The Issue There were four cited violations: Failure to keep daily medical administration records. Failure to document monthly fire drills. Violation of fire code by having bolts and chains on front and back door. Violation of fire code by having a door in a resident's room blocked by the resident's bed. Lauchner admitted these facts and DHRS proved the facts of allegations. However, there is an issue of law regarding whether all or part of the fire code violations apply to an ACLF which has less than three residents. Neither party filed proposed findings although DHRS filed copies of the applicable rules as a late filed exhibit and Ms. Lauchner filed a letter which contained her arguments but no proposed facts.
Findings Of Fact Mildred Lauchner is licensed by DHRS to operate Lauchner ACLF. This facility is licensed for three residents but it has never had more than two residents at one time. Mildred Lauchner is a mature white female who has worked at hospitals and nursing homes as an aide. She has operated an ACLF for several years and has a good general reputation with DHRS. She does this primarily alone with the assistance of a cleaning person who comes several times per week. Ms. Lauchner exhibited confusion about the sequence of events which lead to these fines being levied. Residents at the Lauchner ACLF are primarily elderly bed-ridden persons who do not need nursing care. On January 29, 1985 an inspection was conducted of Lauchner ACLF by DHRS. A copy of the inspection report was introduced as PEX 1. This inspection revealed various Class III deficiencies. A copy of this report was presented to Mildred Lauchner on February 23, 1985. She had 30 days to correct the deficiencies from the date of the deficiencies. On March 22, 1985 Lauchner ACLF was inspected. Four of the deficiencies were not corrected. Daily medication records were not being kept as required, there was no documentation of monthly fire drills, locks were on exit doors and a bed in a bedroom blocked an outside door. On May 22, 1985 the Lauchner ACLF was reinspected. Of the deficiencies previously noted in paragraph 5 above, the monthly fire drills had been documented and one of the exit doors had been brought into compliance with the life safety code. Lauchner ACLF had at least three exterior doors: a front door, a back door and door to the outside of the house in a bedroom. On June 4, 1985 the DHRS served an administrative complaint on Mildred Lauchner seeking to impose a total fine of $700.00 broken down as follows: $150.00 failure to keep daily medical administration records. $100.00 failure to document fire drills. $250.00 failure to have only simple locks on exit doors and having bolts or chains on such doors. $200.00 blocking an "exit" door in a bedroom.
Recommendation Having found that Lauchner ACLF was in violation of 10A- 5.24(1)(a)(3), Florida Administrative Code, it is recommended that the civil penalty of $150.00 be levied against Mildred Lauchner, the licensed operator. DONE AND ORDERED this 14th day of February 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February 1986. COPIES FURNISHED: David Pingree, Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Steve Huss, Esquire General Counsel Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Carol Wind, Esquire District V Legal Counsel 2255 East Bay Drive Clearwater, Florida 33518 Mildred Lauchner Lauchner ACLF 404 Madison Avenue North Clearwater, Florida 33515
The Issue The issues in this case are whether Respondent violated provisions of the Food Code and, if so, what penalties should be imposed.
Findings Of Fact The Division is responsible for monitoring all places of public food service and preparation in the state. It is the Division's duty to ensure that all public eating establishments comply with the standards set forth in relevant statutes and rules. Steagles, LLC, operates a food establishment located at 1395 Cypress Avenue, No. C, Melbourne, Florida. For purposes of this Recommended Order, the establishment will be referred to as “Steagles.” On January 30, 2012, at 11:10 a.m., the Division conducted an unannounced health and safety inspection of Steagles. A number of violations, both critical and non- critical, were found. Critical violations are those which are likely to lead to food-borne illnesses; non-critical violations are those which are not as likely to lead to such illnesses. At the conclusion of inspection, the Division notified Respondent that a “callback” inspection would be performed on March 29, 2012, at 8:00 a.m., and that all the violations were to be corrected by that time. On the specified date, but at 1:26 p.m., the callback inspection was conducted at Steagles. The callback inspection resulted in a finding of three critical violations and four non-critical violations which had not been corrected since the initial inspection. The critical violations found during the callback inspection were as follows: 31-09-1 The sink used by employees to wash their hands was blocked by a bucket of towels. 22-81-1 The interior of a microwave was heavily soiled; the interior of a reach-in cooler was heavily soiled; and, there was heavy encrusted material on a can opener. 32-04-1 The restroom doors did not have self-closing devices attached to them, nor did the trash receptacles have lids. The non-critical violations found during the callback inspection included the following: 14-35-1 Cardboard was being used as a shelf liner; a cutting board was badly scored. 15-35-1 A wooden shelf did not have sealant on it. 37-06-1 Walls were heavily soiled with grease. 38-07-1 There were no shields or caps on some of the lighting fixtures. The storage of towels or other items in the sink used for washing hands could lead to cross-contamination which could lead to food-borne illness. The soiled microwave, can opener, and reach-in cooler could lead to bacterial growth and could cause physical contamination of food. The absence of self-closing doors and lids on restroom trash cans could result in the attraction and harborage of insects and rodents. The non-critical violations, though less serious, could result in bacterial growth, the attraction of rodents, or other problems. The conditions found during the inspection were attested to at final hearing by the inspector who made the observations. Respondent did not rebut or disprove any of the alleged violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine in the amount of $1,350.00, to be paid by Respondent, Steagles, LLC, within 30 days of the entry of a Final Order in this matter. DONE AND ENTERED this 27th day of December, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2012. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 Michael J. Patrick Steagles, LLC No. 6 1395 Cypress Avenue Melbourne, Florida 32935 William L. Leach, Director Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether respondent committed the violations alleged in the Notice to Show Cause, and if so, whether its license should be revoked or suspended, or whether a civil penalty should be imposed.
Findings Of Fact At all times relevant- to this cause, Real Estate Rentals, Inc. held license number 39-926-H issued by the Department of Business Regulation, Division of Hotels and Restaurants (Division) for the premises known as Ippolito Apartments located at 112 South Brevard Avenue, Tampa, Hillsborough County, Florida. The president of Real Estate Rentals, Inc. is E. L. Ippolito. On February 27, March 14, and March 25, 1986, Pablo Mercado inspected the Ippolito Apartments. Mr. Mercado is employed by the Division as an Environmental Health Specialist and his duties include the inspection of hotels, apartments, and other buildings. Mr. Mercado inspects between 40 and 50 buildings a week. Each building is routinely inspected four times a year. When Mr. Mercado inspected the Ippolito Apartments on February 27, 1986, he found several conditions which he considered to be statutory or rule violations. Mr. Mercado noted these violations on a standard form of the Division. The Division's form lists various items numbered 1-36. Items 1 (Fire Extinguishers), 5 (Fire Hazards), 11 (Building Repair/Painting), and 19 (Screening) were checked on the form as minor violations, and comments were made concerning each item. As to Item 1, Mr. Mercado noted that no fire extinguishers were in the building and that a fire extinguisher was needed on each floor or one in each apartment. As to item 5, Mr. Mercado noted that furniture needed to be removed from the hall. As to item 11, Mr. Mercado made the following comments: Need window facing st. apt. #1. You need a window in bathroom apt. #1. Paint inside bldg. Stairs need repair. Hole in bathroom floor apt. #3. Water leaking in the bathroom from the upstairs apt. into apt. #1. As to Item 19, Mr. Mercado noted that all the screens missing on the windows had to be replaced. The form was sent to Real Estate Rentals, Inc., with the indication that the document was a warning and that all violations had to be corrected by March 14, 1986. When Mr. Mercado made his inspection on February 27, 1986, he did not observe a hole in the bathroom floor in apartment #3 or observe any water leaking into the bathroom in apartment #1, and there was no competent evidence presented at the hearing to establish that either of these conditions existed. Mr. Mercado did observe that there were no fire extinguishers in the hall, and he did go into one apartment and observed that there was not a fire extinguisher in that apartment. Two other tenants informed him that they did not have a fire extinguisher in their apartments. Mr. Mercado observed that one of the windows facing the street contained no window pane but simply had a plastic bag taped over the window frame on the outside of the building to cover the empty space. On other windows jalousie slats were missing, and the window on the bathroom of apartment #1 was covered with a piece of plywood. Some screens were missing and some screens were torn up. One of the steps on the stairs was missing part of the two-inch lip, which created a hazard to individuals using the stairs. On March 14, 1986, Mr. Mercado made a return inspection. He noted that the furniture had been removed from the hall. However, he did not feel that any of the other violations listed had been corrected. Therefore, Mr. Mercado filled out a Call Back/Re-Inspection Report", which referred to the warning issued on February 27, 1986, and made the following comments: Violations: #1--#5--#11--#19 (See DBR-226) Only violation #5 is complied. The rest of the violations #1,#)1,#19 are not complied. The report indicated that the time to correct the violations had been extended to March 24, 1986. This report was sent to the respondent by certified mail. On March 25, 1986, Mr. Mercado again inspected the Ippolito Apartments. The conditions had not changed from the time of his previous inspection on March 14, 1986. Mr. Mercado visited the Ippolito Apartments again on April 7, 1986, and also on June 10, 1986. The pictures admitted into evidence as petitioner's exhibits No. 6 were taken on June 10, 1986. On June 10, 1986, the building was in the same condition as it had been on February 27, March 14, and March 25, 1986, except that several of the windows on the front of the building had been replaced with plywood boards. Mr. Mercado did not believe that the replacement of the windows with the boards corrected the violation as to the windows, but he could not remember whether the windows had been replaced with the plywood as of March 14th or the March 25th inspection, or whether they were replaced at a later time. Since slats were still missing from other windows on all of his inspections, he did not feel the violations as to the windows had been corrected. By June 10, 1986, the windows in front of the apartment had been replaced with plywood backed by 2 x 4 studs. According to Mr. Howell, who performed the work, the replacement of the windows with the plywood structure occurred approximately 2 1/2 months prior to the hearing, which would have been early or mid-April, 1986. In that the only competent evidence as to the date of the replacement of the front windows was Mr. Howell's testimony, it is found that the windows in the front of the building had not been replaced with plywood at the time of Mr. Mercado's inspections on March 14 and March 25, 1986. There was no competent evidence presented as to the condition of the windows in the front of the building on March 14 or March 25, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a final order finding respondent guilty of three violations of Rule 7C-1.03(1) and one violation of Rule 7C-1.04(1) on February 27, March 14 and March 25, 1986, as set forth in charges 1 through 4 of the Notice to Show Cause, finding respondent not guilty of the violations set forth in charges 5 and 6 of the Notice to Show Cause, and imposing a total civil penalty of $975 assessed as follows: (1) failure to provide adequate fire extinguishers, $100 for each offense for a total of $300, (2) failure to maintain windows in good repair, $100 for each offense for a total of $300, (3) failure to maintain stairs in good repair, $50 for each offense for a total of $150, (4) failure to maintain screens in good repair, $75 for each offense for a total of $225. DONE and ENTERED this 9th day of October, 1986, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1800 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 to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner 1. Accepted in paragraph 1. 2.-3. Accepted generally in paragraph 2. Accepted in paragraph 3. Accepted in paragraph 4, except that competent evidence showed only that at least one apartment did not have fire extinguisher. The only evidence as to other apartments was hearsay. Rejected as immaterial. Rejected as immaterial in that evidence showed there was not a fire extinguisher in each apartment. 8.-9. Accepted in paragraph 4. 10. Rejected as irrelevant in that respondent was never notified or charged with a violation based on that condition. 11.-12. Accepted generally in paragraph 4. 13. Accepted in paragraph 3. 14.-15. Accepted in paragraph 5. Accepted in paragraph 6. Accepted in background, not finding of fact. Accepted in part in paragraph 7, however, whether violations were corrected was irrelevant because respondent was not charged with violations on April 17, 1986. Rejected as not a finding of fact in that it is a recitation of testimony. Rejected, date of repair set forth in paragraph 8. 22.-23. Rejected as immaterial and as recitation of testimony. 24. Rejected to the degree it is a finding of fact in that replacement of windows occurred after relevant time period. 25.-31. Rejected, not finding of fact. Rulings On Proposed Findings of Fact Submitted by the Respondents Accepted in paragraph 1. Rejected as irrelevant and also not supported by the evidence in that a violation was noted for correction. Accepted in paragraph 3. Accepted in part and rejected in part as set forth in paragraph 4. Accepted in paragraph 5. Accepted in part in paragraph 8, however, repair work irrelevant since it occurred after date of inspections. Rejected as irrelevant. Accepted in part in paragraph 4. Whether bathroom had exhaust fan is irrelevant since the issue was whether the window was in good repair. Reject that Mr. Mercado was not a credible witness. COPIES FURNISHED: James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 R. Hugh Snow, Director Department of Business Regulation Division of Hotels and Restaurants The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Lynne A. Quimby, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Mr. Emilio L. Ippolito 901 South Rome Avenue Tampa, Florida 33606
Findings Of Fact Following an April, 1985 inspection of the ACLF known as Family Affairs, Respondent timely obtained certificates for its two employees viz. Elinore Kolligs and Kathy Cisterna showing them free from communicable diseases and presented these certificates at the follow up inspection to satisfy the cited deficiency. Those two employees were employed during the April, 1986 annual inspection which resulted in a repeat citation for the same alleged violation, i.e. no certification that the employees were free from communicable disease. There is no requirement that employees of an ACLF obtain certificates annually that they are free from communicable diseases. The fact that documentation had been provided to DHRS following the April, 1985 inspection that these same employees cited in 1986 were free from communicable diseases should have carried over to the 1986 inspection. Exhibit 3 lists three employees under ACLF 26, the third being Virginia Sumter who worked as a volunteer at the facility. Ms. Sumter was a former resident at the facility who had provided a certificate that she was free of communicable diseases when she entered as a resident. In this connection during the proceedings Respondent inquired of Petitioner's witness if non-paid volunteers required certificates showing them free from communicable diseases and the response was in the affirmative. When asked if this also applied to Boy or Girl Scouts who worked at the ACLF as volunteers no satisfactory answer was forthcoming. One of the two uncorrected violations listed in the Administrative Complaint dated March 19, 1987 is that Respondent had six residents when the facility was licensed for only five (ACLF 2). This violation was noted at the April 14 inspection and also at a follow up inspection on July 14, 1986. The house in which this facility is located is large and on a minimum square feet per resident basis can accommodate nine residents. On March 18, 1986, before the April, 1986 inspection, Respondent obtained zoning approval from the City of Clearwater to increase the capacity of the ACLF to seven persons (Exhibit 15). Respondent had also communicated with the ACLF Program Manager in Petitioner's Jacksonville office and had been assured that her application to increase the licensed capacity to six residents would be approved. By letter dated May 14, 1986, (Exhibit 10) Respondent was advised by Petitioner that at the time of the April 14, 1986 survey an appraisal for the application to increase licensed capacity from five to six was conducted and the facility met all standards related to the increase. By letter dated May 29, 1986, Petitioner acknowledged that notice of approval of the application to increase the licensed capacity had been received and a recommendation approving the increase had been forwarded to the Office of Licensure and Certification in Jacksonville, Florida (Exhibit 16). By letter dated July 21, 1986, Respondent was issued a new license authorizing six residents at the facility. During the survey conducted on April 14, 1986 the facility did not have a week's supply of non-perishable food on hand as required (ACLF 67) and this deficiency remained uncorrected at the follow up inspection on July 14, 1986. Respondent acknowledged that during that period Mrs. Kolligs' daughter was injured in an accident, that Mrs. Kolligs devoted much time to her daughter and authorized the cook to use the emergency supplies if necessary due to the curtailment of Mrs. Kolligs' shopping time. Subsequent to the July, 1986 re-inspection Mrs. Kolligs sold the facility and no longer operates this ACLF.
The Issue The issue in this case is whether the Respondent, DGJ Properties (Respondent), committed the violations alleged in the Administrative Complaint dated September 2, 2004, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state entity charged with the responsibility of licensing and regulating hotels and restaurants within the State of Florida. At all times material to the allegations of this case, the Respondent was licensed by, or subject to, the jurisdiction of the Petitioner. As such, the Respondent is required to comply with all Florida statutes and administrative rules governing lodging establishments. The Respondent is licensed (license number 2300240) as a non-transient 18-apartment complex located at 440 Southwest 5th Avenue, Miami, Florida 33130-2767. The Respondent has owned and operated the subject property since December of 1999. On July 12, 2004, one of Petitioner’s inspectors performed a lodging inspection report that denoted several violations of the administrative rules governing public lodging establishments. The inspector, Jorge Gandolff, listed all of the violations on a Legal Notice Form that accompanied the report. A copy of the report was provided to the Respondent. On July 12, 2004, the inspector noted the following violations at the Respondent’s property: An LP gas tank having a water capacity greater than 2 1/2 pounds was inside apartment six. An exit sign did not illuminate or function properly when tested by the inspector. An emergency light did not function when tested by the inspector. An air conditioner was being operated by power provided through an electrical extension cord. When a balcony certificate was requested, it was not made available to the inspector. There was water damage on the ceiling of apartment six. There was a hole and water damage to the ceiling of bedroom area in apartment six. There was a 12-inch hole in the first floor hallway. There was a torn or worn stair runner. There was a leaking faucet in a bathroom. There were fresh rodent droppings. There was trash and/or debris on the grounds. There was discarded construction or maintenance refuse on the premises including a broken door in a hallway. The license for the establishment was not displayed in the office. The Legal Notice Form listing the violations provided that the Respondent would be afforded approximately ten days to make corrections. On August 19, 2004, the inspector returned to the Respondent’s premises to follow-up on the violations previously noted. At that time, the inspector found the following violations uncorrected: An LP gas tank having a water capacity greater than 2 1/2 pounds was located within apartment six. An exit sign did not illuminate or function appropriately when tested. An emergency light did not function when tested. An electrical extension cord was being used to power an air conditioner. The Respondent could not produce a balcony certificate. There was water damage on the ceiling of apartment six. There was a hole in the ceiling (bedroom area) with plaster falling down in apartment six. There was a 12-inch hole in the first floor hallway. There was a torn or worn stair runner. There was a leaking faucet in a bathroom. There were fresh rodent droppings. There was trash and debris on the grounds. There was discarded construction or maintenance trash on the premises (the broken door was still in the hallway). There was no license for the establishment on display in the office. According to the inspector, “critical violations” are designated “critical” because they pose an immediate threat to the public health and safety. Less “non-critical” violations are given more time to correct. Fire safety issues are generally assessed “critical.” In this case there were no fewer than five “critical” violations because they presented fire safety problems. It was expected that all critical violations would be promptly repaired or cured. The Respondent failed or otherwise refused to make the corrections noted within ten days of the original inspection. The existence of an LP tank at apartment six constituted a critical violation. Using an electrical extension cord to power an air conditioner was also considered a critical violation. The credible evidence from the inspector established that many of the violations were associated with apartment six. The residents in apartment six were in the process of being evicted. In fact, they had changed the lock so that the landlord did not have access to the apartment. The Respondent theorized that the complaint to the Department that precipitated the inspection was in retaliation for the eviction notice being served on the residents in apartment six. The Respondent did not, however, advise the Petitioner at the time of the inspections that the tenant had willfully refused the landlord access to the apartment. Mr. Jimenez believes that the tenant changed the locks to the apartment so that he and his staff could not have access to correct problems within the unit. He also maintained that the emergency sign and exit signs were vandalized. He further claimed that the balcony certificate had been provided to another inspector. Mr. Gandolff searched the Department’s records but could find no balcony certificate for the subject property. The Department maintains certificates for three years. Properties are to have railings and balconies certified for safety as required by the rules. According to Mr. Jimenez by the time of the final hearing he had corrected all matters complained of in this case. He maintained that the residents of apartment six had delayed the repairs and that the hurricanes of last year precluded timely repairs. He opined that most repairmen were unavailable for this type of work because the hurricane damages provided greater and more lucrative employment opportunities for such workers elsewhere. He opined that he could not obtain workers to perform the work any quicker than he did. The Respondent did not, however, produce a copy of a balcony certificate pertaining to the subject property nor any record as to the repairs itemized in the complaint. The Respondent further maintained that it is difficult to correct vandalism because it is a constant problem.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a Final Order imposing an administrative fine in the amount of $3000.00, and requiring the Respondent to attend, at its personal expense, an educational program sponsored by the Hospitality Education Program to fully educate the Respondent regarding its responsibilities under the law. S DONE AND ENTERED this 26th day of May 2005, in Tallahassee, Leon County, Florida. J. 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 26th day of May, 2005. COPIES FURNISHED: Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Danilo Jimenez Post Office Box 371601 Miami, Florida 33137
The Issue The issues in this case are: a) whether White Construction Company, Inc. timely filed its requests for hearing with the Department of Transportation in response to notices of intent to suspend White's certificate of qualification because of alleged delinquencies on State Project Nos. 97770-3305 and 97770-3306 and; (b) if not, whether the doctrine of equitable tolling, waiver, estoppel or other legal or equitable principles apply under the facts of this case such that White is entitled to a formal hearing on the merits of the department's determination of delinquency.
Findings Of Fact White Construction Company, Inc. (White) is a contractor prequalified to bid on Department of Transportation (Department) construction projects in excess of $250,000. It was incorporated in 1951 and maintains a home office in Chiefland, Florida. White was the successful bidder on three projects that are included within the Department's Seminole Expressway Project in Seminole County which is being funded and supervised by the Department's Turnpike Office. The projects are three contiguous segments and are identified as State Project Nos. 97770-3304, 97770-3305 and 97770-3306. The Seminole Expressway Project consists of twelve separate projects. HNTB Corporation is the Department's Resident Engineer for Project Nos. 97770-3304 and 97770-3306 and maintains an office at 2927 US 17-92 in Sanford. ICF Kaiser Engineers is the Resident Engineer for Project No. 97770-3305 and maintains an office in a trailer at the job site. The Resident Engineers are the main liaison between White and the Department on the Project. The Department's Turnpike Office maintains a local office at 112 Beider Avenue in Casselberry. The Resident Engineers are supervised from that location by Mr. Gary Geddes, the Department's Program Manager, in conjunction with Mr. Ray Daniel, an Area Engineer who is employed by Post, Buckley, Schuh and Jernigan, which is under contract with the Department. The Resident Engineers, though employed by private consultants, serve as the Department's representatives and are delegated the title of Engineer of the Project for the Department. On July 30, 1993, the Department issued notices of intent to suspend White's certificate of qualification because of alleged delinquencies in White's performance on State Project Nos. 97770-3305 and 97770-3306. The Department's notices of intent to suspend were received by White at its Chiefland offices on August 3, 1993. Each notice contained the following language: Pursuant to Florida Administrative Code Rule 14-23 and in accordance with this determination, we intend to suspend your Certificate of Qualification and those of your affiliates. This suspension will become conclusive final agency action unless you request an Administrative Hearing within ten (10) days of receipt of this notice. Your request for a hearing shall be in writing and shall be filed with the Clerk of Agency Proceedings, Mail Station 58, Haydon Burns Building, 605 Suwanee Street, Tallahassee, Florida 32399-0450 within ten days of receipt of this notice. A copy of the request for hearing shall also be provided to the State Construction Engineer, Mail Station 31, Haydon Burns Building, 605 Suwanee Street, Tallahassee, Florida 32399-0450. The request for hearing shall include: The name and address of the party making the request; A statement that the party is requesting a formal or informal proceeding; and All specific facts and circumstances which the Contractor believes legally excuses the unsatisfactory progress on the project. A request for hearing is filed when it is delivered to and received by the Clerk of Agency Proceedings. If a hearing is timely requested after the receipt of the notice of the intent, the hearing shall be held within 30 days after receipt by the Hearing Officer of the request for hearing in accordance with 337.16 of the Florida Statutes. In addition to a request for an Administrative Hearing and in accordance with Article 8-8.2 of the Special Provisions of this project, you are hereby given opportunity to request an extension of allowable contract time in an amount of cause progress on this contract to be acceptable or to submit other information to show that progress of work is not delinquent. (Petitioner's Exhibit #7, emphasis added) White forwarded the two Notices of Intent to its attorneys, Cummings, Lawrence and Vezina, P.A. On August 11, White's attorneys sent to Mr. Burney Keen of White Construction, via Federal Express Priority Morning Delivery, a package containing originals and copies of requests for formal hearing and for contract time extensions for both projects, with written instructions to have the requests executed and delivered to the Clerk of Agency Proceedings and James Lairscey, via Federal Express, and to hand deliver copies to the Project Engineers no later than August 13. The package from White's attorneys did not arrive at White's offices until late in the afternoon on August 12, when Mr. Keen was no longer in the office. Mr. Keen did not receive the package from White's counsel until the morning of August 13. Notwithstanding the Priority Delivery designation, Federal Express delivery to White's Chiefland office occurred between 3:00 p.m. and 5:00 p.m. Mr. Keen instructed his secretary, Patti Cook, to have the documents executed by an officer of White, and to have them hand-delivered to the Department's Resident Engineers and delivered to the Department's Tallahassee offices by Federal Express, in accordance with counsel's instructions. On Friday afternoon, August 13, 1993, White hand-delivered its request for hearing, along with its requests for contract time extension, to the Department's two Resident Engineers. On that same day, White sent out a package containing copies of these documents by Federal Express addressed to Mr. J. Lairscey, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. Mr. Keen and Ms. Cook both believed that J. Lairscey was the Clerk of Agency Proceedings. This is not surprising since at his deposition, J. Lairscey, who is the State Construction Engineer for the Department, did not know who the Clerk of Agency Proceedings was either. Standard operating procedure for the Project established by the Department at the preconstruction conference required that all correspondence from White be sent to the Department's Resident Engineers. Mr. Keen believed it to be of utmost importance to timely hand-deliver the requests for formal hearing to the Department's Resident Engineers. Although White had filed notices or requests with the Department Clerk in the past, this was Mr. Keen's first experience with the delinquency filing procedures. The package arrived at the Department's offices in Tallahassee on Saturday, August 14, 1993, and was delivered to Mr. Lairscey's office, MS 31, and not MS 58 (which is the Clerk of Agency Proceedings' Mail Station and office) on the morning of August 16, 1994. The package delivered to ICF Kaiser contained an original letter from White addressed to Michael Landry, which requested an extension of time on Project No. 97770-3305 and referred to an enclosed request for hearing. The package also contained an original letter addressed to: Clerk of Agency Proceedings, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. The letter to the Clerk requested a formal hearing in response to the Department's July 30th Notice of Intent and referred to three large appendices which were enclosed. Upon its receipt on August 13, 1993, a secretary and the office engineer at ICF Kaiser's office recognized that they received misdirected originals of important legal documents. The office engineer and secretary telephoned Ray Daniel, the Department's Area Engineer, at the Department's office in Casselberry and told him that they had received from White what looked like an original legal document, which they did not think they were supposed to have. They questioned whether the documents should be redirected to the Department. Mr. Daniel instructed them not to send the documents to him. Mr. Daniel knew that requests for hearing should be sent to the Clerk of Agency Proceedings in Tallahassee, but was not sure that a mistake was made and took no action regarding the request for hearing. The documents were filed away at ICF Kaiser until August 27, 1993, when Michael Landry followed up an inquiry from Ray Daniel and had the originals forwarded to the Turnpike's Casselberry office. The package delivered to HNTB Corporation also on August 13 contained an original letter from White addressed to Ralph Burrington which requested an extension of time on Project No. 97770-3306 and referred to an enclosed request for hearing. Like its counterpart, this package also contained an original letter addressed to: Clerk of Agency Proceedings, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. The letter to the Clerk requested a formal hearing in response to the Department's July 30th Notice of Intent and referred to three large appendices which were enclosed. The Resident Engineer at HNTB, Mr. Ralph Burrington, did not note that the documents were originals and filed them away. Mr. Burrington's normal procedure is to forward such documentation by facsimile to the Department's Casselberry office, but in this instance he feels he made a mistake. The package delivered to the Department's Tallahassee offices on Saturday, August 14, 1993, contained one signed photocopy of the requests for formal hearing for Project No. 97770-3305 addressed to the Clerk of Agency Proceedings, unsigned copies of the requests for formal hearing in Project Nos. 97770-3305 and 97770-3306 addressed to the Clerk of Agency Proceedings, as well as copies of the request for time extension for Project Nos. 97770-3305 and 97770-3306 and appendices. The documents were received by J. Lairscey on Monday, August 16, 1993, and were filed away until they were inspected on August 27, 1993, as a result of an inquiry by Ava Parker, a Department attorney. Sometime before August 27, 1993, Ava Parker, as a result of an inquiry from Gary Geddes, the Department's Program Manager, began to investigate whether White had filed its requests for hearing. Ms. Parker first checked with the Clerk of Agency Proceedings and was informed that nothing had been filed at that location. Ms. Parker then contacted Charles Peterson, the Department's Area Construction Engineer, to discern whether White had filed a request for hearing. Mr. Peterson searched his files and the Department's central files; he questioned various people in the Department's Tallahassee office and telephoned Ray Daniel in the Department's Casselberry office. Ray Daniel told Mr. Peterson that he had no knowledge concerning White's requests for hearing and no idea where they were. Mr. Daniel in fact knew at that time that White had delivered its requests for hearings to both Resident Engineers on August 13, based upon previous conversations with the Department's Resident Engineers and office staff. Mr. Peterson later discovered from Jimmy Lairscey that Mr. Lairscey had received the requests for hearing but they had been filed away. On Friday, August 27, 1993, Joe Lawrence, counsel for White, telephoned Ava Parker to discuss consolidation of the hearings and discovery. Ms. Parker advised White's counsel that no requests for hearing had been filed with the Clerk in response to the two Notices of Intent. Ms. Parker knew prior to her conversation with counsel for White that the requests had not been filed with the Clerk of Agency Proceedings, yet made no attempt to contact White or its counsel to notify them that the Clerk had not received the request. On Monday, August 30, 1993, copies of the requests for hearing were delivered to the Department's Tallahassee offices from counsel for White, via Federal Express addressed to Ava Parker and Clerk of Agency Proceedings, Florida Department of Transportation, 605 Suwanee Street, MS 58, Haydon Burns Building, Tallahassee, FL 32399-0450. The documents were received by Ms. Parker who delivered the requests for hearing to the Clerk and they were stamped in by the Clerk of Agency Proceedings on that same date. The Clerk of Agency Proceedings' function is to docket and maintain a record of documents and to send a copy of any requests for hearing in contractor suspension cases to the legal section and to Jimmy Lairscey. The Department's standard procedure after receipt of requests for hearing and contract time extension is to have the documents reviewed by Jimmy Lairscey and the Project Resident Engineer to determine whether the time extension should be granted. The legal section then determines whether to send the matter to the Division of Administrative Hearings. The Department's purpose in soliciting a request for contract time extension in conjunction with its Notice of Intent to Suspend is to afford the contractor the opportunity to cure the delinquency. The Department, prior to taking action on the request for hearing, reviews the time extension request to determine whether it may obviate the need for further delinquency proceedings. The Department's Resident Engineers are primarily responsible for evaluating and making recommendations concerning time extension requests. It is generally after the Department makes a determination concerning the appropriateness of the request for contract time that it proceeds to act upon the request for hearing. The Department did not deny White's request for contract time extension until August 30, 1993, the same date that White's requests for hearing were docketed in by the Clerk. The Department's review, analysis and decision can take up to five months. The delay in docketing the requests for hearing did not, therefore, delay the process. There was no prejudice to the Department by White's delivery of its requests for hearing to the Department's Resident Engineers on August 13, 1993, rather than to the Clerk of Agency Proceedings. There was no harm to the Department by Jimmy Lairscey's receipt of White's requests for hearing on Monday August 16, 1993, rather than the Clerk receiving it on Friday, August 13, 1993. The Department was aware, prior to and on August 13, 1993, that White disputed the Department's determination of delinquency on State Project Nos. 97770-3305 and 97770-3306. The Department expected White to file requests for formal hearing challenging the Department's determination of delinquency on State Project No. 97770-3305 and 97770-3306. White had verbally notified the Department prior to August 13 that it was challenging the delinquency notices. No evidence established any prejudice or harm to the Department from the Clerk's receipt of White's requests for hearing on August 30, 1993 rather than August 13, 1993. White will be severely prejudiced if not afforded a hearing, and therefore automatically declared delinquent, because it will be precluded from bidding and acquiring much needed additional work. White's work is primarily for the Department, in all phases of highway construction. At the time of hearing White had Department contracts of approximately $100 million, which contracts carry over a several year period, and it employed approximately 500 people. No culpability or blame can be ascribed to either party in the series of gaffes surrounding the filing of White's requests for hearing. Mr. Keen, a novice to the process, thought he was doing the right thing by assuring timely filing with the Resident Engineers, who had always received other correspondence related to the Project. Mr. Daniel, who was immediately informed that the original documents were filed in the wrong place, did nothing to correct the error, but neither did he deliberately frustrate the process (as argued by White) since the message he received about some original legal documents was ambiguous. Mr. Lairscey had no idea that his packet was intended for the Agency Clerk; moreover, he had no idea who the agency clerk was. Under these circumstances, and in the absence of any more than mere inconvenience to the Department, it is patently unfair to deny White its hearing on the merits.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED that the Department enter its final order granting a formal hearing to White Construction Co., Inc. on the substantive issue of whether it should lose its qualification to bid. DONE AND ENTERED this 29th day of August, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 29th day of August, 1994. APPENDIX The following constitutes specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in paragraph 1. - 4. Adopted in substance in paragraph 2; otherwise rejected as unnecessary and immaterial. Adopted in part in paragraph 10; otherwise rejected as unnecessary. Adopted in substance in paragraph 4. Adopted in paragraph 30. Adopted in paragraph 4. Except as to the conclusion that the notice was not filed with the clerk on August 13, rejected as contrary to the greater weight of evidence, considering the testimony of Keen in its entirety. Adopted in substance in paragraphs 5, 8, 9, 10 and 12. Rejected as argument and conjective unsupported by the weight of evidence. Adopted in substance in paragraph 5. Adopted in part in paragraphs 6-9, otherwise rejected as immaterial. Adopted in part in paragraph 9; otherwise rejected as statement of testimony or unnecessary. Adopted in substance in paragraph 13. 16.-18. Adopted in paragraphs 14 and 19; otherwise rejected as unnecessary. Adopted in paragraph 21. Adopted in substance in paragraph 22. Adopted in substance in paragraph 16; otherwise rejected as unnecessary. Adopted in substance in paragraph 18. Adopted in substance in paragraph 20. Adopted in part in paragraphs 23-26; otherwise rejected as unnecessary. Adopted in substance in paragraphs 27 and 29. Rejected as contrary to the weight of evidence. 27.-28. Adopted in part in paragraph 36; otherwise rejected as argument or unnecessary. White clearly proved it will be severely prejudiced, even if it is not "put out of business". 29. Rejected as contrary to the weight of evidence (as to prejudice to the agency). 30.-31. Rejected as unnecessary. 32. Rejected as contrary to the weight of evidence; more commonly, the agency rules on the extension request first. Respondent's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 14. Adopted in paragraph 15. Adopted in paragraph 16. Adopted in substance in paragraph 17. Rejected as unnecessary. 19. Adopted in paragraph 18. 20. Adopted in paragraph 19. 21.-22. Adopted in substance in paragraph 20. 23. Adopted in paragraph 21. 24. Adopted in paragraph 22. 25. Adopted in paragraph 23. 26. Adopted in paragraph 24. 27. Adopted in substance in paragraph 25. 28. Adopted in paragraph 26. 29. Adopted in paragraph 27. 30. Adopted in paragraph 28. Rejected as unnecessary. Adopted in paragraph 29. Adopted in part in paragraph 30; otherwise rejected as contrary to the weight of evidence (as to being a "paper shuffler"). 34.-38. Adopted in paragraph 31. 39.-40. Adopted in paragraph 32. 41.-42. Adopted in paragraph 33. Adopted in paragraph 34. Adopted in paragraph 35. Adopted in paragraph 36, except that the implication that the company will absolutely go out of business is rejected as unsupported by the evidence. Rejected as unnecessary. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwanee Street Tallahassee, Florida 32399-0458 Joseph W. Lawrence, II, Esquire Cummings, Lawrence and Vezina, P.A. 1600 S.E. 17th Street, Suite 304 Fort Lauderdale, Florida 33316 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0450
