Findings Of Fact At all times pertinent to the issues herein, the Florida Department of Transportation was the state agency responsible for enforcing the statutes involving commercial carrier vehicle weights on covered vehicles operated on the streets and highways of this state. It does so through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to conduct random safety and compliance inspections of commercial vehicles being operated in this state. On November 14, 1991, Officer Joseph Borras stopped a 1985 Chevrolet truck, owned by the Respondent, LaCroix, on State Road 702 in Palm Beach County, for a routine inspection. Officer Borras requested the driver to produce his driver's license and the registration slip for the vehicle. This registration slip, which was to expire on December 31, 1991, reflected the weight/length of the vehicle as 7860 pounds and the gross vehicle weight/load, (GVW/LOD) as 7860 pounds also. Since the GWV/LOD weight, (that prescribed by statute for use in these situations) was 7860 pounds, the weight used as legal weight for assessing penalty was 7,999 pounds. Officer Borras then weighed the vehicle at the scene utilizing a set of recently calibrated Department-owned scales, using the standard weight procedures. This weighing of Respondent's vehicle at that time showed it to weigh, loaded, 12,800 pounds. When the 7,999 pound maximum legal weight was subtracted from the actual weight, Respondent's truck was seen to be 4,801 pounds overweight. That excess, taxed at 5 per pound, resulted in a civil penalty of $240.05. This sum was paid by the Respondent by check at the scene. Officer Borras, who was described by the Respondent as being very polite and cooperative at all times, listened to the Respondent's protestations to the effect that the GVW/LOD figure on the registration slip was obviously in error since it was the same as the empty weight of the vehicle, but had no options in the matter. He is mandated to go by the GVW/LOD figure which appears on the registration slip. It is the responsibility of the vehicle's owner to insure that the GVW/LOD figure which appears on the registration slip is correct. Here, Respondent failed to do this, effecting re-registration of the vehicle by mail on December 31, 1990. The registration slip for the prior year, it is noted, also reflected 7,860 pounds as the GVW/LOD. In 1989 it was 10,500 pounds with a weight/length of 7,860 pounds. In 1992, both weight/length and GVW/LOD limits for this same truck were raised to 14,999 pounds. Clearly, the weight/length figure is in error on that form as well. Mr. LaCroix, after the truck was cited and released, proceeded to the city dump, his intended destination, where, prior to dumping, his vehicle was weighed to determine the dump charge. No evidence was produced on the issue of the reliability of those scales. They reflected, however, a loaded vehicle weight of 11,940 pounds, and an empty weight of 8,000 pounds. Because of the unknown reliability of the dump scales and the certified accuracy of the Department's portable scales, the weight determined by Officer Borras is accepted as correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered imposing a civil fine of $240.05 on the Respondent, LaCroix Construction Company, Inc. RECOMMENDED this 20th day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: ARNOLD H. POLLOCK, 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 20th day of July, 1992. Vernon L. Whittier Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. - 58 Tallahassee, Florida 32399-0458 Ronald C. LaCroix President LaCroix Construction Company, Inc. 5900 Biscayne Drive Lake Worth, Florida 33463 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Bldg. Tallahassee, Florida 32399-0458
The Issue Whether Petitioner's request for arbitration by the Florida New Motor Vehicle Arbitration Board pursuant to Chapter 681, Florida Statutes, should be denied on the ground that the request was not timely filed with the Department of Agriculture and Consumer Services, Division of Consumer Services (hereinafter referred to as the "Department")?
Findings Of Fact Based upon the evidence adduced at hearing, the factual stipulations into which the parties have entered, and the record as a whole, the following Findings of Fact are made: Petitioner purchased the motor vehicle that is the subject of the instant controversy, a 1991 Mitsubishi Eclipse, on May 23, 1991, from King Mitsubishi, a Mitsubishi dealership located in Lighthouse Point, Florida (hereinafter referred to as the "Dealership"). Various problems developed with the vehicle which Petitioner reported to the Dealership, but the Dealership was unable to rectify within 18 months of the date of purchase. During this 18-month time frame Petitioner drove the vehicle less than 24,000 miles. Several of the problems that Petitioner reported during the first 18 months of her ownership of the vehicle still persist today. In June or July of 1993, Petitioner began considering the possibility of seeking arbitration under the State of Florida's "Lemon Law." To find out more about her rights, she obtained from a friend, and reviewed, a Florida state government publication on the "Lemon Law." In September of 1993, Petitioner sent a completed Motor Vehicle Defect Notification form to the Dealership requesting that it "make a final attempt to correct the . . . reported . . defects." On November 12, 1993, Petitioner brought the vehicle to the Dealership for such repairs to be made. When she picked up the vehicle five days later, she discovered that the defects she had reported had not been remedied. Dissatisfied with these results, Petitioner telephoned the Department and asked to be sent a Request for Arbitration form. She received the form on November 29, 1993. Petitioner then proceeded to gather the documentation that she needed to fill out the form. After gathering this documentation, Petitioner telephoned the Department a second time because she had some questions regarding certain items on the form. Her questions having been answered by the Department representative to whom she spoke, Petitioner completed the form and, on December 2, 1993, mailed the completed form to the Department. The Department received the completed form on December 6, 1993. At no time did Petitioner, a layperson acting without the benefit of legal counsel, ever intend to forfeit her right to request arbitration under Chapter 681, Florida Statutes. She was not under the impression, nor did the Department representatives to whom she spoke give her reason to believe, that if she failed to file her request for arbitration on or before November 23, 1993, her inaction would be deemed a waiver of her right to request arbitration under Chapter 681, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding Petitioner's request for arbitration to have been timely filed and therefore not subject to dismissal on the ground of untimely filing. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of May, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-0755 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their post-hearing submittals: Petitioner's Proposed Findings Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted and incorporated in substance. 4-5. Rejected as findings of fact because they are more in the nature of conclusions of law. 6-7. Accepted and incorporated in substance. Rejected as a finding of fact because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact based upon such evidence. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. The Department's Proposed Findings 1-4. Accepted and incorporated in substance COPIES FURNISHED: Robert Feldman, Esquire Berman & Feldman 2424 Northeast 22nd Street Pompano Beach, Florida 33062-3099 Barbara Edwards, Esquire Department of Agriculture and Consumer Services 515 Mayo Building 2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32399-0800 Honorable Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue in this case is whether Florida Virtual School's intended decision to award a contract, challenged by All Florida Safety Institute, LLC, is contrary to Florida Virtual School's governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Florida Virtual was created by statute to develop and deliver online distance learning in the State of Florida. § 1002.37, Fla. Stat. Florida Virtual is governed by a board of trustees appointed by the Governor. § 1002.37(2), Fla. Stat. Florida Virtual issued the RFP on October 14, 2019, seeking responses from qualified proposers interested in providing hands-on, "Behind the 1 On April 20, 2020, Petitioner filed exceptions to the proposed recommended orders submitted by the other parties. These exceptions were filed at DOAH, before the Recommended Order was issued. Exceptions to proposed recommended orders are not authorized by statute or rule and have not been considered. Wheel" driver education courses to Florida Virtual's driver education students. Florida Virtual received proposals from two qualified vendors, All Florida and United Safety Council, the current Behind the Wheel course provider. The RFP established the following scoring criteria: Criteria No. Step 1: Main Criteria Description Weight 1. Compliance 10% 2. Qualifications, Experience of Team Members and References 24% 3. Contractor Methodology 20% 4. Demonstrated Ability to Meet or Exceed Stated Requirements and Responses to Questionnaire 25% 5. Price Proposal 20% 6. Acceptance of Invoice Payments via FLVS Visa Purchasing Card 1% TOTAL 100% The six categories were to be scored using a 1 to 20 scale. The contract was to be awarded to the respondent that received the highest total weighted score. The RFP required that the proposals be scored by the Proposal Evaluation Committee (Committee). Florida Virtual appointed four of its employees to serve on the Committee: Debbie Adams, the instructional leader over Florida Virtual's driver education program; Janet Conway, an accounting manager; Martin Kelly, the senior director of curriculum development; and Kevin Locke, the director of project management. On November 14, 2019, the Committee met at a public meeting to score the proposals. The meeting was audio-recorded. Ms. Conway, Mr. Kelly, and Mr. Locke were physically present at the meeting. Ms. Adams attended the meeting remotely with an audio connection. Karen Stolarenko is Florida Virtual's senior solicitation specialist. Ms. Stolarenko and her supervisor, Nathaniel Askew, facilitated the Committee's deliberation at the public meeting as representatives of Florida Virtual's procurement department. One or more representatives of United Safety Council attended the public meeting and observed the Committee's deliberations. All Florida was aware of the public meeting but did not send a representative to attend. The proposals were provided to the Committee before the meeting for review, but the scoring was done at the public meeting. The evaluators' individual scores were tabulated at the conclusion of the public meeting. Ms. Adams gave All Florida the highest weighted score, but the other three evaluators all gave United Safety Council the highest weighted score. United Safety Council had the higher total weighted score of 72.40, compared to All Florida's total weighted score of 70.48. At the conclusion of the public meeting, the Committee voted unanimously to award the contract to United Safety Council as the respondent receiving the highest total weighted score. PROTEST GROUNDS Class A v. Class E License Requirements for Instructors Section A.2(1) of the RFP includes the following minimum requirement for instructors: Class A license with a refresher every five (5) years or retest required as a result of passing examinations and road test approved by Bureau of Driver Education prior to issuance of certificate. Must possess 3 years of experience with a Class A CDL and no conviction on record within the last five years in order to be qualified. A Class A license is a commercial driver's license that is unrelated to the driver education course sought by the RFP. Although there was no testimony directly on point, Florida Virtual essentially conceded that the RFP's reference to a Class A license was an error. All Florida did not protest the RFP's Class A license requirements after the RFP was issued, to argue those requirements make no sense for the services sought by the RFP. Instead, it committed in its proposal to meet all qualifications for a Class E license, the license sought by students who attend the Behind the Wheel driver education course. While this is a logical response to what appears to be an error in the RFP, it was risky because it did not comply with the letter of the RFP. United Safety Council took the safe route, responding by confirming that its instructors would meet the requirements of section A.2(1). At the public meeting, before the proposals were scored, Ms. Adams (the instruction leader for Florida Virtual's driver education program) told the other evaluators that a Class A license was inapplicable to the course services sought in the RFP. No evidence was presented to prove that any evaluator scored All Florida lower because it committed to meet Class E—as opposed to Class A—license requirements for instructors. Committee's Deliberation at the Public Meeting At the conclusion of the public meeting, the evaluators were allowed to take a break and move around the room while their scores were handed to Ms. Stolarenko to be tabulated. The break was approximately 20 minutes long. This break was not recorded, but was not required to be under any governing statute, rule, policy, or RFP specification. Following this break to tabulate the scores, there was an interruption of the recording of the meeting. When the audio recording resumed, Ms. Stolarenko can be heard stating: This is Karen Stolarenko, November 14th 2019, 3:24 p.m. We are reconvening to go over the scores and rankings for the Behind the Wheel Driver Education RFP. Our network went down, and we did have our prior recording interrupted. So there will be two separate recording sessions for today's meeting. I'll do a quick—since we did have an interruption just do a quick roll call so everybody knows who is in the room. Thereafter, the evaluators can be heard on the audio recording confirming their unanimous recommendation to award the contract to United Safety Council as the highest-ranked respondent, a decision consistent with the tabulation of the evaluators' score sheets and the RFP's award specifications. There is no evidence that the interruption in the audio recording was intentional or in bad faith, or that it violated any governing statute, rule, policy, or specification of the RFP. The meeting was public; there is no evidence that anyone was excluded from this portion of the meeting. All Florida could have sent one or more representatives to attend the meeting but chose not to. Corrections to Evaluator Scoresheets The evaluators were provided individual scoresheets to record their scores. The evaluators who attended the meeting in person—Mr. Locke, Mr. Kelly, and Ms. Conway—were provided paper scoresheets and pens to handwrite their scores. Ms. Adams, who attended the meeting remotely, was provided a digital scoresheet and typed her scores. Mr. Kelly's scoresheet included two scores that were scratched out and rewritten. Under the category labeled "Compliance," Mr. Kelly's final rewritten score for All Florida was 19. Under the same category for United Safety Council, Mr. Kelly's final, rewritten score was 18. Mr. Kelly testified that he scratched out his original scores and replaced them with the rewritten final numbers listed above. He further testified that he could not recall why he scratched out the original scores before turning in his scorecard to Ms. Stolarenko other than that he changed his mind. Mr. Kelly's testimony was credible and is accepted here. Ms. Conway testified that she initially erred in the manner in which she scored the proposals; that is, she assigned scores based upon the total weight instead of using the 1 to 20 scale she should have applied to score the respondents for each of the six categories. For example, the "Compliance" category was weighted 10 percent, and Ms. Conway mistakenly applied a 1 to 10 scale (instead of a 1 to 20 scale) when initially scoring this category. She made the same mistake for both respondents. Ms. Stolarenko brought this error to Ms. Conway's attention when she handed in her scoresheet for tabulation at the public meeting. Ms. Conway testified that she corrected the error in her scoresheets without changing the intent behind her original scoring. Two of the categories required no alteration, because they were weighted 20 percent, and Ms. Conway therefore applied the correct 1 to 20 scale when she originally scored those categories. Ms. Conway's testimony was credible and is accepted here. Ms. Conway did not change the intent behind her original scores when she corrected her scores to apply the correct 1 to 20 scale, and this correction did not disadvantage All Florida or provide a competitive advantage to United Safety Council in any way. In fact, Ms. Conway's correction to her score sheet was required to comply with the RFP's specifications on the evaluation of responses. Evaluator Comment Regarding Tesla Fleet All Florida committed to include new Tesla vehicles in its fleet for the Behind the Wheel student drivers' use. When this commitment was discussed by the Committee, Evaluator Mr. Kelly can be heard on the audio recording making a statement that sounds like "[w]hat a bunch of idiots." All Florida argues that this comment shows bias against it and that it caused the other evaluators to view its proposal through a negative lens. That was not proven here. Mr. Kelly testified that he did not recall making the "idiots" comment, but that it sounds like something he might have said because he recalled thinking it was "silly to give those types of cars, that are quite expensive," to student drivers.2 Mr. Kelly went on to testify that his opinion regarding All Florida's Tesla commitment had no bearing on his scoring. Mr. Kelly's testimony was credible and is accepted. Although Mr. Kelly could have chosen better words to express himself, the use of the term "idiots" in this context does not suggest that he was biased. The other evaluators denied hearing Mr. Kelly's "idiots" comment; there is no evidence that this comment influenced any of the scores the other evaluators assigned to All Florida. Qualification and Experience Scores All Florida contends that the evaluators failed to consider the "real numbers" of teen drivers served by All Florida as compared to those served by United Safety Council when they scored the respondents in the category for "Qualifications, Experience of Team Members and References." All Florida offered no evidence to support this protest ground. The evaluators testified at the final hearing but were not questioned on this issue. United Safety Council failed to prove that the scores assigned by the evaluators for "Qualifications, Experience of Team Members and References" were arbitrary or capricious. United Safety Council's Proposal Irregularities Section B.1 of the RFP, entitled "Respondent Questionnaire," contains 14 questions the respondents were instructed to answer in their proposals. United Safety Council's proposal included answers to questions 1 through 5 but omitted the answers to questions 6 through 14. All Florida's proposal included answers to the entire questionnaire. United Safety Council's omission caught Ms. Stolarenko's attention; at the public meeting, she advised the evaluators that United Safety Council 2 The audio recording of this comment from Mr. Kelly is very faint and difficult to hear. But given Mr. Kelly's testimony that it "sounds like something he might have said," the inference is that he did make the "idiots" comment. failed to answer questions 6 through 14. Most, but not all, of the information answering questions 6 through 14 can be found elsewhere in United Safety Council's proposal. Ms. Stolarenko correctly advised the evaluators that they were to score United Safety Council's proposal based on the information contained in its proposal. The RFP required the respondents to consecutively number all pages of the proposal. United Safety Council did not consecutively number all pages of the proposal. All Florida does not allege that United Safety Council's proposal should have been deemed non-responsive—and thus ineligible for a contract award—due to these proposal irregularities.3 Instead, All Florida alleges that it should have received a higher score because its proposal did not contain the same deficiencies. All Florida failed to prove that the evaluators' scores were arbitrary or capricious because United Safety Council received overall higher weighted scores, notwithstanding these two irregularities in its proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Florida Virtual School dismissing the protest of All Florida Safety Institute, LLC. DONE AND ENTERED this 4th day of May, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN 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 4th day of May, 2020. COPIES FURNISHED: David Jeffrey D'Agata, General Counsel Florida Virtual School 2145 Metrocenter Boulevard, Suite 100 Orlando, Florida 32835 (eServed) Samuel P. Garrison, Esquire Bradley, Garrison & Komando, P.A. 1279 Kingsley Avenue Orange Park, Florida 32073-4603 (eServed) Jessica Beecham, Board Clerk Florida Virtual School 2145 Metrocenter Boulevard, Suite 100 Orlando, Florida 32835 Keith A. Graham, Esquire Marchena & Graham, P.A. 976 Lake Baldwin Lane, Suite 101 Orlando, Florida 32814 (eServed) Shannan Collier Stalvey, Esquire The Law Office of Shannan S. Collier, P.C. 100 Galleria Parkway Atlanta, Georgia 30339 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Dr. Barbara M. Jenkins, Superintendent Orange County School Board 445 West Amelia Street Orlando, Florida 32801-0271
Findings Of Fact The facts reveal that Jose Gonzalez, a driver for the Respondent, operating one of Respondent's tractor/trailer pieces of Respondent, went to a rock company located in Hollywood, Florida, on February 13, 1978, for the purpose of picking up a load of "P" rock. This rock was purchased from Miramar Lakes, d/b/a Miramar Rock on that date and the driver, Gonzalez, was given a weight ticket. The weight ticket from Miramar Rock reflected a gross weight of 72,360 pounds, which is the total of the equipment and load. (The scales at Miramar peck used to weigh the Respondent's equipment and load had been certified by the Petitioner to be accurate on June 7, 1977, and again on April 11, 1978.) The weather on February 13, 1978, was clear and the purchase, loading and weighing done on the subject equipment was without incident, until the driver attempted to pull away from the weight scales. At that moment the universal joint and yoke snapped and this caused the vehicle to be inoperable. Gonzalez left the truck at the Miramar Rock Company. At that point, the load was covered by a canvas and the trailer was not seeping or leaking water from the rock aggregate. Later, on February 13, 1978, a mechanic employed by the Respondent came to effect repairs to the vehicle, but due to the unavailability of certain parts necessary to complete the repairs, did not finish the work until February 14, 1978. When the repairs had been completed on that date, the driver, Gonzalez, removed the truck from the Miramar Rock compound and entered the roads of Broward County, Florida. At around 9:15 a.m. on February 14, 1978, Gonzalez arrived at the intersection of Hollywood Boulevard and Flamingo Road in Broward County, Florida, eastbound on Hollywood Boulevard. At that intersection, officers employed by the Florida Highway Patrol, Weights Division, intercepted the Des Rocher truck and caused the vehicle to stop. After the stop the equipment being operated at that time was established to be a vehicle measuring between 37 feet to 38 feet from the front axle to the rear axle, and the peak of the rock load was located in the center rear portion of the trailer. Officer Wilkerson of the Florida Highway Patrol observed water dripping out of the rear tailgate after making the stop. Gonzalez was asked to produce a weight ticket and in response to this request produced the weight ticket given him by Miramar Rock on February 13, 1978. Officer Wilkerson commented that this ticket was from the day before and that a ticket bearing the current date was required. Gonzalez was then told that the truck would be weighed with the method for weighing the truck being by two portable scales. Officer Wilkerson weighed one side of the truck and Officer Herron went to the other side of the truck. Wilkerson weighed the steering axle on his side of the truck; the drive axle on his side of the truck, and two tires on the rear tandem axles on his side of the truck. It is not known what Officer Herron did, if anything, in effecting the purposes of this inspection and weigh-in, because Officer Herron did not appear at the hearing in this cause and was not seen by Officer Wilkerson in conducting his inspection activities, if any. Therefore, the total weight of the truck as ascertained from the inspection ostensibly conducted by these officers was not shown by competent evidence. However, it was demonstrated through the testimony in this hearing that the plan which the officers had for making the roadside inspections was one which called for basically stopping all trucks of the category of aggregate haulers that were eastbound through the intersection on Hollywood Boulevard, to the exclusion of pickup trucks and moving vans. After stopping the former category of trucks, some were weighed and others were not. As a result of the stop, Gonzalez was ticketed for a weight violation and that ticket was in the amount of $136.45 as an assessed penalty. Gonzalez then took the truck back to the Des Rocher installation which contained a set of scales and between 10:15 a.m. and 10:30 a.m. the truck was weighed and shown to be 35.64 tons, or 71,280 pounds as the gross weight including the equipment and load. (The scales that were utilized had been certified by the Petitioner on June 7, 1977, and again on May 8, 1978.)
The Issue The issue posed for decision herein is whether or not the Respondent/Licensee, David H. Trump d/b/a Swain Builders, Inc., has engaged in conduct which will be set forth hereinafter which warrants the Florida Construction Industry Licensing Board to discipline the Licensee and to impose an administrative fine.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint mailed December 3, 1979, the Florida Construction Industry Licensing Board (herein referred to as the Board or Petitioner) seeks to revoke Respondent's contractor's license; to impose an administrative fine in the amount of $1,000.00 and to deny reissuance of Respondent's license until sufficient proof of restitution has been provided the Board. 1/ David H. Trump (herein sometimes referred to as Licensee or Respondent) d/b/a Swain Builders, Inc., is a registered General Contractor who holds license No. RGS 003574, which is current and active. The remaining material allegations of the Administrative Complaint are that from June 8, 1979, Respondent contracted with F. O. Parman to construct an addition to an existing structure for $70,500.00. It is alleged that Respondent, after having received $50,000.00 of the contracted price, came under scrutiny when owner Parman determined that contractors and suppliers were not being paid. As a result, Respondent allegedly made a sworn statement to the effect that "all subcontractors and suppliers had been paid, when in fact they had not been paid". It is also alleged that Respondent subcontracted a heating and air conditioning installation to Air Systems, Inc., for $9,610.00 and Respondent failed to pay for this installation even though he received money from the owner, Dean Waters, It was also alleged in the Administrative Complaint that Respondent was charged with perjury by the State Attorney's office for issuing false statements under oath and that he pleaded nolo contendere to the charges, adjudication of guilt was withheld and Respondent was placed on two years probation to allow him an opportunity to reimburse the victim. 2/ On June 8, 1979, Respondent entered into a contract with F. O. Parman to construct an addition to an existing structure, Big Chief Tire Company, situated at 5444 Normandy Boulevard, Jacksonville, Florida, for the sum or $70,500.00 plus an additional $1,000.00 for a bathroom (Petitioner's Exhibit 1). 3/ To complete this project, Respondent purchased concrete from Silcox Concrete Company during approximately August of 1978 which resulted in an outstanding obligation of $2,067.30. This obligation remained unpaid as of December 2, 1978. Ralph Silcox, the President of Silcox Concrete Company contacted the owner of Big Chief Tire Company, Mr. F. Parman, who agreed to pay approximately 80 percent of the invoiced amount, i.e. , $1,724.20. As a result of this agreement Mr. Parman was not obligated to honor additional claims from Silcox Concrete Company. 4/ Mr. Richard Q. Parman, President of Big Chief Tire Company, appeared at the hearing and related that after having released approximately $50,000.00 to Respondent, further disbursements were withheld based on complaints of various subcontractors including a Mr. Felder, the subcontractor for the heating and air conditioning system for the Big Chief Tire project. At that juncture, Mr. Parman had escrowed approximately $20,000.00 due Respondent for the completion of the project. Mr. Parman insisted that Respondent prepare a list of subcontractors and materialmen who had supplied materials for this project. According to that list, Respondent owed subcontractors and materialmen approximately $24,000.00. Mr. Parman and his son prepared the statement, which was signed, notarized and witnessed (Petitioner's Exhibit 2). The Parmans later discovered that Respondent failed to list Fab-All Metals, the entity which had supplied the steel and miscellaneous metals for completion of the Big Chief Tire project. The Parmans paid Richard G. Hornsbrook, the President of Fab-All Metals, approximately $2,500.00 which represented 80 percent of the amount due Mr. Hornsbrook for metals and steel furnished for the Big Chief Tire project. Thereafter, on January 12, 1979, Mr. Hornsbrook received $300.00 from Respondent based on a settlement agreement Respondent and Mr. Hornsbrook entered to pay the remaining balance due of approximately $623.84. (Petitioner's Exhibit 3) John S. Felder, the President of Air Systems of Florida, Inc., supplied two air conditioning and heating systems for the Big Chief Tire project. Mr. Felder received approximately 80 percent of the amount due him from Mr. Parman, the owner of Big Chief Tire Company. Respondent advised Mr. Felder that the money due him would be paid when the building was completed. Respondent is a registered General Contractor who has been in the contracting business for approximately twenty-two (22) years. Swain Builders, Inc., the entity through which the Respondent was conducting his contracting business, has been defunct since December of 1978. Since that time, Respondent has been self employed primarily doing odd jobs trying to repay cost overruns from another project, the Dean Waters job, which was for a total contracted price of $90,000.00. Respondent incurred cost overruns of approximately $22,000.00 on the Dean Waters project. Respondent did not receive any draws for the Air Systems work on the Dean Waters project. Monies for that work was withheld by the owner, Dean Waters. Respondent failed to recognize that Fab-All Metals was left from the list of contractors provided to Mr. Parman. Mr. Parman prepared the statements which appear on the list of contractors provided by Respondent. Respondent is paying Parman restitution for payments he made to Fab-All Metals. An examination of the list of contractors and materialmen indicates that the list is headed by the words, "Bills Unpaid at Big Chief Tire Co." which is followed by a list of contractors and an amount represented as being de and owing of approximately $23,678.26. Thereafter, there is an affirmation which provides in pertinent part: " the above listed company's(sic) and the amounts designated. is a complete list of all the companies who have extended credit to Swain Builders, Inc. for building materials and labor for the construction of the building. location of Bib(sic) Chief Tire Co. Inc. and have not been paid in full." (Emphasis supplied) The material allegation of the Administrative Complaint is set forth in paragraph 1(f): "That David H. Trump made a sworn statement to the effect that all subcontractors and suppliers had. been paid when in fact they had not been paid". At the outset, it should be noted that Respondent acknowledged that he failed to recognize that Fab-All Metals was left off the list of contractors prepared for Mr. Parman. Respondent acknowledges the fact that an amount is due and owing Fab-All Metals, which amount he is presently making restitution to Mr. Parman. However, the sworn statement does not indicate that all subcontractors and suppliers had been paid when in fact they had not, but rather, is a list of bills unpaid. That language which was prepared by Mr. Parman is set forth at the beginning of the paragraph and is again cited in the last sentence which provides, ". and have not been paid in full".
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent pay an administrative fine of Five Hundred Dollars ($500.00). RECOMMENDED this 20th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1980.
Findings Of Fact On or about September 11, 1989, a commercial, dump truck owned by Petitioner, Alamazan Brothers Trucking, Inc., was travelling on State Road 807. Mr. Michael Roberts, Safety and Hazardous Materials Officer for Respondent, Department of Transportation, noticed that the truck did not have the required identification on the door and stopped the truck for further investigation. After the truck stopped, Mr. Roberts noted that the truck possessed an expired temporary license tag, and the driver did not have a valid registration for the truck. Mr. Roberts, then, weighed the truck with his portable scale and calculated a gross weight of 65,900 pounds. Mr. Roberts gave the driver the opportunity to contact the owner of the truck about the registration and, in accordance with policy of the Department, allowed the owner over one hour to produce a valid registration. A representative of the owner appeared and showed Mr. Roberts a duplicate registration certificate purchased the same day as the incident which indicated that the authorized gross weight for the truck was 24,680 pounds. Mr. Roberts made the determination that the registration was not valid at the time of the stop and imposed a fine for overweight of $1,545. The fine was calculated for the amount of the gross weight in excess of 35,000 pounds times five cents per pound. Existent law establishes that, for the purposes of calculation of a penalty such as the one at issue, the authorized gross weight for an unregistered vehicle is 35,000 pounds. An additional $50 was imposed as the fine for not having the required identification on the door of the truck. The total penalty of $1,595 was paid under protest. However, Petitioner did, in fact, have a valid registration on the day of the stbp. Through administrative delay, the registration certificate had not been mailed to Petitioner. On or around September 7, 1989, Petitioner purchased the truck and a temporary tag was issued to Petitioner by the dealer from which he purchased the truck. At that time, an application for registration was made to the Department of Highway Safety and Motor Vehicles. The application was for a registration authorizing a gross weight of 64,000 pounds. Petitioner had not received the permanent tag or registration by the date the stop occurred. After Petitioner was alerted at the stop, Petitioner obtained a duplicate registration within the time allotted to him by Respondent. This duplicate, the one shown to Mr. Roberts on the day of the stop, indicated an authorized gross weight of 24,680 pounds, an obvious typographical error. The gross weight did not match the gross weight applied for, instead, it duplicated the amount of the empty weight into the gross weight category. On September 13, 1989, Petitioner returned the form to the issuer and requested a corrected duplicate registration. The second duplicate also was in error. This time the form indicated the correct gross weight of 64,000 pounds, but, also, repeated that gross weight amount in the empty weight category. At the hearing, Petitioner also presented the application for registration which indicated it had applied for and was taxed for a gross weight of 64,000 pounds. It was only due to administrative delay that the correct registration was not presented at the time of the stop. However, no competent evidence was received which indicated that the truck did possess the required identification on the door, and Mr. Robert's testimony about the lack of such identification is deemed credible. Although the correct gross weight for which Petitioner is licensed is 64,000, his load at the time of the stop was 65,900 or 1,900 in excess of his 64,000 pound authorized amount. At five cents a pound his penalty for overweight should be $95.00 and not $1,545.00. The $95.00 plus the $50.00 for the failure to display the required identification yields a corrected fee of $145.00 and a refund due to Petitioner of $1,400.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation issue a Final Order correcting the fine imposed on Petitioner, establishing the appropriate fine at $145.00 and refunding $1,400 to Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990. JANE C. HAYMAN 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 5th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2088 The following represents the rulings on the proposed findings of fact submitted by the parties. The rulings are by paragraph within the proposed findings of fact and indicate the paragraph in the findings of fact portion of the attached recommended order which addresses the proposed finding of fact, if deemed appropriate. RESPONDENT Adopted in relevant part in paragraphs 1,2 and 3. Adopted in relevant part in paragraphs 4,5 and 9. Adopted in relevant part in paragraphs 6,7,8 and 10. COPIES FURNISHED: Dewey H. Varner, Esquire Varner, Cole & Seaman 2601 Tenth Avenue, North, Suite 410 Lake Worth, Florida 33461 Vernon T. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scanlan Interim General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issues concern the question of whether the Petitioner is entitled to impose a $1,660.00 assessment against Respondent for operating a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On October 21, 1991, Respondent's commercial vehicle was inspected at the Petitioner's Yulee weight station located on Interstate 95 in Nassau County, Florida. It was discovered that the motor vehicle did not have a Florida registration. Furthermore, the South Carolina registration for the vehicle was not apportioned to allow operation in Florida. As a consequence a penalty was assessed for operating the commercial vehicle in Florida without benefit of an appropriate registration. The actual amount of penalty was $1,660.00 which is reflective of the gross weight of 68,200 pounds at a price of .05 per pound of the amount in excess of 35,000 pounds. Respondent paid the $1,660.00 fine plus the $30 single trip registration fee. This payment was rendered on the date that the commercial vehicle was stopped.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered finding that the $1,660.00 penalty was an appropriate amount to be assessed against the Respondent on October 21, 1991, as envisioned by Section 316.545(2)(b), Florida Statutes, and that the request for refund of that amount be rejected. DONE and ENTERED this 23rd day of June, 1992, in Tallahassee, Florida. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 GayCille Swisher Isley Iron & Metal Company 1691 Lost Mountain Road Powder Springs, GA 30073 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 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 23rd day of June, 1992.
