Findings Of Fact Respondent, Alachua County School Board, advertised a request for proposals for the removal of asbestos from one of its schools. Respondent received several bids from various companies, including Petitioner, Wayne Blackwell and Co., Inc., and Intervenor, International Abatement Management ("IAM"). The specifications for the bid provided: Posting of Bids "Bid tabulations with recommended awards will be posted for review by interested parties at the Planning and Construction Dept. 1817 East University Avenue, Gainesville, Fla. on or about Monday following the bid opening, and will remain posted for a period of 72 hours. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceeding under Chapter 120, Florida Statutes. On September 11, 1989, Respondent opened the bids it had received. Petitioner's representative was present at the bid opening and learned that it had not submitted the lowest bid, but was ranked third according to the bid prices. The Monday following the bid opening was September 17, 1989. On September 14, 1989, at 1:00 p.m., Respondent completed its review of the bids it had received and posted the bid tabulation on its bulletin board. The bid tabulation indicated that Intervenor, ("IAM"), was the winning bidder and Petitioner was the second place winner. The bid tabulation was posted below and slightly to the right was a copy of Section 120.53(5), Florida Statutes, with the notice provisions highlighted. The statutory section was intended to be part of the posting of notice required by Section 120.53(5) and was associated with the bid tabulation proper that if a reasonable person had seen the bulletin board that person would have known the copy of the statute was part of the posting of the bid tabulation. The method of posting utilized by the School Board gave Petitioner a clear point of entry for purposes of this action. On September 17, 1989, the 72 hour period for filing of Notice Of Protests under Chapter 120.53(5), Florida Statutes, expired. On September 18, 1989, the school board voted to award the bid to Intervenor. A contract for the project was mailed to Intervenor for its signature and was later returned to the school board signed by Intervenor. On Thursday, September 20, 1989, Petitioner filed its Notice Of Protest. The Notice Of Protest was filed after the 72 hour period for filing such notices. 1/ Petitioner therefore has waived its right to protest the bid tabulation and awarded the bid to intervenor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Alachua County enter a final order dismissing the protest of Petitioner. DONE and ENTERED this 26th day of December, 1990 in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 26th day of December, 1990.
Findings Of Fact At all times here involved Respondent was licensed by the Florida Insurance Department as a general lines agent to represent Cotton Belt Insurance Company, Inc. and Industrial Fire and Casualty Insurance Co. (Exhibit l). In November, 1977 George Moore, Jr. contacted agent Hopkins to obtain a full coverage policy for his automobile. His previous policy had been cancelled (or would soon be cancelled). The application was filled out by Hopkins and on November 15, 1977 Moore executed the application (Exhibit 2) and gave Hopkins a check as down payment on the premium in the amount of $199.80. This check was negotiated by Hopkins on December 18, 1977. Several weeks later Moore had not received his policy and he asked Hopkins about the delay. Hopkins replied that he (Moore) should have his policy in another two or three weeks. At no time prior to Moore's January 9 automobile accident did Hopkins tell Moore that his application did not include collision coverage or that the application had never been submitted to the carrier. On January 9, 1978 Moore was involved in an automobile accident in which he was the responsible party. Upon informing Hopkins of the accident the latter advised Moore that he was covered. Hopkins later told Moore that he was not covered for collision but he came and took Moore's car to be repaired, stating that the repairs would not have to be paid for by Moore. When Moore contacted Insurance Company of North America (INA) he learned they had no policy covering him. He subsequently had to pay $300 for the repairs to his car. On February 2, 1978 INA received Moore's application from Hopkins with a check for down payment on the premium signed by Hopkins. Because rules of the Florida Joint Underwriters Association require applications be promptly submitted, INA denied Moore's application and so advised Hopkins. In the summer of 1978, Hopkins refunded to Moore the $199.80 payment Moore had made on November 15, 1977. By Order entered 18 January 1973 (Exhibit 4), Respondent was found guilty of six counts involving failure to remit collected premiums to the insurer, and failure to submit applications with premium payments received from clients. As a result thereof he was placed on probation for a period of two years and ordered to make restitution to all parties suffering loss from his unlawful acts.
Findings Of Fact Based upon my observation of witnesses and their demeanor while testifying, documentary evidence received, the parties' joint stipulation of facts and the entire record compiled herein, I hereby make the following relevant factual findings. On May 28, pursuant to approval and authorization by the Federal Highway Administration (FHWA) and pursuant to pertinent provisions of Florida Statutes and Florida Administrative Code, FDOT received sealed bids, one of which was from Petitioner, in response to FDOT's public advertisement soliciting competitive bids for award of the contract for construction of a public works project known as Allapattah H.O.V. Station, a parking structure to be situated at the southeast corner of Northwest 12th Street and Northwest 36th Street in Miami, Florida, designated as FDOT Job Nos. 87270-3414, 87270-3519 and 87085- 3502, and as Federal Aid Project Nos. I-95-I(364)IV, ACIR-95-1(366)4 and M- 6155(2). Prior to solicitation of bids for the project, FDOT submitted plans, specifications and a pre-bid estimate to FHWA for review and approval. FHWA reviewed and approved the plans, specifications and pre-bid estimate for the project, and by separate written communications dated March 17 and April 17, FHWA authorized FDOT to proceed with solicitation of competitive bids for the project. Pursuant to that authorization and approval from FHA, FDOT caused its advertisement soliciting competitive bids for the Allapattah project to be published in newspapers of general circulation throughout the southeast and Atlantic coast states, and, in so doing, classified the Allapattah project as a public works project set aside and restricted to competitive bidding solely among qualified contractors certified as disadvantaged business enterprises. Before Petitioner submitted its bid, FDOT determined that Petitioner is a qualified contractor and certified it as a disadvantaged business enterprise, thus rendering Petitioner eligible to bid for award of the contract to construct the Allapattah project. When FDOT opened the bids it received for award of the contract to construct the Allapattah project on May 28, it was apparent to FDOT that Petitioner's bid of $15,193,048.40 was the lowest responsive bid, but that Petitioner's bid exceeded the pre-bid estimate of the cost to construct the Allapattah project by twenty-one and three tenths percent (21.3 percent). At the time FHWA approved the plans, specifications and pre-bid estimate for the Allapattah project, it was understood and agreed between FHWA and FDOT that if a contract to construct the project was awarded in the amount of the pre-bid estimate, which was $12,523,233,06, FHWA would fund the contract to the extent of $11,647,074.70 and FDOT would fund the contract to the extent of $876,158.36, and that FDOT would also fund the equal employment opportunity training required under the contract at an estimated cost of $200,353.26, thus bringing the total funds planned to be expended by FDOT to $1,076,511.62. FDOT follows a policy that provides for automatic award of the contract to the lowest responsible bidder if [the] bid is within seven percent (7 percent) of the pre-bid estimate of the cost to construct the project in question. If the bid submitted by the lowest responsible bidder exceeds seven percent (7 percent) of the pre-bid estimate of the cost to construct the project, FDOT follows a policy of reviewing that bid and the pre-bid estimate in an effort to account for the disparity between the bid and the pre-bid estimate and to determine whether the bid is or is not competitive. If FDOT finds that the bid is not competitive, it follows a policy of rejecting all bids and resoliciting bids for the project. If FDOT finds that the bid is competitive, it awards the contract to construct the project in question to the bidder who submitted that bid. Because Petitioner's bid was not within seven percent (7 percent) of the pre-bid estimate of the cost to construct the Allapattah project, following the opening of bids, FDOT contacted Petitioner and requested Petitioner to meet at FDOT's offices in Miami, Florida, to review Petitioner's bid. On June 4, representatives of Petitioner met with representatives of FDOT in FDOT's Miami offices, at which time FDOT requested Petitioner to provide FDOT a breakdown of the lump sum Petitioner quoted for the bid item entitled "Parking Garage" whereupon Petitioner did so. The breakdown which Petitioner presented to FDOT at that time showed each category of work involved in constructing the Parking Garage in accord with FDOT's plans and specifications for the project, and also showed the price applicable to each such category of work. Before receiving the above described breakdown, FDOT assured Petitioner that all such information would be held confidential and would not be published or disclosed to any other person. Upon receiving the above described breakdown, FDOT informed Petitioner that the information contained therein was sufficient to enable FDOT to complete its evaluation of Petitioner's bid. Before the meeting concluded, Petitioner informed FDOT that if any additional information was needed, to please let Petitioner know in which event appropriate efforts would be made to remotely provide such additional information to FDOT. On June 16, FDOT's Technical Review Committee and Contracts Award Committee met to decide what action to take respecting the bids it had received on May 28, for award of the contract to construct the Allapattah project. FDOT then decided: (a) to reject all bids, to reclassify the project from one that is set aside and restricted to bidding solely among qualified contractors certified as minority business enterprises to one that is open to competition from all qualified general contractors, and to re-solicit bids for the project, and (b) to request FHWA's concurrence therein. On June 17, Petitioner inquired of FDOT as to what action had been taken respecting award of the contract to construct the Allapattah project and was then informed that the foregoing decisions had been made. Petitioner then asked FDOT why it had decided to reject Petitioner's bid, whereupon FDOT stated that Petitioner's bid was rejected because, when compared with FDOT's pre-bid estimate of the cost of constructing Allapattah project, Petitioner's bid appeared unrealistically high and non-competitive. On June 19, Petitioner, filed with FDOT's clerk of agency proceedings a written notice of protest of FDOT's above described decisions. Such notice of protest was submitted within the required time and is in accord with applicable provisions of Section 120.53(5), Florida Statutes, thus stopping FDOT from taking any further action to implement its above-described decisions. In its notice of protest, Petitioner, also requested of FDOT an early opportunity to informally meet and confer respecting Petitioner's protest in an effort to amicably resolve the same on mutually acceptable terms and conditions. Notwithstanding the fact that FDOT was not to take any further action to implement its above-described decisions, by letter dated June 20, addressed to FHWA, FDOT confirmed its above-described decisions and requested FHWA to concur therewith. On June 27, FHWA expressed its concurrence with FDOT's above- described decisions. On June 30, representatives of FDOT and Petitioner met informally in FDOT's central offices in Tallahassee, Florida, at which time Petitioner presented certain information tending to show that the pre-bid estimate of the cost to construct the Allapattah project was out of date, unrealistically low and that Petitioner's bid was realistic and reasonably competitive. The meeting concluded with an understanding between the parties that FDOT would reconsider its above-described decisions and, pursuant thereto, representatives of FDOT and Petitioner would again meet in FDOT's Miami offices on July 2, to review certain documentation to be presented by Petitioner related to its bid preparation of its May 28, bid. During the July 2 meeting, FDOT asked Petitioner to provide certain additional information documenting Petitioner's preparation of its May 28 bid, whereupon Petitioner did so. As a result of the information presented by Petitioner during the June 30 meeting, FDOT realized that the pre-bid estimate of the cost to construct the Allapattah project, which was initially prepared in October, 1984, by its architectural/engineering consultant, who also designed the project, the Kaiser Transit Group, had not been updated to reflect any increase in costs attributable to inflation. Although FDOT had in February, reviewed its architectural/engineering consultant's October, 1984 estimated cost of construction and made minor adjustments thereto in the process of converting such estimate to the computerized format customarily used by its Estimates Office, FDOT did not address the impact of inflation on the estimate. Thus, following the June 30, meeting with Petitioner, FDOT decided to develop a new estimate for the project, whereupon its Estimates and Architectural Offices jointly undertook the task of considering inflationary impact. The resulting new estimate stated a cost of $14,317,608.00 to construct the project. That cost exceeded the pre-bid estimate that FDOT had used in its initial evaluation of Petitioner's bid by approximately Two Million Dollars, thus bringing Petitioner's bid within seven percent (7 percent) of FDOT's estimated cost to construct the project and causing Petitioner's bid to be subject to FDOT's automatic award criteria. On June 25, FDOT received competitive bids for award of the contract to construct another public works project known as Earlington Heights H.O.V. Station, a parking structure to be situated at Northwest 22nd Avenue and Northwest 41st Street in Miami, Florida, designated as FDOT Job Nos. 87270-3523, 87270- 3490, and 87003-3515, and as Federal Aid Project Nos. I-95-1 (352)4, ACIR-95-1(380)4 and F-030-1(33). The Earlington Heights project was also classified as a public works project set aside and restricted to competitive bidding solely among qualified contractors certified as disadvantaged business enterprises. Petitioner submitted a responsive bid in the amount of $7,449,130.04 for award of the contract to construct the Earlington Heights project, but was the second lowest bidder. The low bidder was a company known as Three-W Corporation which had previously been determined by FDOT to be a qualified contractor and had been previously certified by FOOT as a disadvantaged business enterprise eligible to bid for award of the contract to construct the Earlington Heights project. Three W Corporation's low bid for the Earlington Heights project was $7,080,000.00 and exceeded the pre-bid estimate to the cost to construct the Earlington Heights project by seventeen and three tenths percent (17.3 percent). The pre-bid estimate of the cost to construct the Earlington Heights project was initially prepared in October, 1984, by the Kaiser Transit Group, the same architectural/engineering consultant that designed and prepared the initial pre-bid estimate for the Allapattah project in October, 1984. Before soliciting bids for award of the contract to construct the Earlington Heights project, FDOT reviewed its architectural/engineering consultant's October, 1984, estimate which stated that the cost to construct the Earlington Heights project was $5,481,000.00 and increased the same approximately ten percent (10 percent) to $6,037,298.36 to reflect FDOT's estimate of the extent construction costs had increased as a result of inflation between October, 1984, and June, 1986. When FDOT and Petitioner met on June 30, FDOT was engaged in evaluating Three-W Corporation's low bid for the Earlington Heights project. FDOT then reconsidered Petitioner's low bid for the Allapattah project and found that the low bids submitted for each such project comparable in that Three-W Corporation's low bid established a cost per square foot to construct the Earlington Heights project of $ 23.02 and Petitioner's low bid established a cost per square foot to construct the Allapattah project of $22.40. Because the low bid for the Earlington Heights project also exceeded FDOT pre-bid estimate by more than seven percent (7 percent), FDOT met and conferred with representatives of Three-W Corporation to review certain information related to preparation of the bid it had submitted on June 25, for the Earlington Heights project. FDOT then decided to also develop a new estimate for the Earlington Heights project, and its Estimates and Architectural Offices did so. The resulting new estimate increased FDOT's $6,037,298.36 pre- bid estimate by approximately $1,000,000.00, thus bringing the low bid submitted by Three-W Corporation within seven percent(7 percent) of the estimated costs to construct the Earlington Heights project and causing its bid to be subject to FDOT's automatic award criteria. In successive meetings of FDOT's Technical Review Committee and Contract Awards Committee on July 16, FDOT concluded its evaluation of the low bid for the Earlington Heights project and its reconsideration of its decisions to reject all bids and re-solicit bids for the Allapattah project by deciding that FDOT's pre-bid estimates of the cost to construct both projects were out- of-date, unrealistically low, and not indicative of a reasonably competitive cost to complete either project. Three-W Corporation's bid for the Earlington Heights project and Petitioner's bid for the Allapattah project appeared realistic and indicative of reasonably competitive costs to complete each project. FDOT's decisions in the foregoing respects were confirmed in the minutes of the July 16, meetings of its Technical Review Committee and its Contract Awards Committee, and in letters dated July 18 and July 21, addressed to FHWA, wherein Respondent requested FHWA to concur in FDOT's decisions to award contracts for construction of the Earlington Heights project and the Allapattah project to Three-W Corporation and Petitioner, respectively. On July 22, FDOT was informed by FHWA that it concurred in FDOT's decision to award the contract for construction of the Earlington Heights project to Three-W Corporation, but that it did not concur in FDOT's decision to award the contract for construction of the Allapattah project to Petitioner. In so doing, FHWA stated that it did not concur in FOOT's decision to award the contract for construction of the Allapattah project because the reasons expressed in FDOT's June 30, letter to FHWA requesting it to concur in FDOT's decision to reject all bids and re-solicit bids for the project were more persuasive than the reasons given by Respondent in support of its July 21, decision to award the contract for construction of the Allapattah project to Petitioner. After receiving the July 22, letter from FHWA, FDOT informed Petitioner of what had transpired and stated that on August 18, the results of the May 28, bid opening would be formally posted and published to provide public notice that all bids submitted for award of the contract to construct the Allapattah project had been rejected and that FDOT would re-advertise the project to re-solicit bids. Petitioner then requested FDOT to ask FHWA to reconsider its July 22, decision, but FDOT refused to do so. However, FDOT then suggested that Petitioner was free to request FHWA to reconsider its July 22, decision and that if Petitioner succeeded in persuading FHWA to agree that Petitioner's bid was realistic and to agree to award Petitioner the contract for construction of the subject project, FDOT would do so. On August 18, FDOT posted its notice that all bids submitted on May 28, for award of the contract to construct the Allapattah project were rejected and that it intended to re- solicit bids. On October 1, FDOT discovered that FHWA had not received certain documentation related to FDOT's July 16 decisions to award contracts for construction of the Earlington Heights Project to Three-W Corporation and the Allapattah project to Petitioner. Accordingly, by letter dated October 1, from William F. Ventry, FDOT's Deputy Assistant Secretary for Technical Policies and Engineering Services, to P. E. Carpenter, FHWA's Division Administrator, FDOT provided such documentation to FHWA and formally requested FHWA to reconsider its decision not to concur with FDOT's decision to award the Allapattah contract to Petitioner. By letter dated October 9, from James E. St. John, FHWA's Assistant Division Administrator, to Mr. Ventry, FHWA replied to FDOT's October 1, letter stating its basis for refusing to concur with FDOT's decision to award the contract for construction of the Allapattah project to Petitioner and informed FDOT that FHWA will now deobligate the (federal) funds authorized March 17, (for construction of the project) pending your request for further Federal- aid activity on this project. Upon receiving FHWA's October 9, letter, it became apparent to FDOT that FHWA had misapprehended or overlooked certain critical facts related to FDOT's reconsideration of its decision not to award the contract for construction of the Allapattah project to Petitioner. Mr. Ventry requested Vernon E. Dixon, FDOT's Preliminary Estimates Engineer, to draft an appropriate letter to Mr. St. John, setting out the facts FHWA had apparently overlooked or misunderstood. By letter from Mr. Dixon to Mr. St. John dated October 13, FDOT presented those facts to FHWA. On October 14, Mr. Dixon met and conferred with Mr. St. John and discussed the matters addressed in the October 13, letter. At the conclusion of that meeting, Mr. St. John indicated that the information and explanation presented by Mr. Dixon had indeed caused him to finally obtain a full and complete understanding of the facts and reasoning which led FDOT to reconsider its earlier decision and to finally decide to accept Petitioner's bid and to award the contract for construction of the Allapattah project to Petitioner. Mr. St. John cautioned that he would have to consult with certain FHWA officials in Washington to determine whether FDOT's development of a new estimate of the cost to construct the Allapattah project after bids were received and opened would preclude FHWA from concurring with FDOT to award the Allapattah project to Petitioner. By letter dated October 22, from Mr. St. John to Mr. Dixon, FHWA informed FDOT that FHWA would not concur with FDOT's decision to award the Allapattah project to Petitioner, that the project is no longer authorized, and that the federal funds authorized for construction of the project have been deobligated. Although the procedure followed by FDOT in reevaluating Petitioner's bid for award of the contract to construct the Allapattah project was the same procedure it followed in evaluating the bid submitted by Three-W Corporation for award of the Earlington Heights project, FHWA refused to concur with FDOT's reconsidered decision respecting Petitioner's bid. Petitioner's bid for award of the contract to construct the Allapattah project was responsive, realistic and reasonably competitive in all material respects. Any substantial difference between the amount of Petitioner's bid and FDOT's pre-bid estimate for the Allapattah project is attributable to inflationary factors. Although FDOT has now acknowledged these facts to be true with respect to both the Allapattah project and the Earlington Heights project, FDOT has failed to implement its decision to accept Petitioner's bid and to award the contract to construct the Allapattah project to Petitioner. If FDOT had implemented its decision to accept Petitioner's bid and to award the contract to construct the Allapattah project to Petitioner, the amount of the contract would have equalled the amount of Petitioner's bid, $15,193,048.40. If FDOT implements its decision to accept Petitioner's bid and to award to Petitioner the contract to construct the Allapattah project and FDOT then obtained no more than the $11,647,074.70 in federal funds committed pre-bid by FHWA to fund construction of the Allapattah project, FDOT would have to increase its pre-bid commitment of state funds by $2,469,361.08 to provide sufficient funds to equal the amount of Petitioner's bid. If FDOT implements its decision to accept Petitioner's bid and award to Petitioner the contract for construction, and pays one hundred percent (100 percent) of the cost of construction from state funds, FDOT would have to increase its pre-bid commitment of state funds to provide sufficient funds to equal the amount of Petitioner's bid. Although Petitioner was and continues to be a qualified contractor, although Petitioner was and continues to be certified as a disadvantaged business enterprise eligible to bid for award of the contract to construct the Allapattah project, FDOT has not yet awarded that contract to Petitioner. The only reasons FD0T has stated for having not yet awarded the contract to construct the Allapattah project to Petitioner is that FHWA has not concurred with FDOT's decision to accept Petitioner's bid and to award the contract for construction of the Allapattah project to Petitioner. FDOT must have FHWA concurrence in order to receive federal funds. The federal funding participation for this project is approximately 90 percent. FHWA has deobligated federal funds for the project in question. Without federal funding, this project will probably be recycled to the bidding process as a non-set aside project. If anticipated financing is not available for one project, FDOT reviews all projects to determine if that one project warrants eliminating other projects. For those projects where federal funding constitutes such a large portion of the funding, that project reverts and competes against other projects in other funds categories because at present, State funds are consumed. This competing process will resume beginning in 1988. This prioritization process is incorporated in FDOT's 5-year plan (the plan). The plan serves not only as a work plan but also as a finance plan. The comptroller uses the plan to certify that a particular project is indeed a part of the plan and that the money has been provided for. Funds are not available if they are not provided for in the plan. If changes are to be made after the plan is published, FDOT seeks legislative concurrence with those changes and without such concurrence, the changes cannot be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: The Florida Department of Transportation enter a Final Order rejecting Petitioner's bid for Job Nos. 87270-3414, 87270-3519 and 87085-3502 and readvertise said job. RECOMMENDED this 3rd day of April, 1987 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 3rd day of April, 1987.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the amended administrative complaint?
Findings Of Fact At all pertinent times, respondent Ronnie L. Barfield was registered as a roofing contractor and held a state contractor's license, No. RC 0039607. At some point, records reflected the license was inactive, but this was in error. In 1987, Jack Williams lived in the house at 3101 Kings Drive in Panama City, Florida. At all pertinent times the house belonged to Evelyn Rhoads, whose daughter Anna was once married to Mr. Williams. "[B]ack in 1987," (T.10) Mr. Williams contracted with respondent Barfield, on behalf of Ms. Rhoads, to re-roof the house. Doing business as Gulf Coast Roofing Co., Mr. Barfield estimated the work would cost $5,000, before seeing the house, but ultimately presented a bill for (and was paid) $13,922.56. Petitioner's Exhibit No. 2. Respondent removed the existing shingles, replaced rotted portions of the decking near the chimney, installed four new skylights, installed a new drip edge or eave drip and put on new felt and fiberglass shingles. Any flashing there may have been around the chimney did not survive removal of the existing shingles. The eave drip, a strip of aluminum, "puckered" over the carport because the trusses were not uniform. At Mr. Williams' request, Mr. Barfield drove three nails through the eave drip into the fascia to flatten the metal out. Exposed to the elements, the heads of these galvanized nails rusted. On August 10, 1987, after Jack had moved out, Anna moved back in. She noticed "a lot of ridges, indentations and waves in the roof." T.16. (But this may have been nothing new. When a concrete slab foundation varies in height, so that the trusses are at different heights, it makes the roof uneven.) Waviness arising even after respondent's work would more likely have been because of poor attic ventilation than any dereliction by respondent. Anna Bartness, as she has been known since July of 1988, also noticed that the shingles capping the peak or ridge of the roof were loose and uneven. When inspected in January, ridge cap shingles were found attached with only a single nail, instead of two -- one on either side -- which is the industry standard. Eventually "the ridge cap came off it was in the yard." T.16. One of the skylights leaked, when it rained. Ms. Bartness sought Mr. Williams' assistance in locating respondent to tell him of the problems. Mr. Williams remembered getting "the telephone number where [respondent] could be reached." T.14. Whether Mr. Williams himself actually telephoned is not clear, but Ms. Bartness tried repeatedly to reach Mr. Barfield by telephone. Although she never succeeded, she left messages on a telephone answering machine and also left word with a secretary in Mr. Barfield's lawyer's office. A certified letter she mailed respondent was returned unclaimed. These efforts to reach Mr. Barfield may have coincided with time he spent in south Florida. Respondent had agreed "LABOR CARRIES A 5 YEAR WARRANTY." Petitioner's Exhibit No. 2. He did not learn of complaints about the work at 3101 Kings Drive until after Ms. Rhoads complained to the Department of Professional Regulation and the present proceedings began. But he had not offered to reimburse Ms. Rhoads or otherwise honor the warranty in any way, as of the time of the hearing. Giving up on Mr. Barfield, Ms. Bartness got estimates from two other roofers, David C. Stallnecker and Mayo= Rudd. Among other things, flanges around plumbing vents that had sustained damage from external sources required replacement, flashing needed to be installed around the chimney, wood there had again rotted, and ridge cap shingles needed removal and proper installation. Mr. Rudd charged her $710 for repairs he told her consisted of putting flashing around the chimney because there was none, reapplying tar or "bull," replacing a defective vent that was leaking into a skylight and, which she could see herself, replacing shingles on the roof ridge. Petitioner's Exhibit No. 5. On or about January 15, 1988, before these repairs, Mr. Stallnecker, like Mr. Rudd, found "no flashing on the chimney." Petitioner's Exhibit No. 5; T. 44. When water began coming down the chimney in 1990, Ms. Bartness contracted with James Rutledge, doing business as Rutledge Roofing, to do additional work. He removed shingles around the chimney, replaced bad wood, installed a "membrane with plastic [r]oof cement for flashing against chimney," Petitioner's Exhibit No. 7, and replaced felt and shingles. Unless an owner instructs him not to, a reasonably prudent roofer would install flashing around a chimney that did not already have it before laying shingles there. T. 45. Testifying at hearing, Mr. Barfield never claimed that he installed flashing around the chimney. Nor did he ever say he saw flashing around the chimney. He said flashing was built in behind the brick. You couldn't see it . . . until you pulled the brick out. T. 70. On balance, however, his testimony suggested that he assumed there was flashing around the chimney, without ever seeing it. [T]he brick masons put the flashing on unless you go where they're building these 235 houses around here they would have nailed it on the side. You hardly wouldn't do that on a $200,000 house sitting on the water, I wouldn't think. I would think it would be built in. T. 71. However reasonable this assumption, and the unstated assumption that his crew had not (inadvertently) removed the flashing in taking off the existing roof, the evidence as a whole showed there was no flashing around the chimney by the time respondent's crew put down the new shingles.
Recommendation It is, accordingly, RECOMMENDED: That the Construction Industry Licensing Board fine respondent five hundred dollars ($500). DONE and ENTERED this 1st day of January, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of January, 1991. Copies furnished to: Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 G. W. Harrell, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Rowlett W. Bryant, Esquire 833 Harrison Avenue Panama City, FL 32402
Findings Of Fact At all times pertinent to the charges, respondents have been licensed real estate salesmen and brokers. Respondent Ed Wasdin holds real estate salesman's license number 0341534. Respondent Betty L. Green 2/ held real estate salesman's license number 0341467 at the time of the alleged misconduct. She now is a licensed broker. Respondent Ester L. Turner holds broker's license number 0090375. At the time of the alleged misconduct, she was the qualifying broker for Ed Wasdin Realty, Inc., a registered corporate real estate broker. (Pretrial Stipulation; Testimony of Vann.) During the time in question, Mr. Wasdin also owned and operated Ed Wasdin and Son, Inc., a licensed construction company, where Ms. Green served as his full-time secretary and office manager. She worked as a real estate salesman for Ed Wasdin Realty, Inc., on a part-time basis. (Testimony of Vann; Pretrial Stipulation.) II. On November 11, 1980, Hank V. Mannheimer and his wife, Barbara, saw an Ed Wasdin Realty, Inc., "For Sale" sign in front of a house located at 721 West Crossway Road, Tallahassee, Florida. They called the telephone number listed on the "For Sale" sign and made an appointment for respondent Wasdin to show them the house. (Testimony of H. Mannheimer, B. Mannheimer.) Later that day, Mr. Wasdin took the Mannheimers on a tour of the house. They then returned to Mr. Wasdin's office where respondent Green, as his secretary, prepared a standard real estate contract on a form published by the Florida Association of Realtors. The Mannheimers signed the contract as purchasers, and Ed Wasdin signed on behalf of Ed Wasdin and Son, Inc., the seller. The Mannheimers also delivered a $1,000 earnest money deposit check made payable to the seller, Ed Wasdin and Son, Inc. (Testimony of H. Mannheimer, B. Mannheimer; P-10, R-5.) III. The real estate sales contract contained a "Termite Clause" granting the buyers the right to have the property inspected "to determine whether there is any active termite or wood destroying organisms in any improvement on said property, or any damage from prior termite or wood destroying organism to said improvements". (P-10.) During the morning of January 15, 1981, respondent Green, on behalf of the seller, Ed Wasdin and Son, Inc., telephoned Helms Exterminating, Inc., and ordered a termite inspection of the house. David Baker, a termite inspection, was sent to the house to conduct the inspection that same morning. (Testimony of Vann, Baker.) On inspecting the house, Mr. Baker found termite infestation and termite damage to the left front corner of the house. He then telephoned Ms. Green and told her that he had seen evidence of termites. He did not, however, tell her of any termite damage. She told him that she needed a "clear" termite report by that afternoon (since closing was scheduled for that afternoon or the next day) and authorized him to treat the house for termites. She did not speak to respondent Wasdin before authorizing the treatment. (Testimony of Vann.) Mr. Baker testified that he told Ms. Green of termite damage to the house and that she promised to repair the damage in order to get him to issue a "clear" termite report that day. Ms. Green denied that Mr. Baker told of the damage and denied that she promised to make repairs. The testimony of Ms. Green is more credible and worthy of belief than that of Mr. Baker, whose previous statements about this incident have been incomplete, 3/ untrue or contradictory. In his termite inspection report of January 15, 1981, Mr. Baker indicated that no active termite infestation or visible termite damage was observed--the first statement was, at best, incomplete, the second was false. After discovering the termite damage, Mrs. Mannheimer questioned him twice. The first time, he told her that he had only found ter-mites on January 15, 1981, and mentioned nothing of termite damage. Later, when questioned again, he stated that he had also found termite damage. Further, Ms. Green was not authorized to promise structural repairs to a residence, and it is unlikely that she would have made such a promise when she did not know the extent of the damage and had no way of knowing the cost of repair. The conflict in testimony is therefore resolved in Ms. Green's favor. (Testimony of Vann, Baker.) On January 15, 1981 after treating the residence for termites, Mr. Baker issued a termite inspection report indicating that he had observed no active termite infestation or visible damage. The report, on its face, indicated that it was to be mailed to Ed Wasdin Realty at 4432 Kensington Road, Tallahassee, Florida. The Mannheimers did not see the report until after the closing. (Testimony of Baker, Green; P-7.) IV. In negotiating for and purchasing the house from Ed Wasdin and Son, Inc., the Mannheimers believed, and had reasonable grounds to believe, that they were dealing with realtors associated with Ed Wasdin Realty, Inc. The house was advertised by an Ed Wasdin Realty, Inc., "For Sale" sign; they called the number listed on the sign, and Mr. Wasdin showed them the property; a contract identified with the Florida Association of Realtors was executed which contained an Employment of [Real Estate] Agent clause; 4/ both Ms. Green and Mr. Wasdin worked for both companies; and the offices of the Wasdin realty and construction companies were located in the same model home. Although the offices in the model home were separately marked as construction or realty company offices, the conference room (where the closing took place) was not marked as belonging to either. In actuality, the sale of the residence was not a transaction on the account of Ed Wasdin Realty, Inc. The house was not listed with the realty company; a commission was not promised or paid to the realty company; and the deposit was not placed in the realty company escrow account. (Testimony of Vann, H. Mannheimer, B. Mannheimer.) No evidence was presented to show that respondent Wasdin knew, or should have known, that the house in question had a termite infestation or termite damage. There is not a sufficient factual basis to impute such knowledge to him. Neither was any evidence presented to show that respondent Turner, qualifying broker for Ed Wasdin Realty, Inc., knew, or should have known, about the real estate transaction in question, including the termite infestation and damage. The evidence is insufficient to support a factual inference that Ms. Turner was negligent or derelict in her duty to supervise the realty company's operations. Although, in this case, a realty company's sign was used to advertise a property which was not listed with the company, the evidence does not show that this had ever happened before, that this was anything but an isolated mistake. The evidence is insufficient to support a finding that either Mr. Wasdin or Ms. Green saw the termite inspection report prior to closing, or affirmatively represented to the Mannheimers that no termites had been discovered during the January 15, 1981, termite inspection. 5/
Recommendation Based on the foregoing, it is RECOMMENDED: That the administrative complaint against the respondents be dismissed. DONE and RECOMMENDED this 15th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. 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 15th day of October, 1982.
The Issue Petitioner's complaint and Petition for relief allege that she was discriminated against due to her handicap of multiple sclerosis when she was terminated by Respondents on March 9, 1990. The issue for disposition is whether that violation of Section 760.10, F.S., occurred, and if so, what relief is appropriate.
Findings Of Fact Leah Swenson-Davis was employed by Respondent, Orlando Partners, as a national sales manager from August 1989, until her termination on March 9, 1990. As sales manager she searched out new business for the hotel, maintained files and obtained repeat business from corporations and other customers. Her salary was $28,000.00 a year. Louis Evans was director of sales, and her supervisor. He hired Ms. Swenson-Davis to book conventions and also hired Barbara Hydechuk and Beth Darkshani as other sales staff. In his opinion Ms. Swenson-Davis was a "pro"; she generated substantial revenue for the hotel and her sales bookings were "much superior" to the other staff. At one point, the three women were promised new office chairs if they could generate 500 room/nights by Friday of the same week. They made their goal, with Ms. Swenson-Davis bringing in 437 out of the total, and the other women bringing in the remainder. In addition to booking hotel rooms, Ms. Swenson-Davis also was effective in selling other hotel services. She generated business from groups who had previously used the hotel but had not been reworked. Her booking packages were very detailed and thorough and she had few cancellations. In February 1990, Barbara Hydechuk was promoted to director of sales, and she took over the responsibility of national sales. Leah Swenson-Davis was hospitalized in February 1990, for what was originally thought to be a stroke. She was then diagnosed as having multiple sclerosis, a disease affecting functions in the nervous system. Hers is not a severe form of the disease and her physician released her to return to work half-time. At the hearing, no signs of illness were evident; that is, she moved and spoke in a perfectly normal manner. When she returned to work, however, Ms. Swenson-Davis was treated "like a leper". Bill Flynn and Barbara Hydechuk made her feel like she would infect them. She was kept at a physical distance. During her absence, Barbara Hydechuk had been promoted. When Ms. Swenson-Davis asked Bill Flynn why she was not informed of the promotion opportunity, he replied that he had worked with Barbara. The work atmosphere, and employees' attitudes toward Ms. Swenson-Davis were very different after her return to work. On March 9, 1990, the Friday before Ms. Swenson-Davis was to pick up her doctor's release to return to work full-time, she was informed by Barbara Hydechuk that she was "terminated immediately" due to lack of productivity in the sales department. Since her termination, Ms. Swenson-Davis has submitted approximately 300 applications with other hotels, and in other sales and marketing areas. She has been given interviews, but has not been hired as of the date of the hearing, although she is capable of working full-time. She received unemployment compensation from March until September 1990. She has accrued medical expenses in the amount of $12,602.00, in 1992, for herself and her son, which expenses would have been covered by her former employer's benefit package. She was insured through COBRA until December 1990, when the premiums went over $500.00 and she could no longer afford them.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter its final order requiring 1) Reinstatement of Petitioner in the same or equivalent position, 2) damages of back pay computed at the rate of $28,000.00 per year from the time of discharge until reinstatement or rejection of an offer of equivalent employment, less payments received for unemployment compensation; 3) damages in the amount of $12,602.00, representing medical benefits lost; and 4) reasonable costs and attorneys fees. DONE AND RECOMMENDED this 14th day of January, 1993, 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3920 The following constitute specific rulings on the findings of fact submitted by Petitioner: 1. Adopted in paragraph 1. 2.-3. Adopted in paragraphs 2, 3, and 4. 4. Rejected as irrelevant. 5.-6. Adopted in paragraph 6. 7. Adopted in paragraphs 2, 5, and 7. Rejected as contrary to the evidence. Petitioner asked why she was not told of the promotion opportunity. Adopted in paragraph 7. Adopted in paragraph 5. 11.-12. Adopted in paragraph 8. Rejected in part. The complaint in this case relates to wrongful termination, not failure to promote. Moreover, no competent evidence supports a finding that Petitioner would have applied for promotion or was denied promotion on account of her handicap. The other employee was promoted prior to Petitioner's return to work. Adopted in paragraph 9. Rejected as unsupported by the evidence. Basis for the computation is not apparent. Rejected as immaterial. Adopted in substance in paragraph 9, although the $200.00 expense incurred in 2/90 is rejected, as petitioner was still employed at that time. Rejected as unsupported by competent evidence. Rejected as unnecessary, although the recommendation for reinstatement is adopted. COPIES FURNISHED: James A. Kirkland Kirkland Management, Inc. 946 North Mills Avenue Orlando, Florida 32802 Percy Bell K. F. International Host, Inc. 1600 Lee Road Winter Park, Florida 32790 Raymond Rotella Kosto & Rotella, P.A. Post Ofice Box 113 Orlando, Florida 32802 Orlando Partners, Inc. d/b/a Quality Hotel Orlando Airport 3835 McCoy Road Orlando, Florida 32812-4199 Tobe Lev, Esquire Post Office Box 2231 Orlando, Florida 32802 Betsy Kushner, Claim Representative Cigna Property and Casualty Companies Post Office Box 30389 Tampa, Florida 33630-3389 Margaret Jones, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4113
The Issue At issue is whether petitioner's application to take the examination required for licensure as an optician should be approved.
Findings Of Fact Mr. Silverstone seeks licensure through the apprenticeship program. His organized sponsor indicated he only supplied initial sponsorship forms. The vast majority of the hours Mr. Silverstone claims were not certified by his sponsor whose signature was forged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered approving petitioner's application to take the examination required for licensure as an optician, and imposing an administrative fine of $1,000. DONE AND ENTERED this 13th day of June, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997.
Findings Of Fact The Respondent, Charles R. Boyd, was and is a certified general contractor in the State of Florida, and holds license number CG CO12754. Mr. Boyd was also the qualifying agent for Boyd-Scarp Construction Company. On May 13, 1983, the Boyd-Scarp Construction Company contracted with Paul and Debra Ciolli for the construction of a custom designed single family residence at 2385 Northeast Fallon Boulevard, Palm Bay, Florida. The contract price was $85,000. The Respondent and Thomas Scarp were equal partners in the Boyd-Scarp Construction Company and Boyd-Scarp Enterprises, Inc. Mr. Scarp was also a licensed general contractor, but was primarily responsible for financial matters in the companies, and the Respondent was primarily responsible for supervision of construction. The Respondent designed the Ciolli home, and his draftsman prepared the plans. During the course of construction, the Respondent visited the site of construction a few times (no more than once a week), but relied primarily upon his superintendents to supervise. At that time, the Boyd-Scarp Construction Company had approximately 35 homes under construction throughout Brevard County. Respondent employed several superintendents of construction at the Ciolli home. The first, Tom Wright, was having personal problems, and the Respondent fired him. The second, Rick Shite, did not do an adequate job, and the Respondent fired him. The third, Dave Bryant, left Boyd-Scarp before the home was finished. The fourth, Bill Snyder, was primarily assigned to the punch list, as was the fifth, Dave Lightholder. Mrs. Ciolli visited the construction site daily, and on several occasions noticed defects or problems in the construction. She tried each time to contact the Respondent, who was responsible for construction, but was always referred to Mr. Scarp, who was responsible for financial matters. The framing subcontractor did an inadequate job framing the walls. Many of the walls were out of square, were not plumb and true, and had discernible waves in them after the drywall was installed. Some walls had a deflection of 1/2" in four feet. The Ciolli's hid the bowed wall in the kitchen by placing the refrigerator in a spot that otherwise would not have been used for that purpose. Ceilings were one to three inches out of square with the wall. The deflection was one inch in twelve feet in the master bedroom, and one inch in four feet in the master bathroom. In the bathroom, the deflection where the ceiling met the wall on a slant prevented the later installation of squares of mirror tile. The drywall was inadequately installed. Taping and bedding was inadequately done where the drywall met the ceilings. Joints were poorly taped, or not taped at all in some cases. Nails popped loose. Some of these defects were hidden by the Ciolli's with wallpaper. The interior walls had structural cracks at load bearing points, notably located beside the fireplace, at the sliding glass doors, over windows, and below windows. The roof trusses, as installed, were inadequate: A majority of the trusses were either not anchored to the tie beam with hurricane straps, or were inadequately anchored. This was caused by a combination of improper spacing of anchors on the tie beam and variations in the spacing of the trusses. (The trusses by plan were to have been 24 inches on center.) The trusses were not installed level and plumb. Several of the trusses did not have adequate contact for purposes of load-bearing on the tie beam, and were not shimmed. One truss had been cut and had been improperly scabbed back together with smaller stock and toe nails. At least one truss showed a space between the top chord and the perpendicular support, thus making the perpendicular support inadequate as a load bearing member. Trusses over the garage were originally constructed to span 22 feet 8 inches. One foot was cut from each end, and the trusses were installed as modified, since the plans called for trusses spanning 20 feet 8 inches. It is unclear from the evidence whether the trusses had been improperly modified on site by removal of the gang nail plates, and inadequately reassembled and renailed, or were originally delivered in a defective condition. The issue is irrelevant, however, because the trusses were inadequate as installed for the reasons described above. As a result of the inadequacies in the installation of the trusses, the ridge of the main roof sags in several places, and as much as four inches in one place. Sags in the one-half inch plywood roof sheathing also exist between truss top chords. Spaces exist between the top chords of the trusses and the plywood sheathing. These warps are caused by the inadequacies of the roof trusses, and may have also been exacerbated by warping in the sheathing before or during application. As a result of the foregoing roof inadequacies, roofing nails had worked loose, shingles were beginning to pop up in places, and the roof has serious leaks. See P. Ex. 22, photograph 6. The garage roof as completed was left with an open hole in it. The hole is six inches long and one-half inch wide. During thunderstorms, water pours through the hole into the garage, and damages the wall adjoining the garage and the house. As a result of the roof inadequacies, there is dampness in ceiling areas, the ceiling finish and paint is flaking, and there is a substantial amount of mildew on walls, ceilings interfaces with floors and walls, and in closets. Without hurricane anchors, the house is unsafe in a hurricane or other storm of high wind. The back porch slab is four inches in width and does not have steel reinforcing. The plans called for a slab to have a 12 by 8 inch turn down edge with steel reinforcing (as support for future construction). Mr. and Mrs. Ciolli were concerned about these defects, and told Mr. Boyd that they did not want to close without review by an engineer. The Ciolli's were told that if they did not close, Boyd-Scarp would sue them and sell the house to someone else. The Ciollis closed. Subsequently, the Ciollis hired Paul Holmlin, and engineer and an expert in residential construction, to inspect their new residence. As a result of that inspection, Mr. and Mrs. Ciolli sued. On August 16, 1985, Mr. and Mrs. Ciolli obtained a default judgment against the Boyd-Scarp Construction Company and Boyd-Scarp Enterprises, Inc., in the amount of $36,000. The Respondent has now formed a new company, Charles Boyd Homes, Inc. In the last three years, the Respondent has been actively constructing residences with his new company. He has built 60 to 70 new homes a year for the last three years in the price range of $150,000 to $500,000. The Respondent has not paid the Ciollis judgment. The Respondent corrected some of the drywall installation deficiencies, but has not corrected the wall framing deficiencies and the roof deficiencies. The Respondent was of the opinion that the defects discussed above were cosmetic. The continuous lintel block around the perimeter was structurally sound and adequate, and had no defects. The defects discussed in findings of fact 7 through 18 constitute gross negligence and incompetence in the practice of contracting, and were the direct result of the Respondent's failure to supervise properly the work as qualifying agent. The Respondent has been a general contractor in Brevard County for fourteen years and has constructed over six hundred residences in value from $50,000 to $500,000. The Respondent was awarded the designation "Builder/Developer of the Year" by the Melbourne City Council in 1978 and 1979, first prize in the Parade of Homes in 1984, 1986, and 1987, the Merit Award for Workmanship, and first price in the Suntree Parade of Homes for the last three years. He is the Director of the Brevard County Homebuilder's Association this year. The Respondent's livelihood would be detrimentally affected if the maximum disciplinary action is imposed. The Respondent received a letter of guidance from the Department of Professional Regulation for failure to display his certification number in a telephone directory advertisement. No other discipline has been levied against the Respondent.
Recommendation Since the damage to Mr. and Mrs. Ciolli has not been remedied, it is recommended that the Department of Professional Regulation, Construction Industry Licensing Board, enter its final order suspending the license of Charles R. Boyd for a period of six (6) months, and levying a fine of $2000. DONE and ENTERED this 15th day of July, 1988. WILLIAM C. SHERRILL, JR. 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 15th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2703 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties. Findings of fact proposed by the Petitioner: 6-11. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. The allegation that the linoleum was peeling is not in the administrative complaint. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. 14.C. While there is clear and convincing evidence that the trusses were not uniformly 24 inches on center, the exact count of such deviations was not shown by clear and convincing evidence. There was too much conflict of expert testimony on the point. 14.F., and 25.F. There is clear and convincing evidence only that one truss chord was sawed through. The degree of spalling of exterior stucco was not proven by clear and convincing evidence. Sag of the garage roof was not proven by clear and convincing evidence. The last sentence is true, but subordinate, and is adopted by reference. 14.K. and P., 15-17, 20. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. This proposed finding of fact is not supported by clear and convincing evidence. This proposed finding of fact is not supported by clear and convincing evidence. 21.E. This proposed finding of fact is contrary to the stipulation of the parties entered into-on the second day of the hearing. 22-24, 25.A-E, G, 26-34. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. Findings of fact proposed by the Respondent: 2. The proposed finding that the supervisors were in constant contact with the Respondent and Mr. Scarp is not supported by credible evidence. 5-7. It is true that inspections were made by inspectors from the City of Palm Bay and the Veterans Administration. It is also true that the Respondent was not cited for any violations of any building codes, and that the VA inspector stated that the problems were cosmetic. But those inspectors evidentally did not inspect the roof and walls very closely, given the degree of the defects in those structural portions. The problems were not cosmetic. Moreover, those inspectors did not testify, and thus their observations are not evidenced in the record. The lack of hurricane anchors is a life safety defect. The truss system is structurally unsound in that it has caused the roof to warp, the shingles to deteriorate, and the roof to leak. The structure of a roof is intended not to leak. If it leaks, it is structurally unsound. The Respondent made no effective effort to correct the primary defects noted above. Had he done so, the defects would have been corrected. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James L. Reinman, Esquire REINMAN, HARRELL, SILBERHORN & GRAHAM, P.A. 1825 South Riverview Drive Melbourne, Florida 32901 William O'Neill, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 =================================================================
The Issue This is a bid challenge proceeding in which the Petitioners seek relief on the basis of allegations that the Respondent engaged in conduct which was fraudulent, arbitrary, illegal, or dishonest regarding the award of contracts under RFP No. 96C- 010G, Asbestos and Industrial Hygiene Consulting Services. The Petitioners assert that if their proposals were properly evaluated, they would both be entitled to contracts under the subject RFP. Specific issues raised by the Petitioners are as follows. The formal written protest filed by Petitioner Gaudet Associates, Inc. ("Gaudet"), is in the form of a letter dated October 20, 1995. That letter raises numerous issues in twelve numbered paragraphs. At hearing Gaudet announced that it was pursuing only three basic issues. The essence of those three issues is set forth in paragraphs 2, 3, 4, 6, and 7 of Gaudet's formal written protest. Reduced to their simplest terms, the three issues Gaudet pursued at hearing are: Whether it was arbitrary for the evaluation committee to assign a seventy dollar per hour rate to an "office manager" position in its evaluation of Gaudet's proposal. Whether it was arbitrary for the evaluation committee to contact some proposers and allow them to clarify their proposals without also contacting Gaudet and allowing Gaudet to clarify its proposal. Whether it was arbitrary for the evaluation committee to deduct points from Gaudet's proposal because Gaudet did not list an architect in its proposal. The formal written protest filed by EnHealth Environmental, Inc. ("EnHealth"), is in the form of a letter dated October 19, 1995. That letter raises two basic issues, each with two sub- issues. Reduced to their simplest terms, those issues are: Whether it was arbitrary or illegal for the School District to award contracts to proposers who were not, or might not be, in compliance with Section 496.006, Florida Statutes. Whether it was arbitrary or illegal for the School District to award contracts to proposers who were not, or might not be, in compliance with Section 496.007, Florida Statutes. Whether it was arbitrary for the evaluation committee to contact some proposers and allow them to clarify their proposals without also contacting EnHealth and allowing EnHealth to clarify its proposal. Whether it was arbitrary for the evaluation committee to deduct points from EnHealth's score based on the assumption that EnHealth's hourly rates for services did not include supplies, materials, and equipment necessary to provide those services. At the formal hearing, EnHealth for the first time raised two additional issues; namely, (a) whether it was arbitrary for the evaluation committee to assign a sixty dollar per hour rate to an "office manager" position in its evaluation of EnHealth's proposal, and (b) whether it was arbitrary for the evaluation committee to deduct points from EnHealth's score because EnHealth did not have a professional engineer or a licensed architect.
Findings Of Fact General matters On or about August 23, 1995, the School District of Palm Beach County issued a request for proposal titled Request For Proposal (RFP) For Asbestos And Industrial Hygiene Consulting Services, which was identified as SB 96C-010G. Seventeen vendors submitted proposals in response to the subject RFP. During the course of evaluation of all of the proposals, each proposal was assigned a point score. Following evaluation of all proposals, the School District proposed to award contracts to the three proposers with the highest point scores. Those proposers and their scores were as follows: Entek Environmental & Technical Services, Inc. 281 points Atlantic Coast Services Corp. 267 points Evans Environmental & Geological 265 points Petitioner EnHealth, with a total of 257 points, was ranked fourth. Petitioner Gaudet, with a total of 256 points, was ranked fifth. The School District did not offer contracts to EnHealth or Gaudet. Gaudet, EnHealth, and both of the Intervenors all submitted timely responsive proposals. The specifications The specifications for the subject RFP include the following provisions regarding the School Board's reservations of rights: The District reserves the right to accept or reject any or all proposals. The District reserves the right to waive any irregularities and technicalities and may, at its sole discretion, request a re-submittal or other information to evaluate any or all proposals. * * * The District reserves the right to: (1) accept the proposals of any or all of the items it deems, at its sole discretion, to be in the best interest of the District; and (2) the District reserves the right to reject any and/or all items proposed or award to multiple proposers. The District reserves the right to give preferences to the award to those firms with the highest ranking; however, nothing herein will prevent the School Board of Palm Beach County, Florida, from making multiple awards and to deem all proposals responsive, and to assign work to any firm deemed responsive. The specifications for the subject RFP include the following provisions regarding comunications between proposers and the School Board: In order to maintain a fair and impartial competitive process, the District must avoid any oral communications with prospective proposers during the proposal preparation and evaluation period. However, all proposers will be provided, in writing, with both the questions and the responses to any inquiries (other than administrative or procedural details). Send all inquiries to attention: Ms. Gaea Peary, Buyer Procurement Department School District of Palm Beach County 3326 Forest Hill Boulevard West Palm Beach, FL 33406 (407) 434-8412 All written questions and inquiries are due no later than September 13, 1995. The specifications for the subject RFP include the following provisions regarding the proposal evaluation process: An Evaluation Committee, consisting of district personnel, will be appointed by the Superintendent of Schools or her designee. RFPs are received and publicly opened. The Evaluation Committee will convene, review and discuss all proposals submitted. The Evaluation Committee, at its sole discretion, may require any/all proposer(s) to attend an interview in order to further clarify or evaluate any proposal(s). The interview may be used as a factor in evalua- tion of any/all proposal(s). The Evaluation Committee will individually score or rate each proposal in accordance with the evaluation criteria, as listed below. The Evaluation Committee will have central responsibility for reviewing and evaluating all proposals submitted in response to this RFP. The Evaluation Committee will act as advisor to the District. The Evaluation Committee will recommend award to one or more proposer(s), to the Procurement Department Coordinator. The Procurement Department Coordinator will prepare and submit an agenda item to the Superintendent of Schools, Palm Beach County, Florida. The Superintendent will recommend to the School Board, the award or rejection of any and/or all proposal(s). The School Board will award or reject any or all proposal(s). Section 10.0 of the specifications for the subject RFP contains the following provisions regarding the evaluation criteria to be used by the Evaluation Committee: EXPERIENCE AND QUALIFICATIONS OF THE FIRM: (Maximum 20 points) The firm must hold appropriate licenses, permits, and insurance to operate in the State of Florida. At minimum, firm must be a licensed asbestos consultant as detailed in Chapter 455, Florida Statutes, and employ acertified industrial hygienist. Submit copy of all required licenses and permits. EXPERIENCE AND QUALIFICATIONS OF FIRM'S STAFF: (Maximum 20 points) The qualifications and experience of the firm's staff will be reviewed from information submitted in the proposal documents. FIRM'S LOCATION AND TIME CONSIDERATION: (Maximum 10 points) Geographical location of the firm and field staff will be considered regarding how it relates to availability and timely scheduling of services. CAPABILITIES OF THE FIRM: (Maximum 25 points) The District is interested in contracting with firms capable of providing a broad range of asbestos and industrial hygiene consulting services. Asbestos consulting services needed include: asbestos abatement design and coordination, asbestos abatement supervision, preparation of abatement reports, facility surveys in accordance with AHERA, asbestos management plan development and updating, sampling and analyses for bulk and air samples, all record keeping for the District's asbestos management program, claims preparation for the Manville Property Settlement Trust and other related duties. Industrial hygiene consulting services needed may include indoor air quality assessments, hazard assessments, ventilation assessment, radon measurement and mitigation, laboratory services, personal monitoring and other related activities. PRICE PROPOSAL: (Maximum 25 points) The fees listed in the proposal document shall remain fixed for the first year of the contract. However, the fees may be subject to adjustment in subsequent years based on changes in the National Consumer Price Index for the prior calendar year as published by the US Department of Commerce, Division of Labor. The price adjustment will be considered upon written request from the firm. Section 14.1 of the specifications for the subject RFP contains the following language: 14.1 Federal, state, county and local laws, ordinances, rules and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the proposer(s) will in no way be a cause for relief from responsibility. Section 20.1 of the specifications for the subject RFP contains the following language: 20.1 The proposer(s) will be responsible for obtaining any necessary permits and licenses and will comply with laws, rules, and regulations whether state or federal and with all local codes and ordinances without additional cost to the District. No one filed a protest challenging the specifications of the subject RFP. The evaluation process All of the proposals were evaluated by an evaluation committee comprised of three School District employees; Chris Skerlec, Robert Mayfield, and Dan Whetstone. The evaluation committee rated each of the seventeen proposals on the basis of each proposer's responses to specific questions related to the five categories of evaluation criteria and assigned a point value to the responses given by each proposer. For each proposer the evaluation committee than totalled the points scored in each of the five categories. During the course of the evaluation of the proposals, one of the members of the evaluation committee contacted several of the proposers and gave them an opportunity to clarify information in their respective proposals prior to the scoring of those proposals. Neither Gaudet nor EnHealth was contacted and given such an opportunity. The evaluation committee as a whole did not conduct any of the "interviews" provided for by Section 9.4 of the RFP specifications. The act of allowing some proposers to clarify their proposals prior to scoring gave those proposers an unfair advantage over proposers like Gaudet and EnHealth who were not afforded such an opportunity. Evaluation of Gaudet's proposal The evaluation committee deducted points from Gaudet's total score based on a value the committee assigned to an "office manager." Gaudet does not employ an office manager. Gaudet does not bill its customers for office manager functions because it treats those functions as part of its overhead. Gaudet neither proposed nor intended to charge the School District for the performance of office manager services. Gaudet's proposal does not contain any reference to a proposed charge to the School District for the services of an office manager. The subject RFP specifications do not require that a proposer employ an office manager, nor do they require that a proposer charge the School Board for the services of an office manager. In scoring the price proposal section of the subject RFP, the evaluation committee selected five categories of job responsibilities and assigned a price to each of those categories for each proposer based on job titles and duties described in each proposer's proposal. The five job categories used by the evaluation committee were: asbestos consultant, office manager, project manager, technician, and clerical. Mr. Skerlec devised this price proposal evaluation methodology; the two other evaluators merely followed Mr. Skerlec's method. Mr. Skerlec's methodology was not based on his individual experiences with the pricing details of the proposing firms. Rather, it was based on his experience with other consultants who had previously provided similar services to the School District. This methodology was flawed and produced unfair results because it was based in part on arbitrary and unwarranted assumptions about some of the proposals, rather than on information contained in the proposals. In scoring Gaudet's price proposal, the evaluation committee applied a value of seventy dollars per hour for office manager services. The committee members did not obtain this value from the proposal submitted by Gaudet because Gaudet's proposal did not list an office manager. Rather, the evaluators concluded that someone must perform office manager duties at Gaudet and Gaudet must charge the School District some price for office manager services. Based on these conclusions, the evaluators then assumed that Gaudet would charge seventy dollars per hour for the services of an office manager. The members of the evaluation committee deducted a total of thirty points (ten points each) from Gaudet's total score due to the assignment of a seventy dollar per hour value to the nonexistent "office manager" position. If those thirty points were to be added back to Gaudet's total point score, Gaudet would have received a total of 286 points. With a score of 286, Gaudet would have been one of the top three proposers. During the evaluation process, none of the evaluators (nor anyone else from the School District) contacted Gaudet to seek clarification as to whether Gaudet proposed to charge for the services of an office manager and, if so, how much Gaudet proposed to charge. Similarly, during the evaluation process none of the evaluators (nor anyone else from the School District) contacted Gaudet to seek clarification as to any other aspect of Gaudet's proposal. The evaluation committee also deducted points from Gaudet's overall score based on the fact that Gaudet does not employ a licensed architect. Section 30.0 of the RFP specifications asks whether the proposer has a professional engineer and/or a licensed architect "on staff." Each of the evaluators deducted points from Gaudet's score because Gaudet does not employ a licensed architect. A total of nine points was deducted from Gaudet's score on the basis that it did not employ an architect. Evaluation of EnHealth's proposal The evaluation committee deducted points from EnHealth's total score based on the assumption that EnHealth proposed to charge the School District for equipment independent of the charge for personnel. The base price for personnel, listed at Section 34.1(A) of EnHealth's proposal, was intended by EnHealth to include all equipment, supplies, and materials necessary to perform the work required, without an additional charge for such equipment, supplies, and materials. Such intent was not clearly stated in Section 34.1(A) of EnHealth's proposal. Some other proposers did clearly state such an intent in their proposals. Section 34.1(B) of the RFP specifications requires each proposer to: "Attach a price list for all equipment, supplies, and services offered to the District. In response to this requirement, EnHealth included the following information in its proposal: Equipment Daily Weekly Personal Monitoring Pumps $40.00 $160.00 Hi-volume Sampling Pumps $35.00 $115.00 Anderson-Graseby N-6 Sampler & Pump Kit $55.00 $180.00 Additional IH sample equipment can be provided upon request. Rental costs will be negotiated based on equipment needed. Shipping charges to be paid by School Board. Equipment is to be returned to EHE in good condition and repair, wear from reasonable and proper use expected. Clean-up and decontamination charges of $50 per item will apply if such service is deemed necessary. School Board is responsible for damage to equipment due to abuse, misuse, or negligence and agrees to pay repair or replacement cost. EnHealth did not intend to charge the School District for the use of the pumps listed in Section 34.1(B) of its proposal unless the pumps were used by School District personnel. The members of the evaluation committee deducted a total of nine points (three points each) from EnHealth's total point score due to the assumption that EnHealth planned to charge the School District separately for personal monitoring pumps and high volume sampling pumps when such pumps were used by EnHealth personnel to provide services. If these nine points were to be added back to EnHealth's total point score, EnHealth would have received a total of 266 points. With a score of 266, EnHealth would have been one of the top three proposers. During the evaluation process, none of the evaluators (nor anyone else from the School District) contacted EnHealth to seek clarification as to whether EnHealth proposed to charge the School District separately for personal monitoring pumps and high volume sampling pumps when such pumps were used by EnHealth personnel to provide services. Similarly, during the evaluation process none of the evaluators (nor anyone else from the School District) contacted EnHealth to seek clarification as to any other aspect of EnHealth's proposal.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a Final Order in this case concluding that the evaluation of the proposals submitted in response to the subject RFP was conducted in an arbitrary manner which was fundamentally unfair to the Petitioners in these cases and curing the fundamental unfairness by either re-evaluating all proposals or by re-bidding the project with revised specifications. DONE AND ENTERED this 29th day of March 1996 at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1996. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner Gaudet: Paragraphs 1 through 7: Accepted in substance. Paragraph 8 (and its many subparagraphs): Rejected as comprised primarily of argument, conclusions of law, and summaries of testimony, rather than proposed findings of fact. (Based on the evidence the Hearing Officer has made findings on the subjects addressed by these subparagraphs that are generally consistent with the views advanced by the Petitioner Gaudet.) Paragraph 9 (and its many subparagraphs): Rejected as comprised primarily of argument, conclusions of law, and summaries of testimony, rather than proposed findings of fact. (Based on the evidence the Hearing Officer has made findings on the subjects addressed by these subparagraphs that are generally consistent with the views advanced by the Petitioner Gaudet.) Paragraph 10 (and its many subparagraphs): Rejected as comprised primarily of argument, conclusions of law, and summaries of testimony, rather than proposed findings of fact. (Based on the evidence the Hearing Officer has made findings on the subjects addressed by these subparagraphs that are generally consistent with the views advanced by the Petitioner Gaudet.) Paragraph 11: Rejected as procedural details that do not need to be included in the findings of fact. Paragraph 12: Accepted in substance. Findings submitted by Petitioner EnHealth: Paragraphs 1 through 4: Accepted in substance. Paragraph 5: Rejected as procedural details that do not need to be included in the findings of fact. Paragraph 6: Rejected as irrelevant because EnHealth did not raise any issue about the office manager in its formal protest. Paragraphs 7 and 8: Accepted, but only because they are relevant to issues raised by another party. Paragraphs 9 and 10: Rejected as irrelevant because EnHealth did not raise any issue about the office manager in its formal protest. Paragraph 11: Accepted in substance, but with the deletion of editorial or argumentative comments. Paragraph 12: First sentence accepted in substance. Second sentence rejected as contrary to the greater weight of the evidence. Paragraphs 13 and 14: Accepted in substance. Paragraph 15: Rejected as primarily argument, rather than proposed findings of fact. Paragraph 16: First sentence rejected as argument. Second sentence accepted in substance. Paragraph 17: Accepted in part and rejected in part. Accepted that nine points were deducted from EnHealth's score based on the pump charge issue. No points were deducted because of the office manager issue. Paragraphs 18, 19, and 20: Rejected as primarily argument, rather than proposed findings of fact. Paragraph 21: Accepted in part and rejected in part. Accepted that nine points were deducted from EnHealth's score based on the pump charge issue. No points were deducted because of the office manager issue. Paragraphs 22 through 28: Rejected as irrelevant because EnHealth did not raise any issue about the engineer or architect in its formal protest. Paragraph 29: Accepted. Paragraphs 30 and 31: Accepted in substance with some unnecessary details omitted. Paragraph 32: Rejected as argument or as conclusion of law, rather than proposed findings of fact. Paragraph 33: Accepted in substance. Paragraph 34: Up to first comma is accepted in substance; the remainder is rejected as argument or conclusion of law, rather than proposed finding of fact. Findings submitted by Respondent: Paragraphs 1 and 2: Accepted in substance. Paragraph 3: Rejected as subordinate procedural details that do not need to be included in the findings of fact. Paragraph 4: Accepted in substance, but with additional details in the interest of clarity and accuracy. Paragraphs 5 and 6: Rejected as subordinate procedural details that do not need to be included in the findings of fact. Paragraph 7: Accepted in substance, but with additional details in the interest of clarity and accuracy. Paragraph 8: Accepted. Paragraph 9: Rejected as contrary to the greater weight of the evidence. Paragraph 10: Accepted in substance. Findings submitted by Intervenors: (Neither Intervenor submitted any proposed findings of fact.) COPIES FURNISHED: Douglas Lambert, Esquire Fleming, Haile, Shaw & Gundlach, P.A. 11780 U. S. Highway One 3 Golden Beach Plaza, Suite 300 North Palm Beach, Florida 33409 Joseph W. Lawrence, II, Esquire Cummings, Lawrence & Vezina, P.A. 1600 South East 17th Street Causeway Suite 304 Fort Lauderdale, Florida 33316 Robert Rosillo, Esquire Legal Department School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33408-5813 Mr. Gary Butler Atlantic Coast Service Corporation Post Office Box 387 DelRay Beach, Florida 33447-0387 Norman Frank, Esquire c/o Kelly Evans, Vice President Evans Environmental & Geological 99 Southeast Fifth Street, Fourth Floor Miami, Florida 33131 Dr. Bernard Shulman Superintendent of Schools Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
