Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: In order for Petitioner to obtain a license as a general contractor in Florida, he is required to successfully complete a certification examination. The exam is administered by the Department of Professional Regulation. The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge. In June of 1989, Petitioner took the exam and received a passing grade on all parts of the exam except Part II for which he received a grade of 67. A score of 69.1 was necessary for Petitioner to receive a passing grade on Part II. Each of the challenged questions are worth 2.5 points. Therefore, if Petitioner is given credit for either of the questions, he will achieve a passing score. The first question challenged by Petitioner, question 13, required the exam taker to determine the labor cost for erecting concrete forms given certain assumptions. The diagram provided in connection with the question indicated there was an elevator shaft which included two elevators and, therefore, two elevator door openings. In calculating the correct answer, an applicant was required to deduct the surface area corresponding to both door openings. In calculating his answer, the Petitioner only deducted for the area corresponding to one elevator door. Petitioner contends that the question is ambigious because it does not specifically direct the exam taker to deduct for both elevator doors. However, the question specifically states to "deduct for door openings". There is no ambiguity in the question and the Petitioner's answer was incorrect. The only right answer to the question was the answer deemed correct by the Respondent in grading the exam. While Petitioner also challenged question 32, the only testimony presented at the hearing indicated that the answer used by Respondent in grading the exam was correct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner's request that his June, 1989 examination for a general contractor's license be regraded be DENIED. RECOMMENDED this 21st day of February, 1990, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6139 The Respondent submitted a Proposed Recommended Order including proposed findings of fact and conclusions of law. The Petitioner submitted a letter which contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered thoughout. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Prosposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. The Petitioner's letter sets forth his arguement as to why the question was ambigious and not properly structured. Petitioner's arguements are rejected and subordinate to Findings of Fact 4 and 5. The Respondent's Proposed Findings of Fact Prosposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 2. Included in the preliminary statement. Included in the preliminary statement. Included in the preliminary statement. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5 and 6. Included in the preliminary statement and adopted in substance in Findings of Fact 6. COPIES FURNISHED: E. Harper Field, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Eli Buzaglo 6569 Racquet Club Drive Lauderhill, Florida 33319 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent violated Section 471.033(1)(g), Florida Statutes, by displaying negligence in the practice of engineering, and violated Section 471.033(1)(j), Florida Statutes, by sealing a drawing which was not prepared by him or under his responsible supervision, direction, or control. The Respondent denies that there has been any violation.
Findings Of Fact At all times material hereto, the Respondent, Monrad R. Thue, has been a licensed engineer in the State of Florida, having been issued license number PE 0032071. The Respondent's address is 8520 S.W. 53rd Court, Miami, Florida 33143. In January of 1987, the Respondent signed and sealed plans for the steel elevator support of the "Sander's residence" located on Key Biscayne, Florida. At the time of signing and sealing the plans, the Respondent also placed the following limiting notation over the seal: "For steel elevator supports only." The Respondent did not meet with the draftsman, David Del Sol, either prior to or during the draftsman's preparation of the plans. Daniel Del Sol, who is David Del Sol's brother, took the subject plans to the Respondent because the building department required that the elevator support portion of the plans be sealed by a licensed engineer before it could be approved. The Respondent carefully reviewed the plans drawn by David Del Sol and retained the plans for a couple of days During the next two days the Respondent did the necessary calculations and made some minor drafting changes on the support system sections of the plans. He than signed and sealed the plans and returned them to David Del Sol. These actions by the Respondent constitute responsible supervision, direction, or control. 1/ The steel elevator support portion of the plans suffers from a lack of coordination in several details and could have been drawn somewhat clearer. The lack of coordination and clarity in the subject plans does not, however, constitute negligence in the practice of engineering. 2/
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Professional Engineers issue a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 25th day of March, 1991. MICHAEL M. PARRISH, 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 March, 1991.
The Issue Whether a civil fine should be imposed against Respondent for alleged violation of Section 399.06(2), F.S., as set forth in the Notice to Show Cause, dated February 16, 1978. The Respondent was furnished Notice of Hearing by the Hearing Officer on September 6, 1978, with date of hearing scheduled for November 13, 1978. Upon Petitioner's Motion for Continuance, the hearing was continued until November 22, 1978. Upon a further request for continuance based on injuries received by Respondent, the hearing was again continued until December 5, 1978, and the order continuing the hearing, dated November 17, 1978, was furnished to the Respondent. By his letter of November 29, 1978, Respondent acknowledged receipt of the said order. Neither Respondent nor any representative on his behalf appeared at the hearing and, accordingly, pursuant to Rule 28-5.25(5), the hearing was conducted as an uncontested proceeding.
Findings Of Fact In the early part of 1977, Samuel Eldon, owner and operator of the All State Elevator Company, Miami, Florida, contracted with Respondent Yanks Construction Company to furnish and install two elevators at an apartment building under construction at 677 NE 24th Street, Miami, Florida. Eldon obtained a city permit to install the two elevators and began work on the job about March, 1977. By July, 1977, installation of the elevators was essentially complete. (Testimony of Eldon) On July 25, 1977, Eugene S. Walters, elevator inspector for the City of Miami, went to the construction site to inspect the elevators for safety, possible fire hazards, and condition of the equipment. This inspection was for the purpose of determining if a construction permit for a period of thirty days should be granted in order to make the elevators available for use of contractor personnel. Walters found a number of deficiencies in the installation and other deficiencies which required correction on the part of Respondent. Since the elevators were not in a satisfactory condition for use, Walters gave the deficiency "punch list" to Respondent and Eldon for corrective action. Additionally, Eldon disconnected some wires to prevent operation of the elevators. On this date Eldon observed that the elevators were being operated by unknown individuals. At this time, Respondent agreed to perform the necessary work in order that the elevators would pass inspection. (Testimony of Walters, Eldon) On September 5, 1977, Eldon asked for a reinspection. When Walters arrived at the building, he observed that the elevators were in use by construction personnel. He noted that the deficiencies had not been remedied and therefore shut off the elevator switches to prevent them from operating. On October 11, he again went to the site, accompanied by state elevator inspector Ray L. Cline. They posted warning notices in both elevator cars, pulled the main line switch and sealed the elevators with a state seal. On October 17, the inspectors found that the seals had been broken and observed the elevators being operated by tenants of the building. The deficiencies still had not been corrected by Respondent. On November 11, 1977, Respondent was again told of the remaining work necessary to place the elevators in an operable state. (Testimony of Walters, Cline) By letter of January 6, 1978, the Miami Building and Zoning Inspection Department informed Respondent again of the unfinished items and pointed out that one of the elevators had been seen in use by various individuals. Respondent advised by letter of January 11 to the building department that one of the elevators had been inspected and approved for construction use and would be operated only by authorized personnel, and that the other elevator would be locked out of service when the job was not in progress at the end of each workday. Finally, certificates were issued on February 6, 1975, for full use of the elevators after passing the required inspection. (Testimony of Walters, Exhibits 1-2)
Recommendation That this administrative proceeding against Respondent be dismissed. DONE and ENTERED this 2nd day of January, 1979, in Tallahassee, Florida. Hearings THOMAS C. OLDHAM Hearing Officer Division of Administrative 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mary Jo Gallay Staff Attorney Department of Business Regulation 725 South Bronough Street Johns Building Tallahassee, Florida 32304 Yanks Construction Company 1835 NW 20th Street Miami, Florida 33142 ===========================================================
The Issue The issue in the case is whether the Manatee County School Board’s proposed contract award to General Elevator Company for maintenance of elevator and wheelchair lifts meets the requirements of law.
Findings Of Fact In early July 1998, the Manatee County School Board issued a Request for Quotation (RFQ) No. 3400, seeking to contract for provision of elevator and wheelchair lift maintenance services. The vendor’s proposals were due by July 9, 1998. The RFQ sets forth a number of "technical specifications" intended to meet various concerns of the School Board. The School Board was concerned with the response time for emergency service repairs. Technical specification no. 6 states that a "[v]endor must have a physical office located in Manatee County with adequate storage for replacement parts inventory." Technical specification no. 7 in relevant part states that a "[v]endor shall respond to reports from the School Board for unscheduled service for repairs or corrections within four (4) hours and emergency reports within one (1) hour of the initiation of such notice." Two vendors submitted proposals in response to the School Board's request: General Elevator Company (General) and Miami Elevator Company (Miami). General's proposal listed a Clearwater, Florida office address. Clearwater is in Pinellas County. Miami Elevator Company's proposal listed a Bradenton, Florida office address. Bradenton is in Manatee County. General's bid was $14,040. Miami's bid was $15,750. After the bids were opened, Miami complained to Sheryl Rhodes (an employee of the School Board's purchasing department) that General's Clearwater office did not meet the RFQ's specification. Ms. Rhodes discussed the issue with Art Johns, a general sales engineer. In response to the discussion, Mr. Johns submitted a letter on behalf of General dated July 20, 1998, to Ms. Rhodes. The letter states that the address of the "Bradenton Shop" is "2300 Whitfield Park Drive, Unit H14, Bradenton, Florida." The address identified in the July 20 letter is not an office. The location is a garage-sized rental space located in a mini-warehouse storage facility. There is no phone service or mail delivery to the facility. There are no General employees working in the location on a regular basis. There is no local phone number to General. The Bradenton phone directory lists a toll-free number in the "yellow pages." A telephone call to General is routed to the Clearwater office and relayed to technicians working from their vehicles. Parts used to repair and maintain elevators are stored at the warehouse address. When the issue of office location was raised, an employee of the School Board attempted an unscientific survey to ascertain the response level General could provide. She called the General toll-free number and advised that she would be at the warehouse in 30 minutes. When she arrived, two technicians were present to meet her. The technicians opened the warehouse and permitted her inside. She observed a desk, a chair, and assorted parts and equipment apparently used to maintain elevators and lifts. There is no evidence as to the review of the proposals by the evaluation committee. Apparently the committee determined that the General bid met the requirements, and a proposed award was announced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Manatee County School Board award the contract pursuant to Request for Quotation No. 3400 to Miami Elevator Company. DONE AND ENTERED this 23rd day of November, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1998. COPIES FURNISHED: S. Gene Denisar Superintendent of Schools School Board of Manatee County Post Office Box 9069 Bradenton, Florida 34206-9069 Mark Campagnano District Sales Manager Miami Elevator Company 7481 Northwest 66th Street Miami, Florida 33166 Sandra Stevens Purchasing Supervisor Manatee County School Board Post Office Box 9069 Bradenton, Florida 34206-9069 Art Johns Sales Engineer General Elevator Company 12739 59th Way North Clearwater, Florida 34620
The Issue The issue is whether Petitioner is entitled to credit for the answer given in the General Contractor Examination, Contract Administration, Question No. 3, thus improving his grade and allowing him to pass the examination.
Findings Of Fact Petitioner, a candidate to be licensed as a general contractor in Florida, took the General Contracting Examination on June 29 and 30, 1993. The examination instrument was prepared by the National Assessment Institute through an agreement with Respondent to prepare and deliver the examination to determine minimal competence of candidates as a perquisite to licensure in the field of general contracting in Florida. The examination that was given was constituted of two parts. Part I was Contract Administration. Part II was Project Management. To be a successful candidate one must have scored a minimum grade of 70 on each part. Petitioner received a score of 67 in the Contract Administration part of the examination. Petitioner has challenged the score received on Question No. 3 within that part. If his challenge is successful he will have passed that part and the overall examination. Respondent's Exhibit No. 1 contains the examination question, possible answers, correct answer and solution to the problem. To assist Petitioner and other candidates in preparing for the examination Respondent provided a candidate information booklet. The candidate information booklet explained the subject matter about which the candidates would be examined, the purpose of examination and the method of grading the examination. In addition Petitioner and other candidates were provided a general building and residential building reference list to assist in answering the questions in the examination instrument. Finally, the candidates were reminded that some questions were based upon field experience and knowledge of trade practices within the construction business. Having in mind the preparatory information, Petitioner believes the correct answer to Question No. 3 is (D), whereas the answer called for in the examination instrument is (C). Petitioner places emphasis on the belief that field experience and knowledge of trade practices would have caused the candidate to conclude that (D) was the proper answer. Moreover, Petitioner has placed emphasis on the means the Respondent employs to ascertain the propriety of the examination challenge. Those factors are in turn: Was the item clearly and unambiguously worded? Was enough information presented to allow you to select the correct response? Did approved reference materials support the correct response? Were all current techniques taken into account when the correct response was determined? Did responding correctly to the item require knowledge which was beyond the scope of knowledge that should be expected of the candidate for licensure? With this information as the background Petitioner has also included his drawings within Petitioner's Composite Exhibit No. 1, which Petitioner describes as "what went on in Petitioner's mind after reviewing said examination question", considered in the context of associated examination drawings and specifications provided to assist in the solution and as found in Respondent's Exhibit No. 2. The examination question at issue referred the candidate to the drawings and specifications found in Respondent's Exhibit No. 2. The candidate was then directed to prepare formwork to substitute concrete for concrete masonry in elevator shaft walls depicted in the drawings and specifications. The candidate was told the labor cost per square foot for erecting forms for the "concrete contact surface area". The candidate was reminded of the dimensions of the formed openings for the elevator door. The candidate was told to assume that the form work abutted boxed columns located at the intersections of certain grid lines and to deduct measurements for door openings and to include forms for door jams and headers. With these assumptions in mind the candidate was provided four possible answers as the labor costs to erect the forms for the elevator shaft wall between the finished second and third floor elevations. To arrive at the solution the candidate need only perform mathematical calculations consistent with the instructions. The correct answer is depicted in the solution to Question No. 3 found in Respondent's Exhibit 1. By performing the proper calculation, the correct answer is (C). The question was unambiguous and the solution obvious. Nothing in the question or the pre-examination explanations made from Respondent to Petitioner called for reference to the fire code in arriving at the answer to Question No. Therefore, it was inappropriate for Petitioner to try and calculate the answer by attempting to ascertain the appropriate material for boxing the column associated with the elevator shaft taking into account fire code requirements. Petitioner assumed the necessity to utilize fire retardant materials to encase the boxed column located at the intersection of grid lines D and 3 as the column abutted the formwork that was described in the problem. Placement of fire retardant material around the column was not necessary and contributed to Petitioner's miscalculation of the answer to the question. Moreover, in Petitioner's calculation, contrary to the instructions which said to assume that the form work abutted the boxed column at the intersection of grid lines D and 3, Petitioner made his calculations along the centerline and not as these surfaces abutted. This meant that the lineal footage determination should have been 35 and not 36 as calculated by the Petitioner. Petitioner also calculated by using two headers and two jams pertaining to the doorway on the second floor to the elevator. Only one header was required in that the bottom of the doorway was not an area where concrete was being poured which would require a form to hold the concrete in place while it was being poured. This caused the Petitioner's measurement to be 23 feet instead of the anticipated 19 foot measurement. In summary, it is the attempt to try and develop an answer which takes into account the fire code in boxing the column and the other errors in calculation specifically referred to here that led the Petitioner to obtain the incorrect answer.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which dismisses the Petitioner's challenge to the examination results and upholds the determination that Petitioner did not pass the General Contractor's Licensing Examination given on June 29 and 30, 1993. DONE and ENTERED this 24th day of March, 1994, 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 24th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6616 The following discussion is given concerning the proposed findings of fact: Petitioner's Facts: Paragraphs 1 through 9 are subordinate to facts found. Paragraphs 10 through 57 are rejected as they attempt to justify the Petitioner's choice of answers to Question No. 3 in the examination instrument. Respondent's Facts: Paragraphs 1 through 5 are subordinate to facts found. Paragraph 6 constitutes legal argument. Paragraphs 7 and 8 are subordinate to facts found. COPIES FURNISHED: Thomas A. Centola, Jr. 532 Ponte Vedra Boulevard Ponte Vedra Beach, Florida 32082 Vytas J. Urba, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Hickok, Executive Director Construction Industry Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent's statements regarding enforcement of the Florida Elevator Safety Code, as set forth in the Amended Petition Challenging Agency Statement Defined as a Rule filed November 21, 2008, constitute agency statements defined as rules that must be promulgated pursuant to Section 120.54(1), Florida Statutes (2008).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, including the stipulated facts contained in the Pre-Hearing Stipulation, the following findings of fact are made: The Department is the state agency "empowered to carry out all of the provisions of this chapter relating to the inspection and regulation of elevators and to enforce the provisions of the Florida Building Code." § 399.02(6), Fla. Stat. The Department is given rulemaking authority to carry out the provisions of Chapter 399, Florida Statutes. § 399.10, Fla. Stat. The City is an incorporated municipality of the State of Florida. As a property owner, it is subject to the provisions of Chapter 399, Florida Statutes, and to the rules adopted by the Department to carry out its responsibilities under Chapter 399, Florida Statutes. Pursuant to Section 399.061, Florida Statutes, "[a]ll elevators . . . subject to this chapter must be annually inspected," and the Department has the authority to require correction of any violations of Chapter 399, Florida Statutes, or of the Florida Building Code discovered in those inspections. § 399.061(1)(a) and (4), Fla. Stat. The Department also has the authority to protect the public safety by ordering that the use of any elevator found to be in an unsafe condition be discontinued until the elevator has been repaired and may be operated safely. § 399.061(3). Section 399.02(5)(b), Florida Statutes, places on the elevator owner the responsibility "for the safe operation, proper maintenance, and inspection and correction of code deficiencies of the elevator after a certificate of operation has been issued by the department." The Department has adopted standards for the installation and maintenance of elevators in Florida Administrative Code Rule 61C-5.001, which provides in pertinent part: Adopted Standards. The installation and maintenance of elevators, dumbwaiters, escalators, moving walks, inclined and vertical wheelchair lifts, and inclined stairway chairlifts shall be governed by the following standards, which are hereby adopted and incorporated by reference. Chapter 30, Elevators and Conveying Systems, of the 2004 Florida Building Code, including the 2006 supplements; American National Standard Guide for Inspection of Elevators, Escalators, and Moving Walks, ASME A17.2-2004; and The Uniform Fire Safety Standards for Elevators, Chapter 69A-47, F.A.C., established by the Department of Financial Services. Chapter 30 of the Florida Building Code provides in pertinent part: 3001.1 Scope This chapter governs the design, construction, installation, alteration and repair of elevators and conveying systems and their components. Note: Other administrative and programmatic provisions may apply. See the Department of Business and Professional Regulation [DBPR] Chapter 399, Florida Statutes, and 61C-5, Florida Administrative Code. The regulation and enforcement of the following sections of the adopted codes, and their addenda, are preempted to the Bureau of Elevator Safety of the Department of Business and Professional Regulation: ASME A17.1, Part 8, ASME A17.3, Sections 1.2, 1.5, ASME A18.1, Part 10. 3001.2 Referenced standards Except as otherwise provided for in this code, the design, construction, installation, alteration, repair and maintenance of elevators and conveying systems and their components shall conform to ASME A17.1, ASME A17.1S, ASME A90, ASME B20.1, ALI ALCTV, ASME A17.3 and ASME A18.1. The Division of Hotels and Restaurants may grant exceptions, variances and waivers to the Elevator Safety Code as authorized by the Elevator Safety Code. (ASME A17.1, Section 1.2) and Florida Statutes (Chapter 120).[6] The Department did not separately incorporate by reference ASME A17.1, Part 8 (2004), or ASME A17.3 (1996) in Florida Administrative Code Rule 61C-5.001. ASME A17.2-2004, which is specifically incorporated by reference in Florida Administrative Code Rule 61C-5.001(1)(b), is entitled "Guide for Inspection of Elevators, Escalators, and Moving Walks" and provides in the Preface in pertinent part as follows Requirements for Existing Elevators Elevators and escalators in jurisdictions that have adopted the Safety Code for Existing Elevators and Escalators, ASME A17.3, . . . must, at a minimum, conform to the requirements identified in the Guide as "A17.3." If an existing installation does not meet the requirements of the A17.3 Code, it must be upgraded. If an existing installation was required to meet more stringent requirements, it must continue to meet those requirements.[7] The Preface to ASME A17.3 (1996), the edition of the standard used by the Department, includes a statement of the general purpose of the standard and provides in pertinent: This Code is intended to serve as the basis for state and local jurisdictional authorities in adopting retroactive requirements for existing elevators and escalators to enhance the safety of the general public. It is also intended . . . as a standard of safety practices for building owners and managers of structures where existing elevator equipment covered in the scope of the Code is used. The purpose of this Code is to establish minimum requirements that will provide a reasonable degree of safety for the general public. [8] Section 1.2 of ASME A17.3 (1996) provides in pertinent part as follows: "Existing installations, as a minimum, shall meet the requirements of this Code. If an existing installation does not meet the requirements of this Code, it shall be upgraded. If an existing installation was required to meet more stringent requirements, it shall continue to meet those requirements."9 Section 1.5 of ASME A17.3 (1996) provides that existing installations must conform to Part X of ASME A17.1, Routine, Periodic, and Acceptance Inspections and Tests, and to Part XII, Alterations, Repairs, Replacements, and Maintenance.10 Part 8 of ASME A17.1 (2004), the edition of the standard used by the Department, "contains general requirements for new and used existing equipment."11 A note appended to the statement of the scope of Part 8 states that "[r]equirements 8.1, 8.6, 8.9, 8.10, and 8.11 apply to both new and existing installations."12 Requirement 8.1 deals with security for new and existing elevators; Requirement 8.9 requires placement of a Code data plate on all new and existing elevators; Requirement 8.10 applies to new installations and alterations to existing installations. Pertinent to this proceeding, Requirement 8.6 "applies to maintenance, repairs, and replacements" and Requirement 8.6.1.2 provides as follows: Maintenance, repairs, and replacement shall conform to 8.6 and the Code at the time of the installation Code requirements at the time of any alteration ASME A17.3 if adopted by the authority having jurisdiction[.][13] Requirement 8.11 applies to "periodic inspections and tests of existing installations", and Requirement 8.11.1.2 provides as follows: Inspections and tests required by 8.11.2 through 8.11.5 are to determine that the existing equipment conforms with the following Code requirements: the Code at the time of installation the Code effective as applicable to and for each alteration the ASME A17.3 Code, if adopted by the authority having jurisdiction[.][14] Section 399.03, Florida Statutes, governs the design, installation, and alteration of conveyances, and provides in pertinent part: "(7) Each elevator shall comply with the edition of the Florida Building Code or Elevator Safety Code that was in effect at the time of receipt of application for the construction permit for the elevator."15 The Department publishes Industry Bulletins and Technical Advisories regarding the implementation of Chapter 399, Florida Statutes, and it also publishes statements of "Current Practices" on its website. At issue herein are statements made in Industry Bulletin for Florida's Elevator Industry Number 2006-01, dated April 1, 2006; Industry Bulletin for Florida's Elevator Industry Number 2006-04, dated August 1, 2006; Industry Bulletin for Florida's Elevator Industry Number 2008-03, dated July 18, 2008, and revised July 21, 2008; Technical Advisory Issue 2008-01, dated August 18, 2008; and contained in a posting on the Department's website entitled "Elevators Current Practices." In each of these documents, the Department indicated that, to ensure the safety of the public, it would enforce the provisions of the then currently-adopted edition of the Florida Building Code to the extent that the Florida Building Code required retrofitting or modification of existing elevators. In Industry Bulletin Number 2006-01, dated April 1, 2006, the Department stated that, notwithstanding the provision in Section 399.03(7), Florida Statutes, "that elevators 'shall comply with the edition of the Florida Building Code or Elevator Safety Code that was in effect at the time of the receipt for [sic] application for the construction permit for the elevator,'" it would not exempt existing elevators from the provisions of the "new" edition of the Florida Building Code that "require[] retrofitting older elevators because aging equipment may pose a threat to public safety." The Department stated that "Florida Statutes [specifically section 399.001 and 399.061(3)] are in agreement with ASME A17.1 (2000) and A17.3 (1996) regarding life safety issues" and that the Department would require "that, in the interest of public safety, the older and potentially hazardous elevator be brought into compliance with the newer code."16 In Industry Bulletin Number 2006-04, dated August 1, 2006, the Department reiterated its intent to enforce the "new" edition of the Florida Building Code regarding the modification of existing elevators to protect public safety because public safety was its paramount regulatory responsibility. It also reiterated that it could not "provide an elevator owner with an exemption from a new code provision essential to the safe operation of the elevator." The Department advised that it would specifically "require the single wall hydraulic cylinder safety provision of the ASME A17.1 2000 code [Section 8.6.5.8] [to] be enforced as part of the annual elevator inspection." The Department observed that "[t]he ASME Standards Committee considered these sections [Section 8.6.5.8 and sections reference therein] so important to life safety that corrective action is required for all existing single wall hydraulic cylinder elevators." The Department also advised elevator owners that, because compliance with certain code requirements might be "costly and/or complex," they "may submit to the bureau [of Elevator Safety] a letter of intent to comply within 30 days of the date of issuance of an Order to Correct and a plan of corrective action (PCA) within 60 days of the date of issuance of an Order to Correct."17 In Industry Bulletin Number 2008-03 dated July 18, 2008, and revised July 21, 2008, the Department stated in pertinent part: The Elevator Safety Code, Chapter 399, F.S.; Chapter 61C-5, Florida Administrative Code; Chapter 30 of the Florida Building Code; and the American Society of Mechanical Engineers (ASME) national standards ASME A17.1-2004 with A17.1a-2005 addenda, A17.2-2004, A17.3- 1996, and ASME A18.1-2003 provide a minimum standard for public safety. These are the codes currently in effect and they will be enforced. In fact, the more stringent of the codes in effect apply, unless specifically stated or otherwise adopted by the Bureau of Elevator Safety, which is the Authority Having Jurisdiction (AHJ). There are no exceptions. The elevator safety code is not subject to individual interpretation. The codes collectively apply to all elevators and provide for the health, safety, and welfare of the riding public.[18] In Technical Advisory Number 2008-01 dated August 18, 2008, headed "Temporary Variance for ASME A17.3 Violations," the Department stated that "elevator owners of older elevators have stated they cannot meet the 30-day requirement to correct costly and complex violations [of A17.3(1996)]." The Department advised that the Bureau of Elevator Safety "was moving forward to extend the current temporary compliance alternative (variance) to include additional A17.3(1996) violations beyond the initial cylinder replacement issue [see Industry Bulletin Number 2006-04]." The Department described the purpose and effect of the temporary variances, set out requirements that must be met in order for the temporary variance to remain in effect, and outlined requirements for elevator owners to request a temporary variance. In addition to information regarding temporary variances, the Department reiterated that "ASME A17.3 (1996) code applies to all existing elevators according to the 2002 revision of the Florida Building Code." In an undated document entitled "Current Practices" related to elevators, found on the Department's official website, the Department made the following statement: In recent months there has been some confusion regarding which version of the safety code the division uses to conduct safety inspections. The division relies upon Chapter 399, Florida Statutes; 61C- 5(1)(a), Florida Administrative Code; and Chapter 30 of the Florida Building Code. The division follows Chapter 30 of the Florida Building Code which in turn adopts ASME A17.1 and ASME A17.3 as governing the maintenance of elevators. Consequently, when inspecting elevators, pursuant to 399.061, Florida Statutes, the division uses ASME A17.1 and A17.3 codes. Nothing has changed the division's reliance on any of these documents. The division has not ceased enforcing A17.3.
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing, I make the following findings of fact. On or about April 28, 1988, Florida State University mailed its Invitation To Bid (ITB) No. K-1193-6, to prospective bidders. According to the elevator maintenance specifications attached to ITB No. K-1193-6, the stated purpose of the ITB was was to secure bids for the continuous maintenance of all elevators and dumbwaiters as per the attached list in accordance with the conditions, specifications, and terms listed herein." Responses to the ITB were submitted by Miami Elevator Company in the amount of $289,861.00, by Montgomery Elevator Company in the amount of $192,356.00, and by Mowery Elevator Company in the amount of $137,967.00. Section VI of the ITB requires each bidder to submit the following documentation with its bid. A statement indicating the address of the service center from which the bidder proposes to serve the University. To be acceptable the service center must be located within a ten (10) mile radius of the University campus to minimize travel time in securing parts and supplies. A statement certifying that the local service center from which he will service this contract will contain and maintain an inventory of a least $45,000.00 in parts and materials specifically intended for the elevators to be repaired and maintained under this contract. This inventory is to be available in the Tallahassee service center for inspection upon the request of authorized University officials. A list by name of the type and number of employees who will be assigned to the University under this contract detailing their education, training and experience record. To be acceptable the employees assigned must meet the following requirements in terms of quantity and qualifications. A minimum of two (2) full time, fully qualified and certified master elevator mechanics MUST be assigned to service this contract. Both must possess a "certificate of competency" from the Dept of Business Regulation, Division of Elevator Inspection. Copies of these certificates are to accompany the the (sic) vendors bid. At least one (1) of these two mechanics MUST BE ASSIGNED EXCLUSIVELY to servicing this contract at all times. The contractor may designate one of the two mechanics to be the primary mechanic to service this contract and he will devote his time exclusively to this contract. In the event this mechanic is ill or for other reasons cannot service the contract, the second mechanic designated under this paragraph will assume the duties of EXCLUSIVE service to this contract. THIS IS AN ABSOLUTE REQUIREMENT. An additional, fully qualified mechanic holding the above required "certificate of competency" and at least one (1) helper will also be listed and be available to render immediate support to the two primary mechanics to maintain and repair the elevators and dumbwaiters covered by this contract. * * * The ITB specified that bids would be opened at 11:00 a.m. on Tuesday, May 17, 1988. On or about May 26, 1988, Florida State University posted its Bid Tabulation rejecting all bids for failure to meet various specifications. The reason for the rejection of each bidder was listed on the Bid Tabulation as follows: As to Mowery the rejection was based on Mowery's failure to provide a certificate for additional mechanic; no proof of experience on other than Mowery Elevators; and no mention of traction elevators. As to Montgomery the bid was rejected for failure to provide certificates for mechanics; As to Miami the bid was rejected for failure to meet inventory requirements. Paragraph 9, entitled "Awards," of the ITB reserves the right of the University to reject any and all bids as the best interest of the University may require. The Miami Elevator Company bid included a letter of certification. Pertinent portions of that certification are as follows: Address of service center from which we propose to serve the University: 850 Blountstown Highway Tallahassee, Florida 32304 (904) 576-0161 We hereby certify that the Miami Elevator Company local service center has an inventory equal or greater than 10 percent of the total bid amount and have parts inventory greater than $45,000.00 in our nearest supply warehouse. In 1985, Florida State University issued bid specifications for elevator maintenance services. The 1985 bid specifications contained a certification requirement which included the following language: A statement certifying that the local service center has an inventory equal to at least ten percent (10 percent) of the total bid amount and is supported by a parts inventory of parts required to service the elevators and dumbwaiters covered by this contract, of at least $45,000.00 in the bidder's nearest supply warehouse. The local inventory, shall be available in the bidder's Tallahassee service center for inspection by authorized University personnel before the bid award. The successful bidder is to provide the University, by 7/31/85, with the parts list of the $45,000.00 inventory he is required to maintain. Experience has shown that inventories in the above amounts are necessary to provide support for an installation with the number of elevators and dumbwaiters located at the University. In 1988, prior to the preparation of the bid specifications at issue here, representatives of Miami Elevator Company met with representatives of Florida State University and suggested that the latter make certain changes to the above- quoted language from the 1985 bid specifications when they prepared the 1988 bid specifications. The University representatives followed the suggestions and when the 1988 specifications were issued, the certification requirements regarding inventory read as set forth above in paragraph 2 of these findings of fact. When Miami Elevator Company prepared its bid response to the 1988 ITB, the company representative preparing the bid used the company's 1985 bid response as a model. When he came to the portion of the certification that addressed inventory, he forgot that he and one of his company colleagues had prevailed upon the University to change that requirement. Because of his failure to remember the change, the Miami Elevator Company representative simply copied the inventory certification statement that appeared in the company's 1985 bid response. That statement was responsive to the 1985 bid specifications regarding inventory certification, but was not responsive to the 1988 bid specifications regarding inventory certification. The representative of Miami Elevator Company intended to submit an inventory certification that complied with the requirements of the 1988 bid specifications, but simply made a mistake and copied the language from the company's 1985 bid response. The inventory certification requirement is in a mandatory portion of the bid specifications. It is a material requirement because the availability of a sufficient parts inventory is critical to the timely and efficient maintenance and repair of the elevators and dumbwaiters. The pricing portion of the Miami Elevator Company bid appears to have been prepared with a lack of much attention to detail. The total contract price of $289,861.00 was calculated by one of the company's regional managers. The individual who calculated that total price had not inspected any of the elevators at the university, had no current personal knowledge of any specific elevator, and did not possess a certificate of competency from the Department of Business Regulation, Division of Elevator Inspection. Further, he appears to have misconstrued the significance of a report regarding the condition of some of the elevators and also appears to have made some unwarranted assumptions about the scope of the work required under the bid specifications. Another representative of Miami Elevator Company inspected some of the elevators, but he did not participate in the calculation of the bid amount. As a result of what appears to have been a rather broad-brush approach to the bid calculation process, the Miami Elevator Company bid was more than $100,000.00 over what the university expected the bids to be and was almost $100,000.00 over the second highest bid. The base price of the prior contract awarded in 1985 was $105,344.00. The Miami Elevator Company bid of $289,861.00 represents an increase of approximately 175 per cent of the 1985 price. The university expected that there would be a significant price increase due to such matters as the inflation rate over the past three years, inflation projection for the next three years, and some of the differences between the 1985 and the 1988 bid specifications, but it did not expect an increase of 175 per cent. The university has estimated that a reasonable bid would represent approximately a 75per cent increase in the 1985 price. The factors on which the university estimate are based appear to be reasonable and logical. The Miami Elevator Company facility located at 850 Blountstown Highway includes a separate warehouse on the property which contains inventory valued at approximately $70,000.00. That inventory would be available to service the university elevators. The subject ITB specifically required that each bidder certify that it agreed "to abide by all conditions of this bid." Miami Elevator Company made such a certification when its representative signed the first page of the ITB.
Recommendation For all of the foregoing reasons, it is recommended that the Florida State University issue a final order in this case rejecting all bids. DONE AND ENTERED this 26th day of July, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2960BID The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Petitioner, Miami Elevator Company Paragraphs 1, 2, 3, and 4: Accepted. Paragraph 5: Accepted, with some additional details for clarity. Paragraph 6: Rejected as irrelevant to the issues in this case. Paragraphs 7 and 8: Accepted, with some unnecessary details omitted. Paragraph 9: First sentence rejected as not supported by persuasive competent substantial evidence and as, in any event, irrelevant. Second sentence rejected as irrelevant. Paragraphs 10 and 11: Accepted. Paragraph 12: Rejected as constituting argument regarding legal conclusions rather than proposed findings of fact. Further, the legal conclusion asserted is not warranted by the evidence. Paragraph 13: Rejected as statement of another party's position rather than proposed finding of fact. Paragraphs 14 and 15: These two paragraphs have for the most part been rejected as constituting unnecessary details. Further, a number of the details proposed are not supported by persuasive testimony, because I am not persuaded that Mr. Herbst did a very careful job of informing himself about the requirements of the bid specifications or about the condition of the subject elevators. Paragraph 16: All but last sentence rejected as subordinate and unnecessary details. Last sentence rejected as not supported by persuasive competent substantial evidence. Paragraph 17: Rejected in part as subordinate and unnecessary details, in part as not supported by persuasive competent substantial evidence, and in part as contrary to the greater weight of the evidence. Paragraph 18: Rejected as contrary to the greater weight of the evidence. Paragraph 19: Most of this paragraph is rejected as constituting a statement of another party's position and as argument about that position. Findings are made that there are differences between the subject invitation to bid and the immediately preceding invitation to bid. Paragraphs 20 and 21: Rejected as subordinate and unnecessary details. Paragraphs 22 and 23: Rejected in part as argument rather than proposed findings, in part as not supported by persuasive competent substantial evidence, and in part as contrary to the greater weight of the evidence. Paragraph 24: First two sentences rejected as contrary to the greater weight of the evidence. The remainder of this paragraph (dealing with Mowery) is rejected as irrelevant. First Paragraph 25: Accepted in substance. Second Paragraph 25: Rejected as irrelevant or as subordinate and unnecessary details. Paragraph 26: Rejected as for the most part constituting argument rather than proposed findings; to the extent findings are proposed, they are rejected as not supported by competent substantial evidence or as contrary to the greater weight of the evidence. Findings proposed by Respondent, Florida State University Paragraphs 1 and 2: Accepted. Paragraph 3: Rejected as constituting discussion of legal conclusions rather than findings of fact. (The conclusions are essentially correct, but they do not belong in the findings of fact.) Paragraphs 4, 5, and 6: Accepted in substance, but with numerous unnecessary details omitted. Paragraph 7: First two sentences rejected as cumulative and repetitious. Last sentence accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: Rejected as subordinate and unnecessary details dealing more with legal conclusions than with facts. Paragraph 10: First two sentences rejected as cumulative and repetitious. The remainder of this paragraph is accepted in substance. Paragraph 11: Rejected as irrelevant. Paragraph 12: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 13: Rejected as irrelevant to the issues in this case. Paragraph 14: Rejected as constituting argument about legal conclusions rather than proposed findings of fact. (Again, the conclusions are essentially correct, but they do not belong in the findings of fact.) Paragraphs 15, 16, 17, 18, and 19: Rejected as irrelevant because these proposed findings all relate to issues that were not raised in prehearing pleadings and were not raised in the prehearing statement. Paragraph 20: Rejected as procedural details that do not need to be included in the findings of fact. Paragraph 21: Accepted in substance. Paragraph 22: Rejected as subordinate and unnecessary generalities. Paragraphs 23, 24, 25, 26, 27, and 28: Rejected as subordinate and unnecessary details. Paragraphs 29, 30, 31: Accepted in substance, with some unnecessary details omitted. Paragraphs 32, 33, 34, and 35: The essence of the findings proposed in these paragraphs has been found, but most of the details proposed have been omitted as subordinate and unnecessary. Findings proposed by Intervenor, Montgomery Elevator Company Paragraph 1: Accepted. Paragraph 2: Accepted in substantial part, but with irrelevant portions of the specifications omitted. Paragraphs 3 and 4: Accepted. Paragraph 5: Accepted in large part, but some irrelevant information has been omitted. Paragraph 6: Accepted in substance. Paragraph 7: First sentence rejected as constituting discussion of legal conclusions rather than proposed findings of fact. Second sentence accepted in substance by quotation of Miami Elevator Company's certification. Paragraph 8: Accepted. Paragraphs 9, 10, 11, 12, and 13: Rejected as irrelevant because these proposed findings all related to issues that were not raised in prehearing pleadings and were not raised in the prehearing statement. Paragraph 14: Bid amount is accepted; remainder is rejected as subordinate and unnecessary details. Paragraph 15: The essence of this paragraph has been included in the findings, but most details have been omitted as unnecessary. COPIES FURNISHED: Sonja P. Mathews, Esquire Associate General Counsel Office of the General Counsel The Florida State University 311 Hecht House Tallahassee, Florida 32306 Harold F.X. Purnell, Esquire Oertel & Hoffman, P.A. 2700 Blairstone Road, Suite C Post Office Box 6507 Tallahassee, Florida 32314-6507 S. Grier Wells, Esquire Brant, Moore, Sapp, MacDonald & Wells 121 West Forsyth Street, Suite 900 Post Office Box 4548 Jacksonville, Florida 32201
