June of 1978, after some nine months of continuous attempts to locate an institution to finance construction of the facility, Respondent secured a loan commitment for the project at a cost to Respondent of $13,000. After obtaining the loan commitment, Respondent contacted its architect and requested that he proceed with preparation of plans and specifications for the preliminary and final stages of the project. The architect had ceased his efforts in this direction on Respondent's instructions after approval of the schematic drawings in August of 1977, because it was felt that further efforts in this regard would be imprudent in the absence of a commitment for financing construction of the project. When Respondent's architect attempted to contact the architect for Petitioner to set up a meeting on June 24, 1978, he discovered that Petitioner's architect would not be available for consultation until the following month. When a meeting was finally arranged for July 24, 1978, Petitioner's architect insisted on certain time-consuming changes in the schematic drawings. However, Respondent's architect indicated that had Petitioner's architect advised him on July 24, 1978 that the final plans were required to be filed by August 8, 1978, he could have accomplished the preparation of those plans and specifications by that date. In any event, the changes in the plans and specifications required by Petitioner's architect as a result of the July, 1978 meeting were completed and submitted to Petitioner on the day prior to hearing in this cause, well after the certificate expired on August 8, 1978. These plans contain much of the data customarily found in final construction plans, but Petitioner obviously had not had sufficient time to conduct an in-depth review of those plans prior to the hearing. In any event, Respondent's architect indicated that final construction plans could be completed in no more than two weeks, and that actual construction could begin within two to three days from Petitioner's approval of final construction plans. By letter dated August 4, 1978, Petitioner advised Respondent that its certificate would expire on August 8, 1978 and that a six-month extension might be granted if requested, and if the following four criteria had been met: "1. If applicable, has a site been firmly secured? Has firm financing been secured? Have final construction plans and speci- fications for the project been submitted for review by the Bureau of Health Facilities? Can it reasonably be expected that the project can be under construction within the requested additional time?" Respondent, through its President, testified that it had never been advised by Petitioner that all four of these criteria would have to be met in order to obtain a six-month extension of the certificate. In fact, Respondent apparently relied on the wording in the certificate itself that an extension would be possible " . . . only if applicant clearly demonstrates positive construction efforts . . .", and the language of the covering letter from the Administrator of the Office of Community Medical Facilities which indicated that the expiration date of the certificate would be extendable upon a showing of " . . . positive action toward project accomplishment." By letter dated August 4, 1978, to the Director of the Office of Community Medical Facilities, Respondent requested an extension of its certificate. As grounds for this extension, Respondent advised Petitioner that its earlier unsuccessful attempts to obtain financing had caused inordinate delay in preparing to begin construction of the facility. In fact, in Petitioner's six-month review of the status of Respondent's certificate, Respondent informed Petitioner on March 20, 1978, that it had been unable to procure permanent financing. Subsequently, on June 6, 1978, Respondent informed Petitioner that it had obtained the necessary financing, and furnished a copy of the commitment letter from the Community Bank of Seminole, Florida, to Petitioner. As further justification for an extension of its certificate, Respondent advised Petitioner that as a result of a change in criteria by the City of Clearwater, Florida, an impact study which it was required to submit to the city had to be revised, thereby causing a delay in rezoning the property which it had acquired for construction of the facility a Respondent further advised Petitioner in its August 4, 1978 letter that its working drawings for the facility were fifty percent complete, and that it expected to begin construction by November 1, 1978. Petitioner contends that Respondent's certificate should be revoked, and that the requested extension should not be granted because Respondent has not firmly secured a site for the facility; has not secured firm financing; has not submitted final construction plans and specifications for review; and that, as a result, it cannot reasonably be expected that the project can be under construction within the requested additional time. Respondent's contract to purchase the land on which the facility is to be constructed contains a provision that the purchase of the property must be concluded on or before October 15, 1977. This provision of the contract was not performed by October 15, 1977. However, testimony established that Respondent and the sellers of the property have continued through the present time a joint effort to obtain rezoning of the land to allow construction of the facility. Consequently, the parties have apparently, as between themselves, agreed not to consider the October 15, 1977, closing date binding. The land purchase contract also contains a contingency which would relieve Respondent from its obligation to purchase the property should it be unable to obtain a rezoning of the parcel to an RM-28 zoning classification. Although evidence introduced at the hearing indicates that the local government might not be agreeable to rezoning the property to RM-28, there is nothing in the record to indicate that the facility might not be constructed on the property should it be rezoned to a different classification. Further, the contingency in the contract for rezoning to RM-28 was obviously intended for the benefit of Respondent, and Respondent would, therefore, be free to waive that requirement should the facility be allowed to be constructed on the property in a different zoning classification. Although final construction plans have admittedly not been filed with Petitioner for review, the evidence is uncontradicted that this failure was due to a combination of the Respondent's inability to obtain financing, and Petitioner's architect's unavailability to consult with Respondent's architect following issuance of the loan commitment. In addition, evidence of record is also uncontradicted to the effect that final construction plans could be submitted within two weeks after granting of an extension of the certificate, and that construction on the project could commence within two to three days after approval of the final plans and specifications. Respondent's mortgage loan commitment contains requirements that necessary rezoning of the property be obtained by September 1, 1978, and that the commitment in its entirety expires on September 15, 1978. However, Respondent's Predisent testified that he had obtained a 60-day extension of this commitment. In any event it appears that the loan commitment was in existence and effective as of the date of the expiration of the certificate and the date on which Petitioner issued its Administrative Complaint.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Health and Rehabilitative Services, denying the relief sought in the Administrative Complaint against Respondent, Shive Nursing Centers of Florida, Inc., and that Respondent's certificate be extended by the Department for a period of 6 months from the date of final agency action in this cause. RECOMMENDED this 14th day of December, 1978, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Steven W. Huss, Esquire Building 1, Room 310 1323 Winewood Boulevard Tallahassee, Florida 32301 John T. Blakeley, Esquire 911 Chestnut Street Post Office Box 1368 Clearwater, Florida 33517
