Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background On August 16, 1991, respondent, Department of Professional Regulation (DPR), issued Request for Proposal No. 92-002 (RFP) to various firms inviting them to submit proposals for assisting DPR and the Florida Real Estate Commission (Commission) in the production and scoring of the Florida Real Estate and Appraisal Examination for the period beginning January 1, 1992, through June 30, 1993, with a renewal option for one to two years. More specifically, the contract called for the successful firm to develop examinations from a bank of questions provided by the Commission, administer periodic examinations, score and analyze tests, and perform other related support services. Such proposals were to filed no later than 2:00 p.m. on September 20, 1991. Thereafter, and in accordance with the RFP, a six-person committee composed of representatives of the DPR, Commission and Division of Real Estate (Division) would evaluate the proposals and make a recommendation to the Secretary of DPR, who retained final authority to award the contract. Proposals were timely filed by three firms, including petitioner, Professional Testing Service, Inc. (PTS), Applied Measurement Professionals, Inc. (AMP), and National Assessment Institute (NAI). After these proposals were evaluated by the committee, AMP was recommended for award of the contract. By a 4-3 vote, the Commission concurred with this recommendation. On October 24, 1991, the Secretary of DPR selected AMP as the recipient of the contract, and notice to that effect was posted. Citing various alleged irregularities in the review process, PTS filed its formal protest to the award of the contract on November 4, 1991. After efforts to informally resolve this dispute were unsuccessful, this proceeding ensued. The Vendors Who Submitted Proposals Petitioner is a Florida corporation with offices located at 223 Pasadena Place, Orlando, Florida. It has provided various licensure examination services to DPR for the past eighteen years. Except for a two year break in 1984 and 1985, for the last eleven years PTS has held the contract with DPR to provide licensure examination services on the real estate examination, and pending resolution of this dispute, it continues to provide such services. AMP did not intervene as a party in this cause. However, according to its proposal, AMP is a Kansas corporation with offices at 8310 Nieman Road, Lenexa, Kansas, and has been in the business of developing and administering examinations since 1984. Among other things, it now provides assistance to the State of Michigan for the real estate licensure examination. AMP maintains no offices or personnel in the State of Florida. Although NAI submitted a response to the RFP, it is not a party to this action. Located in Clearwater, Florida, with branch offices in other cities in Florida and throughout the country, NAI has provided assessment services to various state governments since 1976. It has administered the DPR contractor examination for the last fourteen years. Events Leading to the Issuance of RFP 92-002 In May 1991, DPR issued RFP 91-009 requesting proposals for assistance in the development and administering of real estate examinations. That RFP requested proposals on three components of the real estate examination services, including (a) application processing, (b) test development, grading and review, and (c) administration of the examination. Items (a) and (c) and a portion of item (b) had previously been handled by the Division, the administrative arm of the Commission. In response to RFP 91-009, proposals were filed by PTS, AMP, NAI, and two other vendors. PTS was recommended for award of the contract as to two components while AMP was recommended for the award of the contract as to one component even though its proposal had been deemed to be nonresponsive. However, DPR eventually decided to reject all proposals and issue a new RFP. The new RFP (91-002) did not call for proposals on items (a) and (c) and the test development portion of item (b) since the Division determined that it would continue to perform those functions. Even so, while RFP 91-002 was more narrow in scope of services than was 91-009, it nonetheless contained some of the same terms, conditions and requirements as did the earlier RFP. It is also noted that, with one minor exception relating to on-site grading, the scope of services under the existing contract held by PTS and those enumerated in RFP 91- 002 are the same. Prior to the time for submitting responses to RFP 91-009, the Division, whose director was designated as contract manager, and Commission conducted a pre-bid conference with interested vendors to answer questions concerning the RFP. Both RFP 91-009 and 91-002 contained an identical requirement that the successful firm "(m)aintain an office/center in the greater Orlando area." In response to a question by a vendor as to whether DPR would "accept proposals that identify Tallahassee as the office/center site for the provider's office in lieu of Orlando", the response given was "no, Orlando is the designated site." Other questions and answers concerning the same topic were as follows: Q. Would the Department consider allowing the contractor (for application processing function only) to maintain offices in Tallahassee instead of Orlando, provided that 1)regular meetings are held in Orlando, and 2) reports can be delivered to the Department's offices in Orlando? A. No. Because the application processing function relating to deficient applications must be closely coordinated with the records section, the investigative section, the legal section, administrative section of the Division of Real Estate and the Florida Real Estate Commission. Florida Statutes require that the office of the Division of Real Estate and the Florida Real Estate Commission be located in Orlando. Therefore, Divisional functions must be performed in the Orlando area. Q. Is Orlando the only site the Department will agree to, or is the Department flexible to the location if all requirements can be met from another site in the State of Florida? Orlando is the only site. The above questions and answers, together with others asked and answered at the conference, were transcribed by DPR and then furnished to all interested vendors. Since AMP filed a proposal in response to RFP 91-009, it may be reasonably inferred that AMP was privy to the above clarifying information. It is noted that there was no pre-bid conference prior to the filing of proposals in response to RFP 91-002. The RFP A copy of RFP 91-002 is found on pages 90 through 108 of petitioner's composite exhibit 1. The RFP includes sections relating to statement of need, purpose, scope of work, DPR responsibilities, provider responsibilities, general information, documents required in submitting a proposal, the proposal format, proposal rating criteria, and an appendix delineating the manner in which points would be awarded in the evaluation process. Prior to the submission of the proposals, no vendor formally challenged any provision in the RFP as being unreasonable, ambiguous, or otherwise unlawful in any respect. A number of provisions within RFP 91-002 are relevant to this controversy and are cited below. First, there is a general requirement found in Article VIII which requires all responses to be prepared in a manner consistent with the requirements of the RFP. More specifically, this article provided that Respondents must follow the proposal format as set forth under Section III in this request for proposal. The provider shall refer to the request for proposal to ensure all required information is submitted. By following the designed format of proposals, respondents will have a uniform method of presenting information helping assure complete fairness by the review team in evaluating proposals. Next, Article VII set forth those documents that were required to be submitted with the proposal. Among them was a requirement in paragraph 1 that the vendor submit "evidence that the organization is a legal entity." The purpose of this requirement was to ensure that DPR could enforce the agreement in the event the successful firm later attempted to back out of its commitment. The RFP also prescribed twenty-three major services that were within the scope of work to be provided by the successful firm. Indeed, the RFP stated in unequivocal language that "(t)he provider shall perform the following services as outlined below." (Emphasis added) Specifically, paragraphs 22 and 23 of Article III specified that the successful firm would Furnish to each candidate an unofficial grade report at the examination site at no additional cost to the candidate according to specifications approved by the Department. Maintain an office/center in the greater Orlando area. These two requirements, both unambiguous, were reasonably construed by participating vendors to mean that (a) the successful firm would furnish, at no cost to the candidate, on-site grade reports to those candidates who desired an unofficial grade after the examination was completed, and (b) the successful firm would maintain an office in the Orlando area to provide technical and other assistance to Commission and Division personnel regarding the examination. The interpretation as to paragraph 23 was especially reasonable since it conformed to clarifying information given to vendors at the pre-bid conference prior to the submission of proposals for RFP 91-009. Finally, despite DPR's contention to the contrary at hearing, the requirements in paragraphs 22 and 23 were considered material by the Division and Commission. From DPR's perspective, an important consideration was the costs to be charged both the candidate who sat for the examination and the candidate who made application but did not take the examination. This was because DPR's experience indicated that each year a large number of candidates apply for the examination but then fail to appear and sit for the examination. Indeed, during the most recent fiscal year of record, DPR had received 38,886 applications to take the various real estate and appraiser examinations but almost 3,000 did not appear. These figures were contained in RFP 91-009 and thus were available to all vendors, including AMP. Accordingly, DPR inserted a provision in the RFP directing each vendor to develop a cost schedule reflecting the cost for both the candidates scheduled for examination and the candidates who were actually examined. This material requirement was embodied in paragraph 1 of Article VI, which provided the following instructions to the vendors: The costs schedule for this proposal shall be priced on a per candidate examined for the first year and each of the option years provided. *Differences between the number of candidates scheduled for exam and the number of candidates examined shall be compensated for at a specific rate per candidate to be set forth by the provider.* (Emphasis added between *) The above provision was consistent with the manner in which the existing contract holder (PTS) had calculated its candidate costs for DPR during the preceding five years. Very simply, this meant that the proposal had to include one cost figure for candidates examined and another cost figure for scheduled candidates who did not appear. In calculating the costs for scheduled candidates, Appendix I, Section IV, page 3 of 3, required that all vendors develop a cost for services, including a "cost per candidate scheduled" to be made up of eight cost components: scan sheet costs, examination booklet production costs, scanning and microfilming costs, on-site grading costs, scoring costs, grade reporting/grade summary costs, security costs, and item bank maintenance costs. Therefore, each vendor was required to segregrate its costs per candidate into the eight prescribed categories, with the sum of those eight components representing the total costs per candidate scheduled. The Responses A copy of AMP's proposal filed on September 20, 1991, is found at pages 257 through 392 of petitioner's exhibit 1. In response to the requirement that the vendor give "evidence that the organization is a legal entity", AMP responded that it was a private stock corporation incorporated in 1982 in the State of Kansas. Although AMP represented that "a Certificate of Good Standing with the State of Kansas is available upon request," no such certificate was enclosed with its proposal. Documentation offered by PTS confirmed that AMP is not a Florida corporation, and there is no evidence to show that AMP, as an out- of-state corporation, has registered with the Department of State to transact business in the State of Florida. In its proposal, AMP provided an overall price "per candidate" but failed to differentiate between the costs incurred for candidates examined and candidates who were scheduled to take the examination but did not appear. This was contrary to the requirement in Article VI that such costs be identified for both categories and caused the proposal to be nonresponsive in a material respect. Although the RFP specifically required the vendor to set out eight cost components in developing the cost per candidate scheduled, AMP submitted nine specific costs as follows: 1. Test Development $3.72 2. Scan Sheet 0.10 3. Examination Booklet Production 2.47 4. Scanning 1.01 5. Scoring 1.05 6. Grade Tape Preparation 0.43 7. Security 0.32 8. Item Bank Maintenance 0.50 9. On-Site Grading 0.20 TOTAL $9.80 It should be noted that the first item, "Test Development" costs, which included 38 percent of AMP's total price, was not a category contained in or authorized by the RFP. Thus, the proposal was nonresponsive in this material respect. According to its proposal, AMP did not intend to maintain an office/center in the greater Orlando area. Rather, it proposed that: as an alternative to staffing an office in Orlando, AMP proposes to conduct regular monthly meetings in Orlando with the Division and key AMP project staff, typically the doctorate level Program Director and a Test Development Specialist. AMP will bring its portable computer equipment, and paper and computer files of the draft test and the item banks to these meetings. Any changes to examinations, as required by the Division, can then be immediately made in the draft tests and reviewed by the Division. It is AMP's opinion that this procedure will provide the Division with the direct responsiveness desired, and ensure efficient communication between the Division and the key project staff, without information being filtered through a lesser qualified individual in a satellite office. Additional urgent concerns can be discussed using the telephone or FAX equipment with the Program Director. (page 272, petitioner's exhibit 1) By filing this response, AMP contravened the material requirement in paragraph 23 of Article III that it maintain an office/center in the greater Orlando area. In response to the material requirement that it "furnish to each candidate an unofficial grade report at the examination site at no additional cost to the candidate according to specifications approved by the Department", AMP responded that it would: train the Department's test administration personnel to use this equipment to this end . . . . AMP's cost proposal is based on using the Department's personnel. If this is not possible, an additional per candidate fee will be determined based on using AMP personnel. Thus, AMP's response unilaterally modified the RFP requirement that AMP personnel rather than DPR personnel perform the task of providing unofficial grade reports at the examination site. Moreover, AMP's proposal did not state what its price per candidate would be if DPR enforced the RFP requirement. Under AMP's proposal, it calculated a cost of 20 cents per candidate for providing this service assuming DPR personnel were used. This was $2.27 less per candidate than the charge given by PTS ($2.47). Thus, AMP gained an economic advantage by its failure to provide on-site grading with its own personnel. Accordingly, this portion of the proposal was nonresponsive. The proposal of PTS was responsive to the RFP in all respects. This finding was not contradicted by DPR. It is noteworthy that two potential vendors, H. H. Block & Associates, Inc., a Gainesville, Florida firm, and Psychological Services, Inc., a firm located in Glendale, California, both advised DPR in writing that because of the requirement in the RFP that the successful vendor locate a center/office in the greater Orlando area, they would not be filing a proposal. The latter two vendors were obviously prejudiced by DPR's failure to advise them that it did not intend to enforce the requirement in paragraph 23 of Article III. This failure by DPR to enforce the provision also gave AMP an economic advantage over other vendors since AMP did not have to incur the costs of operating an Orlando office. The Evaluation Process The committee selected to evaluate the proposals was made up of six individuals appointed by the Secretary of DPR. It met in Tallahassee on September 30, 1991, to evaluate the proposals. The committee was chaired by Ella D. Hall, a DPR psychometrician. In accordance with the instructions in the RFP, the committee reviewed only the technical aspects of the proposals and did not review the cost data. Article IX of the RFP outlined the responsibilities of the evaluation committee and the procedure for evaluating proposals. Among other things, the committee was assigned the responsibility to: first determine if all required documents are included, that the proposal format is followed, and that all responses to the request's responsibilities of the provider are properly addressed. The cost data will not be reviewed as part of the technical evaluation. The committee utilized both a scoring guide and an evaluation guide in arriving at its recommendation. A total of 300 possible points were to be given to a vendor, of which 226 were related to technical matters. As noted above, the committee did not consider cost in its evaluation. Contrary to Article IX of the RFP, the committee did not initially determine whether the proposals were responsive. More specifically, the committee did not "first determine if all required documents (were) included, that the proposal format (was) followed, and that all responses to the request's responsibilities of the provider (were) properly addressed." According to the committee's chairperson, the committee was never told to determine if the proposals were responsive before evaluating them on their merits. Indeed, the chairperson assumed, albeit incorrectly, that someone else had previously evaluated the proposals in terms of responsiveness. As it turned out, none of the proposals were evaluated for responsiveness prior to or during the committee evaluation process. Through its chairperson, the committee issued a written report on October 9, 1991, recommending that AMP be awarded the contract. Although the committee considered the responses by AMP and PTS to be almost equal in terms of technical ratings, it gave a slight edge to AMP's proposal in the cost rating and recommended that AMP be awarded the contract. NAI was a very distant third in the evaluation process. Because of the committee's report, and AMP's announcement on October 16, 1991, as discussed below, that its price per candidate scheduled but not examined would be zero, the Commission voted 4-3 to endorse the committee's recommendation. The Secretary received the proposals in that posture. Events Occurring After the Committee Evaluation On October 4, 1991, or before the contract was awarded but after the committee evaluation was completed, AMP's president, Steven K. Bryant, sent a letter to the Secretary of DPR. The letter was received by DPR on October 9, 1991, and a copy of same has been received in evidence as petitioner's exhibit It provides in relevant part as follows: Dear Secretary Stuart: At the request of Lou Ritter, I am writing to you due to our concerns about the opportunity for our company to fairly compete for testing services business in your state. The recent rebidding of the Florida Cosmetology and Real Estate Programs have generated some serious questions in my mind as to whether or not it is in our interest to continue to respond to Florida RFPs. I hope you will investigate the following concerns and use the power of your office to correct these circumstances: The second RFP regarding real estate was clearly written to ensure that the current vendor retains the contract. The requirement that the vendor have an office in Orlando staffed by an individual whose only job would be to serve as a liaison with the Real Estate Commission makes it basically impossible for any organization based outside of the state of Florida to compete with the current vendor. An organization such as ours cannot afford to put a doctorate level individual in an office in Florida to be at the beck and call of the Real Estate Commission to answer examination development questions and economically survive. At best, we could put a clerical person in an office in Orlando who would be unable to answer any of the Commission's test development concerns. In our response to the RFP, we indicated that we would not establish an Orlando office, but would provide a doctoral level measurement expert and a test development specialist to meet once a month with the Real Estate Commission to revise the real estate examinations to their specifications using very highly qualified individuals. The second real estate RFP also requires that the examination booklets be printed and shipped to Florida examination centers within a seven day time frame, after the examinations are reviewed by the Real Estate Commission. This item was clearly written for the current vendor, which is basically photocopying examination materials as soon as the Commission provides approval on examination copy. There is no real reason why the examinations could not be reviewed and approved by the state to allow a longer time frame for printing, so that higher quality offset printed examination booklets could be prepared and shipped to Florida by a vendor residing out of state. In fact, we could provide several months of examinations in advance for the Commission's approval and avoid the crisis mode of printing which a seven day turnaround would cause. Although, we could provide the seven day turnaround through the use of overnight air carriers and the like, clearly the Real Estate Commission had in mind the current vendor when making this unreasonable requirement. * * * The letter also carries a handwritten note by the Secretary in the upper right hand corner which reads "Discussed with Lou Ritter/Steve Bryant - file 10/21". According to the Secretary, Ritter (a former Secretary of DPR) is now a consultant for AMP. The Secretary acknowledged that he spoke with Ritter and Bryant concerning the letter and advised them the agency was proceeding with the RFP. The Secretary's assertion that he followed up on the letter only to the extent that he wanted to ascertain if AMP had been unfairly penalized in the evaluation process was not contradicted. On October 16, 1991, Bryant sent a second letter on behalf of AMP to the Secretary of DPR. It read as follows: Dear Secretary Stuart: This is to confirm our telephone discussion regarding our price proposal for RFP #92-002 (sic) for Real Estate Examination Services. Since the RFP calls for AMP to provide examination booklets to the test centers the department administers, it was our intention to charge the state $9.80 per candidate tested, based on the number of answer sheets actually scored by AMP. Thus, there would not be a charge for candidates who do not appear for testing. Thank you for the opportunity to provide this information. Please let me know if there are any other questions. The above letter was solicted by the Secretary after he and Bryant spoke by telephone on or about October 15, 1991. The purpose of the letter was to allow AMP to clarify and amend its proposal which failed to include a cost for candidates who were scheduled to take the examination but did not appear. In contrast, neither PTS nor NAI were offered the opportunity to clarify or change their proposals after being filed. Thus, AMP was allowed to correct a material deviation from the terms of the RFP thereby giving it an advantage over its competitors. The contract was thereafter awarded to AMP on or about October 24, 1991. Summary of Errors in the RFP Process By failing to file evidence that it was a "legal entity", failing to file a cost per candidate scheduled but not examined, and submitting a price per candidate based on nine cost components rather than the prescribed eight, AMP failed to follow the proposal format required of all vendors by Article VIII. AMP's proposal was materially nonresponsive in four respects. First, it failed to differentiate between costs incurred for candidates examined and candidates who were scheduled but did not appear. Second, it utilized nine cost components in developing the cost per candidate scheduled instead of the eight components specified by the RFP. Third, in declining to establish an office in the greater Orlando area, AMP deviated from a material requirement. Fourth, contrary to the RFP, AMP proposed that DPR personnel rather than its own personnel provide unofficial grade reports to candidates at the examination sites. If this was unsatisfactory to DPR, AMP proposed to assess DPR an unspecified charge for providing this service. By waiving the enforcement of a material requirement (paragraph 23, Article III) after the proposals had been filed and evaluated, DPR gave a competitive advantage to AMP not enjoyed by other vendors. Further, by allowing AMP to correct a material variance from the RFP on October 16, 1991, as to the price charged for candidates scheduled but who did not take the examination, DPR gave a competitive advantage to AMP not enjoyed by other vendors. Collectively, these considerations support a finding that (a) the proposal submitted by AMP was materially nonresponsive and should be rejected, and (b) DPR created unfair competition and favoritism by waiving material requirements and allowing AMP to amend its proposal after being filed and evaluated.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is, RECOMMENDED that a final order be entered by respondent rejecting the proposal filed by Applied Measurement Professionals, Inc. in response to RFP 91- 002 and awarding the contract to one of the other vendors who filed a response. DONE and ENTERED this 3rd day of January, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of January, 1992. APPENDIX Petitioner: Partially adopted in finding of fact 1. Partially adopted in findings of fact 11, 12, 13 and 22. Partially adopted in findings of fact 6 and 7. Partially adopted in finding of fact 7. Partially adopted in findings of fact 2, 3 and 4. Partially adopted in finding of fact 24. Partially adopted in findings of fact 10 and 14. Partially adopted in findings of fact 7, 11, 17, 19 and 29. Partially adopted in findings of fact 11, 18 and 29. Partially adopted in findings of fact 12, 15, 28 and 29. Partially adopted in findings of fact 13, 16, 28 and 29. Respondent:* 1. Partially adopted in finding of fact 1. 2-3. Partially adopted in finding of fact 22. Partially adopted in findings of fact 1, 20 and 24. Partially adopted in finding of fact 24. Partially adopted in finding of fact 13. 6a. Partially adopted in findings of fact 3, 15 and 19. 6b. Rejected as being contrary to the evidence. 6c. Partially adopted in finding of fact 16. 7-8. Partially adopted in finding of fact 24. 9-10. Partially adopted in finding of fact 26. Partially adopted in findings of fact 10 and 14. Partially adopted in finding of fact 16. Partially adopted in finding of fact 17. The second sentence is specifically rejected as being contrary to the evidence. Partially adopted in finding of fact 16. Partially adopted in finding of fact 11. Partially adopted in finding of fact 18. Rejected as being unnecessary. * Respondent's proposed findings of fact included numbers 4, 5, 6, 4, 5, 6. Therefore, the second set of findings numbered 4, 5 and 6 have been renumbered 6a, 6b and 6c for purposes of this Appendix. Note - Where a proposed finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, redundant, or a conclusion of law. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Post Office Box 1116 Fort Lauderdale, FL 33302 Vytas J. Urba, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 George Stuart, Secretary Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact At all pertinent times, Timothy Vincent Jirgens has been licensed to carry a concealed weapon, holding license number CW 87-00606. He has made timely application for renewal of the license originally issued to him. Since September of 1988, Thomas E. Potts, doing business as Corporate Special Services, has employed respondent as an insurance investigator. Although Mr. Jirgens has not concealed weapons on his person in performing his assignments, he has kept a concealed weapon in his car. Mother Concerned On November 2, 1988, even though it was still early in the morning when he spoke by telephone to his mother in Ohio, Mr. Jirgens was already in his cups. Nor was he in a cheerful mood. The conversation alarmed his mother. Afraid her son might do himself harm, she telephoned the Pensacola Police Department, who dispatched Sgt. Cassidy and Officer Gardner to respondent's home on Barcia Street for a "welfare check." One of the two policemen Mr. Jirgens found when he answered the knocking at his apartment door asked him whether he had any weapons. A gun collector, he told them he had a "small arsenal." With the exception of a single, unloaded revolver lying on a coffee table, however, all of respondent's guns were locked in a safe, unloaded. The police officers did not ask for the guns, or make any request with which respondent failed to comply. Aware of his inebriation, they decided nevertheless that Mr. Jirgens would be all right. "[A]ssured that he was okay," (T.24) they left the premises. Police Return Perhaps because of a superior's reaction to their report, the policemen set out again, this time with the objective of gaining possession of the weapons in Mr. Jirgens' apartment. They stopped about a block away, where they set up a "command center." From their parked patrol car, they contacted Mr. Jirgens' girl friend, whose disaffection had perhaps inspired the drinking bout. They also got up with his roommate, who teaches music in an elementary school, called his mother and sister in Ohio, and enlisted other friends of Mr. Jirgens, in an effort to separate respondent from his gun collection, so that they could take possession of the weapons. As requested by the police officers, none of respondent's friends or relatives let on to Mr. Jirgens that the police were in any way involved in their concerted efforts to induce him to leave his apartment. The music teacher and other friends were in and out, talking to Mr. Jirgens then reporting to the policemen. But Mr. Jirgens "[h]ad absolutely no idea that the police were outside." T.74. Part of the time this was going on the front door to the apartment stood a quarter of the way open. At no time did Mr. Jirgens brandish a weapon. He never refused a direct request from any policeman to leave his apartment. None was made. In response to his friends' suggestions that he go outside, he eventually did. Twice Arrested As Mr. Jirgens left his apartment, Messrs. Cassidy and Gardner (one of whom handcuffed him) confronted him for the first time since their initial conversation. After seizing the guns in his apartment, they took him to University Hospital and left him in the custody of staff in the hospital's mental health ward, known as the Pavilion. About an hour later, the respondent left the ward, possibly through a broken window. Within an hour of the escape, Sgt. Cassidy found him leaving his apartment with a bag full of clothes, took him into custody again, and returned him to University Hospital's psychiatric ward. Judicial proceedings to accomplish involuntary placement were never initiated. After a two-day stay at the Pavilion, respondent was discharged. Later the Pensacola Police Department gave him hid guns back. At no time was respondent adjudicated incompetent. At least the second arrest occurred under the apparent authority of a certificate a clinical psychologist had executed. During their efforts to get Mr. Jirgens to leave his apartment, the police had summoned the psychologist, misinforming him that Jirgens had barricaded himself in his apartment.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent and renew respondent's license. DONE and ENTERED this 28th day of November, 1989, at Tallahassee, Florida. ROBERT T. BENTON, II 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 November, 1989. APPENDIX With respect to petitioner's proposed finding of fact No. 1, respondent filed the application on or about October 5, 1988. Petitioner's proposed findings of fact Nos. 2, 3, 4, 7 and 10 through 14 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 5, nobody in authority asked him to leave. With respect to petitioner's proposed finding of fact No. 6, respondent had only one, unloaded gun not under lock and key. Petitioners proposed finding of fact No. 8 is rejected. With respect to petitioner's proposed finding of fact No. 9, the evidence did not show that respondent agreed to be transported to a receiving facility. Respondent's proposed findings of fact have been adopted, in substance, insofar as material, except that it was not clear when Howell executed the certificate. COPIES FURNISHED: STEVEN J. BAKER, ESQUIRE BAKER & DUKE POST OFFICE BOX 66 15 WEST LARUA STREET PENSACOLA, FL 32591 MIMI DAIGLE, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF STATE DIVISION OF LICENSING THE CAPITOL, MAIL STATION #4 TALLAHASSEE, FL 32399-0250 =================================================================
Findings Of Fact 1..At all times pertinent to the issues herein, Respondent was licensed real estate broker in Florida. On February 23, 1983, Respondent, Francis N. Hector, entered a plea of nolo contendere to the offense of misapplication of funds by a contractor before Judge Edward Barfield, in the Circuit Court of Escambia County, Florida, in Case No. 82-5187. As a result of this plea, an adjudication of guilt and imposition of sentence were withheld and Respondent was placed on probation for a period of five years under standard terms imposed by the Department of Corrections and, in addition, conditioned upon his making restitution as directed by his probation supervisor and paying $150.00 court costs. Respondent did not notify the Florida Real Estate Commission of the entry of the court order within 30 days. However, on August 8, 1984, in his application for renewal of his license, Respondent did list the entry of the court order pursuant to his plea of nolo contendere and it was through this method that the commission became aware of the order. The plea of nolo contendere to a charge of misapplication of funds resulted from the Respondent's using some of the proceeds of a partial draw on a loan which he took out to develop a tourist center in the Pensacola area and for which collateral was the piece of property on which the center was being developed. The funds were used to pay bills not relating to the development of the center as required. When the situation first came to light, Respondent called in his creditors, explained the situation to them, and agreed to repay them in full. From that date on, he tried to settle with the creditors as he could by payment of case raised through the sale of property and equipment. At the time of the criminal proceedings, Respondent had paid off approximately three-quarters of the amount owed and by the time of this hearing, had completely repaid all creditors in full. At all times, Respondent was totally candid with his creditors and in no way attempted to conceal assets or defraud creditors. He pleaded nolo contendere to the charge even though he did not believe he had committed a criminal act and no one had lost any money by virtue of Respondent's misconduct. As to the failure to report the court action to the Real Estate Commission, Respondent admits he did not do so, but contends his reason for not reporting it was that he did not know that he had to. It was his understanding at the time of the entry of his plea that it would not affect his real estate license and, in fact, when he applied for renewal of his license, he listed the action on the application form. He, at all times, cooperated fully with the investigator of the Department of Professional Regulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Count I of the Administrative Complaint alleging a violation of Section 475.25(1)(f), Florida Statutes be dismissed, and that based on Respondent's violation of Section 475.25(1)(p), Florida Statutes, he be reprimanded. RECOMMENDED in Tallahassee, Florida, this 21st day of November, 1985. ARNOLD H. POLLOCK 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 21st day of November, 1985. COPIES FURNISHED: Arthur R. Shell, Jr., Esq. Department of Professional Regulation Division of Real Estate 400 W. Robinson Street Orlando, FL 32801 Thomas M. Brady, Esq. Attorney at Law 601 S. Palafox Street Pensacola, FL 32501 Harold Huff Executive Director Division of Real Estate Department of Professional Regulation P. O. Box 1900 Orlando, FL Fred Roche, SecretaryI Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated March 3, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for investigating complaints filed against registered, licensed, or certified real estate appraisers and for prosecuting disciplinary actions against such persons. § 455.225, Fla. Stat. (2005). The Florida Real Estate Appraisal Board ("Board") is the state agency charged with regulating, licensing, and disciplining real estate appraisers registered, licensed, or certified in Florida. § 475.613(2), Fla. Stat. (2005). At the times material to this proceeding, Mr. Rutan was a certified residential real estate appraiser in Florida, having been issued a license numbered RD 2791. Mr. Rutan had been a certified residential real estate appraiser in Florida for approximately 10 years. At the time of the events giving rise to this action, Mr. Rutan was employed by Excel Appraisal. Mr. Rutan interviewed and hired Frank Delgado, Juan Carlos Suarez, and Ricardo Tundador to work at Excel Appraisal as state-registered assistant real estate appraisers. At all times material to this proceeding, Mr. Rutan was Mr. Suarez’s supervisor and was responsible for Mr. Suarez’s appraisals. On or about June 16, 1999, Mr. Suarez prepared an appraisal for property located at 9690 Northwest 35th Street, Coral Springs, Florida, in which he valued the property at $325,000. The property is a multi-family, four-plex property. Mr. Rutan signed Mr. Suarez's appraisal as the supervisory appraiser and certified on the appraisal that he had inspected the property by placing an “X” in the "Inspect Property" box. The appraisal form signed by Mr. Rutan contains a "Supervisory Appraiser's Certification" that provides: If a supervisory appraiser signed the appraisal report, her or she certifies and agrees that: I directly supervise the appraiser who prepared the appraisal report, have reviewed the appraisal report, agree with the statements and conclusions of the appraiser, agree to be bound by the appraiser's certifications numbered 4 through 7 above, and am taking full responsibility for the appraisal and the appraisal report. It is the custom in the industry that a supervisory appraiser who certifies that he or she has inspected the property in question must inspect the property inside as well as outside before he or she can sign the appraisal. Mr. Rutan inspected the property the day after he signed the appraisal and only inspected the property from the outside. The appraisal report on the property at issue herein listed a prior sale of the property from Rodney Way to Doyle Aaron for $325,000 on April 28, 1999. The appraisal failed to list the sale of the property on the same day from Julius Ohren to Rodney Way for $230,000. Mr. Rutan did not investigate the relevant sales history of the property and was unaware, therefore, that the property had been “flipped” and was considerably overvalued in the appraisal report.2 Mr. Rutan admitted that he did not investigate prior sales and that the property was substantially overvalued. Mr. Suarez listed in the appraisal report three "comparable sales," that is, sales of properties similar in type and location to the property being appraised, to support the valuation of $350,000. The first comparable property used in the appraisal was property located at 4102 Riverside Drive, Coral Springs, which was listed in the appraisal report as being previously sold for $315,000. Earlier on the day that the Riverside Drive property was sold for $315,000, however, it had been sold for $185,000. Mr. Rutan failed to research and review the sales of the comparable properties that were included in Mr. Suarez's appraisal report, and the "comparable sale" of property on Riverside Drive was not properly used to value the property that was the subject of the appraisal report at issue herein. Mr. Suarez failed to make the proper adjustments in value on the Riverside Drive property based on the features of that property that were superior to the features of the subject property. The Riverside Drive property was located on a canal and should have had a negative adjustment with respect to the subject property, which was not on a canal. Mr. Suarez included a positive adjustment in the comparable sales data for the Riverside Drive property. Mr. Rutan failed to review the comparable property adjustments submitted by Juan Carlos Suarez for the appraisal of the subject property. Mr. Suarez overstated the rental income of the subject property in his appraisal report. Mr. Rutan failed to research and review the rental figures Mr. Suarez submitted. When Mr. Rutan was notified by Brokers Funding, a company that purchased the loans on the subject property, that there were problems with the appraisal done by Mr. Suarez, Mr. Rutan checked additional comparable sales and interviewed the tenants in the building. He also hired another appraiser to conduct an appraisal of the subject property. Based on his investigation and Mr. Salimino’s appraisal, Mr. Rutan discovered the problems in Mr. Suarez's appraisal and report of the subject property. Mr. Salimino’s appraisal for the subject property was $290,000, but Mr. Rutan estimated that his appraisal would have been approximately $250,000. Mr. Rutan fired Mr. Suarez, as well as Frank Delgado, and Ricardo Tundador, all three of whom were subsequently indicted on federal charges relating to real-estate-appraisal scams. In a Final Order entered on April 22, 2002, Mr. Rutan was found guilty by the Board of violating Sections 475.624(14) and 475.624(15), Florida Statutes, and was ordered to pay an administrative fine of $1,000. Mr. Rutan trusted Mr. Suarez to do an honest and competent appraisal and was rushed by Mr. Suarez to approve the appraisal on the subject property. The evidence presented by the Division is sufficient to establish with the requisite degree of certainty that Mr. Rutan failed to carry out his responsibilities as Mr. Suarez's supervisory appraiser, failed to review Juan Carlos Suarez’s appraisal for accuracy, and failed to inspect the inside of the subject property, which caused or contributed to the substantially over-stated valuation of the subject property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Appraisal Board enter a final order finding that William Rutan is guilty of violating Section 475.624(10), (14), and (15), Florida Statutes, as alleged in Counts I through IV of the Administrative Complaint and revoking Mr. Rutan's Florida certification as a real estate appraiser. DONE AND ENTERED this 31st day of August, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2005.
