The Issue The issue for disposition is whether Central Florida Wetlands Society's petition in case number 91-6871 should be dismissed as requested by Kirkman Orlando Partners, LP (KOP). More specifically, it must be determined whether the Heritage Florida Jewish News is a "newspaper of general circulation", and, if so, whether any circumstances exist that would excuse the Society's failure to file its petition within the 21-day period specified in a notice published in that newspaper. BACKGROUND MATTERS As stipulated by the parties, the evidence in this proceeding has been presented primarily by affidavits. Michael Mingea testified on behalf of the Central Florida Wetlands Society, but his testimony was generally argument with regard to the Society's position and restatements of matters presented in his petition and letters. His testimony has been considered, with the affidavits filed by the remaining parties and his letters, furnished to the other parties, have been considered with the remaining parties' briefs and memoranda. A separate order is being entered this same day with regard to the City of Orlando's motion for extension of time to file petition and Kirkman Orlando Partners LP's motion to dismiss or strike, in DOAH case number 91-8017.
Findings Of Fact On September 13, 1991, Kirkman Orlando Partners LP (KOP) and the Florida Department of Environmental Regulation (DER) entered into a consent order with regard to an enforcement action by the agency involving dredging and filling of wetlands in Orlando, Orange County, Florida. The consent order includes this requirement: 14. Respondent shall publish the following notice in a newspaper of general circulation in Orange County, Florida. The notice shall be published one time only within 10 days after execution of the Consent Order by the Department. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION NOTICE OF PROPOSED AGENCY ACTION The Department of Environmental Regulation gives notice of agency action of entering into a Consent Order with KIRKMAN ORLANDO PARTNERS LP, a/k/a KIRKMAN ORLANDO PARTNERS LTD., pursuant to Rule 17-103.110(3), Florida Administrative Code. The Consent Order addresses the dredging and filling of certain wetlands without a required permit in Sections 6 and 7 of Orange County generally east of Kirkman Road and north of L.B. McLeod Road. The Consent Order is available for public inspection during normal business hours, 8:00 to 5:00 p.m., Monday through Friday except legal holidays, at the Department of Environmental Regulation, Central District Office, 3319 Maguire Boulevard, Suite 232, Orlando, Florida 32803. Persons whose substantial interests are affected by the above proposed agency action have a right to petition for an administrative determination (hearing) on the proposed action. The Petition must contain the information set forth below and must be filed (received) in the Department's Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400, within 21 days of receipt of this notice. A copy of the Petition must also be mailed at the time of filing to the (persons named) above at the address indicated. Failure to file a petition within the 21 days constitutes a waiver of any right such person has to an administrative determination (hearing) pursuant to Section 120.57, F.S. The petition shall contain the following information: The name, address, and telephone number of each petitioner; the Department's identification number and the county in which the subject matter or activity is located; A statement of how and when each petitioner received notice of the Department's action or proposed action; (c) A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; (d) A statement of the material facts disputed by petitioner, if any; (e) A statement of facts which petition contends warrant reversal or modification of the Department's action or proposed action; and (g) A statement of the relief sought by petitioner stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process is designed to formulate agency action. Accordingly, the Department's final action may be different from the position taken by it in this Notice. Persons whose substantial interest will be affected by any decision of the Department with regard to the subject agency (proposed) action have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 21 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed. A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, F.S. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the Order to be reviewed. Respondent shall provide proof of publication to the Department within fourteen days of publication. (Consent order filed at DOAH 10/29/91. emphasis added) The required notice was published in the September 20, 1991 edition of Heritage Florida Jewish News (Heritage). The filing deadline was, therefore, Friday, October 11, 1991, 21 days after the notice was published. As reflected above, the notice clearly provides that filing means "received" by the agency and that failure to file constitutes a waiver of right to an administrative hearing. On September 25, 1991, Doug MacLaughlin, Esquire, Counsel for DER, sent a letter to Randall Denker, Esquire stating: Enclosed as you requested is a copy of the Consent Order as referenced above. Also enclosed is a copy of the public notice published on September 20, 1991, in the Heritage Florida Jewish News, also enclosed. Note that the published public notice allows affected parties 21 days from September 20 to petition for a hearing. Assuming that this is considered adequate public notice, this 21 day newspaper deadline would apply to any of your clients interested in this matter. (letter filed at DOAH 1/7/92) Ms. Denker represents Central Florida Wetlands Society (CFWS) in a civil proceeding related to the activities that are the subject of the consent order. CFWS received actual notice of the proposed agency action. As stated in Michael Mingea's letter to the hearing officer filed at DOAH on January 6, 1992: ...[W]e feel the decision regarding your ruling on the acceptability of the Heritage Jewish News is unnecessary because the Society received actual notice of proposed agency action from DER's attorney, Mr. MacLaughlin, stating that we had a certain number of days to submit a Petition for an Administrative Hearing and we submitted a Petition within that time-frame. Therefore, we feel that DER's letter of actual notice supersedes any published notice in the Heritage Jewish News. A petition for formal administrative proceeding, signed and verified by Michael Mingea, President, CFWS, was filed (received) by the DER Office of General Counsel on October 14, 1991. The City of Orlando filed a motion for extension of time to file petition on November 12, 1991. DER's Central District Office in Orlando, the office responsible for administration of the consent order, has taken the position that Heritage is not a newspaper of general circulation. George Gionis, Program Administrator for the Water Management Division in DER's Central District Office has informed KOP of his concern, but no one from DER has insisted or suggested that the notice should be republished in another newspaper in order to comply with the consent order. The Heritage has been published weekly for more than 15 years on a continuous basis. It has a circulation of approximately 3000 on a regular basis, up to approximately 7000 for certain issues. The population of Orange County is approximately 701,000. The newspaper is entered as second class mailing at the post offices in both Orange and Seminole Counties. It contains at least 25% of its words in the English language. The four issues filed at the Division of Administrative Hearings, and included as evidence in this proceeding, are dated February 1, 1991; May 10, 1991; June 21, 1991; and September 20, 1991. All of the words in those issues are in English. Substantially less than 50% of the newspaper is devoted to classified advertisements. The classifieds include legal notices from the Ninth (Orange County) and Eighteenth (Seminole County) Judicial Circuits. Legal notices by the Florida Department of Professional Regulation (DPR) are also found in the classified section. (See February 1, 1991 edition containing notices of action by DPR's Board of Funeral Directors and Embalmers, Board of Construction, and Board of Cosmetology.) Even though the newspaper is not sold at any of the three newsstands listed in the yellow pages of the Orlando telephone book, it is offered for sale to the public generally. The newspaper is available for purchase by the public through subscription and at the Jewish Community Center in Maitland and the newspaper office in Fern Park. It is available to the public at the Orlando and Maitland public libraries. The newspaper's masthead recites: HERITAGE Florida Jewish News (ISN 0199-0721) is published weekly for $22.26 ($21 plus $1.26 Fla. sales tax) per year to Florida addresses ($25 for the rest of the U.S.) by HERITAGE Central Florida Jewish News, Inc., 207 O'Brien Road, Suite 101, Fern Park, FL 32730. Second-class postage paid at Fern Park and additional mailing offices. The Heritage customarily contains information of a public character or of interest or value to the general public and residents and property owners in Orange and Seminole Counties. The four editions referenced above include a 12-page fashion section, a 20- page health and fitness section, short articles on central Florida businesses, and articles on elder care and child care. Most of the news articles, local, national and international, relate to Israel or to issues involving Jewish people. For example, the lead headline in the February 1, 1991, edition reads, "Iraqi Missile Attacks have left thousands of Israelis homeless". Another article in that edition reports on U.S. Representative Jim Bacchus' commendation of Israel on the floor of the House. As the attention of the general public was riveted to events in the Persian Gulf in early 1991, it is likely that the same or similar articles appeared in newspapers throughout the state and county. Examples of front page headlines from other editions include, "Israelis racing against the clock to get remaining Jews out of Ethiopia"; "Congress urged to press Syria to let its 4,000 Jews emigrate"; "Federation allocates $81,377 to local agencies from 100 Days Combined Jewish Appeal Campaign"; and "Ethiopians adjust to new lifestyle".
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department enter its Final Order dismissing the petition of Central Florida Wetlands Society as untimely. DONE and RECOMMENDED this 24th day of January, 1992, 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 24th day of January, 1992. COPIES FURNISHED: Douglas H. MacLaughlin, Esquire Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Charles Tunnicliff, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0740 Debra Braga, Esquire City of Orlando 400 S. Orange Avenue Orlando, FL 32801 Michael Mingea Central Florida Wetlands Society P.O. Box 690218 Orlando, FL 32896 Nicholas A. Pope, Esquire Lowndes, Drosdick, et al. 215 N. Eola Drive Orlando, FL 32801 P. Hugh Trees, Esquire Robert T. Rosen, Esquire 1051 Winderley Place Maitland, FL 32751 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact On May 29, 1985, The Columbus Company submitted a bid to construct a rest area along I-95 in accordance with the specifications for State Job No. 70225-3410. The bid documents required the bidders to have 10 percent subcontractors from DBEs or submit documentation with the bid to show good faith efforts to meet this 10 percent requirement were made if the 10 percent goal is not met. Respondent maintains a list of businesses qualifying as DBEs and periodically publishes a directory of those firms so qualifying. This latest directory published by DOT prior to the bid opening on the contract at issue here was April 15, 1985. Respondent's Bureau of Minority Affairs maintains a current register and will advise any bidder so requesting whether of not a firm qualifies as a DBE or WBE. The invitation to bid provides the contractor's bid submission shall include the following information: The names and addresses of certified DBE and WBE firms that will participate in the contract. Only DBEs and WBEs certified by the Department at the time the bid is submitted may be counted towards DBE and WBE goals. A description of the work each named DBE or WBE firm will perform. The dollar amount of participation by each named DBE and WBE firm. If the DBE or WBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. Oscar Pope was Petitioner's estimator on this bid and prepared the bid which was submitted. Pope sent letters to various DBE firms soliciting their participation as subcontractors in the project and put ads in the newspaper. Prior to submitting the bid Pope realized that he did not have the required 10 percent DBE participation and he contacted another company to inquire where he could get additional minority participation from truckers and was referred to UPF Trucking. Pope contacted UPF Trucking and Billy Montgomery of UPF told Pope that UPF could qualify as a MBE. Pope did not check the directory or call DOT to verify UPF Trucking's status as a MBE. In his bid submitted, which included DBE/WBE utilization form No. 1, Pope listed UPF Trucking as being certified by Florida DOT as a MBE. Including the subcontract Petitioner entered into with UPF Trucking brought the MBE participation to the 10 percent goal required by the contract and no documentation was submitted to demonstrate Petitioner had made good faith efforts to reach the required DBE goals but could not do so. Upon the opening of the bids for this project, Petitioner was the low bidder. When the MBE participation listed in the bid was checked, UPF Trucking was found to be not qualified as a MBE firm. UPF Trucking was not listed in the April 15, 1985, directory of qualified minority businesses or on any approved list maintained by DOT. Had Pope called DOT before submitting Petitioner's bid, he could have learned UPF Trucking was not a qualified MBE. Petitioner's bid was forwarded to DOT's technical review committee and good faith efforts committee and both of these committees recommended the bid be found non-responsive because of the failure to meet the DBE goal. The bid was declared non-responsive and the contract was awarded to the next lowest bidder.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: At all times material hereto, the Respondent held teaching certificate number 498171, issued by the Department of Education for the State of Florida. The Respondent's teaching certificate covers the areas of mathematics and physics. The Respondent was hired in mid-October of 1984 to teach chemistry and physics for the 1984-85 academic year at Pompano Beach High School. During a science experiment at a fifth period advanced physics class on December 19, 1984, a student asked Respondent if alcohol could be brought to the class Christmas party scheduled for December 20, 1984. The Respondent replied that students could bring alcohol but that hard liquor would not be allowed. Prior to December 20, 1984, the Respondent announced to his third period class that there would be a party during his fifth period class on December 20, 1984, and that students who wished to come to his fifth period class to participate in the party would be permitted to do so. The Respondent stated that, if necessary, he would write "passes" for students who wanted to attend. On December 19, 1984, the Respondent announced to his seventh period class that some of his other classes were having parties the following day and that they too could have a party on December 20, 1984, and could bring beer if they wanted to do so. On December 20, 1984, the Christmas party in Respondent's fifth period class went on as scheduled. During the fifth period class, several students took a collection for money which was to be used to purchase beer. After the money was collected, the Respondent allowed the students to leave the class in order to purchase the beer. The students later returned with a case of Budweiser beer in a duffle bag. Approximately seventeen students participated in drinking the beer. The Respondent also drank one of the beers. During the party, there were several students in the classroom who were not assigned to the fifth period class, but were in other classes. While the party was taking place, the Respondent permitted the doors of the classroom to be locked and the window panes in the doors to be covered with paper so as to avoid detection from other faculty members and/or members of the administration. Nevertheless, the fifth period Christmas party was interrupted by the assistant principal and a security guard. As a result of the fifth period Christmas party, seventeen students were suspended. None of the students in the Respondent's fifth period class were of legal age to either possess or consume alcoholic beverages. On January 7, 1985, after an investigation had been completed through the office of the associate superintendent for personnel, the Respondent submitted his letter of resignation. This letter of resignation was accepted by the Broward County School Board. Pursuant to School Board policy, a student is allowed to be out of the class to which he is assigned only if he is called from one of the offices on the intercom to report to a different place. Pursuant to School board policy, if a teacher allows a student to leave the campus, the teacher is required to have the student sign in and out at the assistant principal's office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that JERRY JULIUS GOLD's teaching certificate be permanently revoked. DONE and ORDERED this 15th day of September, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 September, 1986. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Jerry Julius Gold, pro se Post Office Box 941 Nederland, CO 80466 Honorable Ralph D. Turlington Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Judith Brechner General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Karen Barr Wilde Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301 Marlene Greenfield Administrator Department of Education Professional Practices Services 319 West Madison Street, Room #3 Tallahassee, Florida 32301
Findings Of Fact Respondent, Florida Department of Transportation (DOT), is required by state and federal law to ensure that 10 percent of state and federal funds available for construction, design and consulting service-contracts be provided as an opportunity to small business concerns owned and controlled by socially and economically disadvantaged individuals (DBE). DBE contract goals are established by DOT for each construction contract. Every bidder must submit a form to DOT which either documents compliance with the DBE contract goal or, if compliance is not met, must provide sufficient information to demonstrate that good faith efforts were made by the bidder to meet the goal. Prior to June 1984, DOT's practice allowed contractors ten days after the bid letting to correct their DBE forms or to submit their good faith effort documentation. However, effective May 23, 1984, DOT adopted Rule 14- 78.03(2)(b), F.A.C., which provides in pertinent part: 4. For all contracts for which DBE . . . contract goals have been established, each bidder shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE . . . participation information shall be submitted with the contractor's bid proposal. Award of the contract shall be conditioned upon submission of the DBE . . . participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. Failure to satisfy these requirements shall result in a contractor's bid being deemed nonresponsive and the bid being rejected. (Emphasis supplied.) In August 1984, subsequent to the adoption of Rule 14.78.03(2)(b)4., F.A.C., DOT sent a "Notice to All Contractors" which advised . . . all submittals for evaluating Good Faith Efforts in meeting DBE/WBE goals must be submitted with the bid proposal in order to be considered for award of the contract. Failure to submit the Good Faith Effort documentation with the bid may result in rejection of the bid. Petitioner, Wiley N. Jackson Company, acknowledges receipt of the "Notice to All Contractors." By notice dated August 30, 1984, contractors were advised that sealed bids would be received until 10:30 a.m., September 26, 1984, on various road projects. The bid documents advised that the DBE goal for Job Number 89095-3411 was 10 percent. The specifications for Job Number 89095-3411 contain extensive provisions with regard to compliance with the DBE contract goals. Among these provisions is the following language contained in Section 2-5.3.2. For all contracts for which DBE and/or WBE contract goals have been established, each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the Contractor's bid proposal. Award of the Contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals, or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. The Contractor's bid submission shall include the following information (Submitted on Form No. 141-12 - DBE/WBE Utilization Form No. 1): The names and addresses of certified DBE and WBE firms that will participate in the contract. Only DBEs and WBEs certified by the Department at the time the bid is submitted may be counted toward DBE and WBE goals. A description of the work each named DBE and WBE firm will perform. The dollar amount of participation by each named DBE and WBE firm. If the DBE or WBE goal is not met, sufficient information to demonstrate that the Contractor made good faith efforts to meet the goals. (Emphasis supplied.) The specifications list, as grounds for disqualification of bidders, failure to satisfy the requirements of Section 2-5.3. Further, Section 2-5.3.3 of the specifications advised bidders that: In evaluating a contractor's good faith efforts, the Department will consider: Whether the Contractor, at least seven days prior to the letting, provided written notice by certified mail, return receipt requested, or hand delivery, with receipt, to all certified DBEs and WBEs which perform the type of work which the Contractor intends to subcontract, advising the DBEs and WBEs (a) of the specific work the Contractor intends to subcontract; (b) that their interest in the contract is being solicited; and (c) how to obtain information about and review and inspect the contract plans and specifications. Whether the Contractor selected economically feasible portions of the work to be performed by DBEs and WBEs, including where appropriate, breaking down contracts or combining elements of work into economically feasible units. The ability of a contractor to perform the work with its own work force will not in itself excuse a contractor's failure to meet contract goals. Whether the Contractor provided interested DBEs or WBEs assistance in reviewing the contract plans and specifications. Whether the DBE or WBE goal was met by other bidders. Whether the Contractor submits all quotations received from DBEs or WBEs, and for those quotations not accepted, an explanation of why the DBE or WBE will not be used during the course of the contract. Receipt of a lower quotation from a non-DBE or non-WBE will not in itself excuse a contractor's failure to meet contract goals; provided however, a contractor's good faith efforts obligation does not require a contractor to accept a quotation from a DBE or WBE which exceeds the lowest quotation received from any subcontractor by more than one percent. Whether the Contractor assisted interested DBEs and WBEs in obtaining any required bonding, lines of credit, or insurance. Whether the Contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs. Whether the Contractor's efforts were merely pro forma and given all relevant circumstances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals. Whether the Contractor has on other contracts within the past six months utilized DBEs and WBEs. The above list is not intended to be exclusive or exhaustive and the Department will look not only at the different kinds of efforts that the Contractor has made but also the quality, quantity and intensity of these efforts. Sections 2-5.3.2 and 2-5.3.3 are drawn directly and literally from Rule 14-78.03(2)(b). Consequently, all bidders were apprised by rule and bid specifications that if the DBE contract goal could not be met, sufficient information had to be submitted with their bid to demonstrate their good faith efforts to meet the goal, and the criteria that would be utilized to evaluate their efforts. On September 26, 1984, Petitioner submitted the low bid in the amount of $7,688,271.91 for Job Number 89095-3411. Attached to the bid was Form 141-12 - DBE/WBE Utilization Form No. 1, indicating that Petitioner's proposed utilization of DBEs was 0.2 percent of the total contract amount; $15,385 on a total bid of $7,688,271.91. Accompanying Petitioner's bid was a handwritten letter which stated: Gentlemen: To demonstrate good faith effort prior to the bid date for this project, we submitted seventy-three registered letters to prospective D.B.E. Subcontractors. On the major items we propose to sublet, comparative D.B.E. and non-D.B.E. quotations were received as follows: Box Culvert - J. E. Hill (D.B.E.) - 505,762.00 Shelton & Son - 369,092.00 Difference - $136,670.00 Fencing - Mikell (D.B.E.) - 55,727.00 Cyclone - 46,833.00 Difference - $ 8,894.00 Grassing - Mikell (D.B.E.) - 91,919.00 Agricultural Land - 63,198.00 Difference - $28.721.00 In view of the above, we are unable to meet the D.B.E. Goal and, at the same time, submit a realistic and competitive bid. Copies of pertinent quotations are attached and copies of D.B.E. solicitations (registered letters) and responses are available for your review. Quotations reflecting one unaccepted DBE proposal, and one accepted non-DBE proposal, in each of three areas--concrete, fencing and grassing--were attached to the letter. In each instance the DBE proposal exceeded the non-DBE proposal by more than one percent. No other documentation was submitted with Petitioner's bid to demonstrate its good faith efforts to meet the DBE contract goal. Respondent, Dickerson Florida, Inc. (Dickerson), was the second low bidder with a bid of $7,926,819.49. Dickerson's bid reflected a DBE participation of 10.8 percent. Upon the closure of bidding, Petitioner's bid was submitted to the Good Faith Effort Committee at DOT to evaluate the information contained in the bid to determine whether Petitioner's documentation evidenced a good faith effort to meet the DBE goal. That committee found Petitioner's bid documentation failed to demonstrate a good faith effort to meet the DBE goal, and recommended that Petitioner's bid be declared non-responsive and be rejected. DOT declared Petitioner's bid non-responsive and rejected its bid. DOT proposed awarding the contract to Dickerson. Petitioner's bid documentation failed to demonstrate a good faith effort to meet the DBE contract goals. The documentation failed to demonstrate that: (1) Petitioner, at least seven days prior to letting, had provided written notice to all certified DBEs, or, of what the DBEs had been informed, (2) Petitioner had selected economically feasible portions of the work to be performed by DBEs, (3) Petitioner had provided interested DBEs with assistance in reviewing the contract plans and specifications, and (4) Petitioner had selected for subcontract types of work that matched the capabilities of the solicited DBEs. Further, Petitioner's documentation did not include all quotations received from DBEs. Job Number 89095-3411 included several categories of work: box culverts, signs, landscaping, guardrail, fencing, traffic striping, trucking, paving, grading and miscellaneous concrete. The bid documentation submitted by Petitioner did not indicate the items it attempted to subcontract, nor what efforts, if any, it had expended to solicit DBE participation beyond "a letter" it had mailed, at an indeterminate date, to some 73 unidentified "prospective DBE subcontractors." Facially, Petitioner's documentation evidenced a pro forma effort. Subsequent to the bid closing, Petitioner forwarded to DOT copies of the 73 letters it had mailed to "prospective DBE subcontractors," together with the certified mail return receipts. Petitioner was in possession of these documents prior to the close of bidding, and could have submitted them with its bid. DOT's Good Faith Effort Committee declined to consider Petitioner's postbid submission. The committee interpreted Rule 14-78.03, F.A.C., to require the DBE participation information be submitted with the bid proposal, and to preclude consideration of postbid submissions. DOT has at all times acted consistently with this interpretation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Department of Transportation rejecting the bid submitted by Petitioner, Wiley N. Jackson Company, on State Project No. 89095-3411, Martin County, Florida, and awarding the contract to Respondent, Dickerson Florida, Inc. DONE and ENTERED this 31st day of May, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of May, 1985. COPIES FURNISHED: David T. Knight, Esquire Shackleford, Farrior, Stallings and Evans, P.A. Post Office Box 3324 Tampa, Florida 33601 Larry D. Scott; Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Robert M. Ervin, Esquire Thomas M. Ervin, Jr., Esquire Ervin, Varn, Jacobs, Odom & Kitchen Post Office Drawer 1170 Tallahassee, Florida 32302 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issues in this proceeding are whether Gilbert’s bid proposal was responsive to the Department of Transportation’s bid proposal, and whether the Department of Transportation (Department) erred in accepting the bid of Gilbert. State alleged that Gilbert failed to comply with the DBE bid information submittal requirements of Rule 14-78.003(2)(b)3.a., Florida Administrative Code, in filing the DBE forms for the project.
Findings Of Fact State and Gilbert, among other prequalified bidders, submitted timely bids for State Project No. 86075-3423/03175- 3426, which involves the replacement of toll plazas on State Road 93 (also known as Alligator Alley) in Collier and Broward Counties. The project has been referred to in this proceeding as “the Alligator Alley project.” (Agreed Facts) The Department has adopted Rule Chapter 14-78, F.A.C., to govern utilization of DBE’s on state and federally funded construction projects. The specifications for the Alligator Alley project also include Special Provisions for Disadvantaged Business Enterprises, which incorporate many of the requirements of Rule 14-78.003, Florida Administrative Code. Consistent with Chapter 14-78, Florida Administrative Code, and the Special Provisions, the Department assigned Disadvantaged Business Enterprise (DBE) goals to the Alligator Alley project requiring bidders to subcontract 4% of the work to black DBE’s and 8% of the work to non-minority women DBE’s. (Agreed Facts) State and Gilbert submitted their sealed bid packages to the Department before the advertised deadline for bids, 10:30 a.m. on August 28, 1996. A Department review of the amounts bid showed that Gilbert was the apparent low bidder, submitting a bid totaling $9,153,215.07, while State was the apparent second-low bidder, submitted a bid totaling $9,566,051.25. (Agreed Facts) Consistent with Rule 14-78.003(2)(b)3., Florida Administrative Code, and the bid specifications, bidders were permitted to submit DBE Utilization Summary Forms and DBE Utilization Forms within 72 hours after submittal of their bid packages. State and Gilbert timely submitted DBE Utilization Summary Forms, showing the total amount committed to be subcontracted to DBE’s in order to meet each of the DBE goals set for the contract. The two companies also timely submitted DBE Utilization Forms that purported to commit each bidder to subcontract with DBE’s in amounts that totaled those shown in the DBE Utilization Summary Forms. (Agreed Facts) Gilbert’s DBE Utilization Summary Form stated that Gilbert would subcontract $369,000 (or 4% of its total bid) to black DBE’s and $734,600 (or 8% of its total bid) to non-minority women DBE’s. State’s DBE Utilization Summary Form stated that State would subcontract $400,000 (or 4% of its total bid) to black DBE’s and $800,000 (or 8% of its total bid) to non-minority women DBE’s. (Agreed Facts) The Special Provisions of the bid specifications that address the DBE Forms provide as follows: The contractor’s submission shall include the following information (submitted on Form Nos. 275-020-003 Utilization Summary and 275-020- 004 Utilization Form): The names, addresses of certified DBE firms that will participate in the contract. Only DBEs certified by the Department at the time of the bid may be counted toward DBE goals. A description of the work each named DBE firm will perform. The dollar amount of participation by each named DBE firm. If the DBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. (Agreed Facts) [Emphasis Supplied] Gilbert submitted DBE Utilization Forms for each of its DBEs stating the DBE’s name, address, telephone number, the signature of the DBE or authorized individual. Gilbert submitted a DBE form for Alco Trucking, a firm owned by a Black male, which stated the value of the subcontracting work to be done as $369,000 without reduction or qualification, and stated regarding the work to be done as follows: Item No. Description of Work (Note if item qualifies for supplier) Various Hauling, aggregates, fill, on site trucking Gilbert submitted a DBE form for Swiftline Trucking, a firm owned by a non-minority female, which stated the value of the subcontracting work to be done as $82,200, without reduction or qualification, and stated regarding the work to be done as follows: Item No. Description of Work (Note if item qualifies for supplier) Various Hauling, aggregates, fill, on site trucking Gilbert submitted a DBE form for Jayalden Enterprises, a firm owned by a non-minority female, which stated the value of the subcontracting work to be done as $264,000, without reduction or qualification, and stated regarding the work to be done as follows: Item No. Description of Work (Note if item qualifies for supplier) 735-74-A Toll Plaza (Partial) 735-74-B Toll Plaza (Partial) Gilbert submitted a DBE form for Precision Contracting, a firm owned by a non-minority female, which stated the value of the subcontracting work to be done as $305,000, without reduction or qualification, and stated regarding the work to be done as follows: Item No. Description of Work (Note if item qualifies for supplier) 544-75-5 Impact Attenuator Vehicular (Partial) 102-1-A MOT (Partial) On each DBE form, Gilbert filled in the line for an “amount to be paid to DBE Subcontractor” and the total committed “toward the DBE goal,” but did not fill in the line for “Amount to be paid to DBE Supplier.” (Agreed Facts) State submitted DBE Utilization Forms for each of its DBEs stating the DBE’s name, address, telephone number, the signature of the DBE or authorized individual. State submitted a DBE form for Metro Engineering Constractors, Inc., a Black owned business, which stated the value of the subcontracting work to be done as $400,000 without reduction or qualification, and stated as follows: Item No. Description of Work (Note if item qualifies for supplier) 120-6 Embankment and 285-701 Limerock Base and Haul & Supply Materials 285-709 Limerock Base and Earthwork State submitted a DBE form for Freedom Pipeline Corporation, a non-minority female owned business, which stated the value of the subcontracting work to be done as $800,000 without reduction or qualification, and stated as follows: Item No. Description of Work (Note if item qualifies for supplier) 121-70 Flowable Fill 400-1-2 Class I Concrete Endwalls through Storm Drainage 514-71-3 Plastic Filter Baric (Riprap) and 1513120-118 Pipe Ductile Iron Pusyh on Joint 8” and 415-1-3 Reinforcing Steel Retaining Walls Retaining Walls and 635-1-11 Pull & Junction Boxes through Sewer & Water 1648100-7 Misc Water Fixt Blow Off Assy 285-701 Limerock Base and Haul & Supply Materials 285-709 Limerock Base and Earthwork State indicated on its DBE forms that both contractors were suppliers of materials and indicated that the total amount of the contract in both cases was to go to the DBE contractor. The Department’s Minority Programs Office is responsible for the implementation of the Department’s DBE program and reviews the DBE Utilization Forms submitted with bids. Kenneth Sweet, who is employed in the Minority Programs Office, had responsibility for reviewing Gilbert’s DBE Utilization Forms and determined that they complied with Rule 14-78.003(2)(b)3.a., Florida Administrative Code, and the Special Provisions of the bid specifications addressing DBE’s. The Department did not contact Gilbert or any of the DBE’s listed on Gilbert’s forms to confirm or obtain clarification of the information stated thereon. (Agreed Facts) The Department posted the bid tabulations for the Alligator Alley project, showing an award to Gilbert as the lowest responsive bidder. State filed its Notice of Protest with the Department’s Clerk of Agency Proceedings on September 23, 1996, 1996, and filed its Formal Protest on October 2, 1996. After this matter was referred to the Division, Gilbert filed its Petition to Intervene on October 22, 1996, which was granted on October 25, 1996. (Agreed Facts) It was stipulated that all of the DBE’s reflected in the DBE Utilization Forms submitted by Gilbert and State were certified DBE’s. (Agreed Facts) Gilbert’s DBE Utilization Forms were submitted to the Minority Programs Office within 72 hours after the project letting and the forms were signed by DBE representatives. The Department is dependent upon the accuracy of the information provided by the bidders to assess DBE participation. Gilbert and one of its DBE’s did not have the identical understanding of the exact scope of the work to be performed by the DBE which might impact how much of the value of the contract would be credited for DBE participation; however, there is no evidence of collusion or fraud in any of the quotes. The Department credits 60% of the value of a contract when the DBE contractor is a supplier of materials, and 100% of the value of the contract when the DBE Contractor furnishes and installs the materials designated as furnish and install items in the specifications. The toll booths and attenuators were not furnish and install items. Gilbert included 100% of the value of the contracts with Alco, Swiftline, Precision and Jayalden as DBE participation. The Department accepted Gilbert’s representations as presented in its DBE forms without questioning what services were being performed or provided by these DBE Contractors. Ken Sweet of the Department’s DBE programs office testified. The Department's justification for not examining the DBE proposals more closely was that the Department requires the prime contractor to adhere to the amount of the DBE work as presented in the forms. While this may be sufficient to maintain the integrity of the DBE program, it is insufficient review to insure that the contractor has complied with the rules for crediting DBE participation and to insure the competitiveness of the bid process. Although Gilbert asserted at hearing that its subcontractors, Swiftline and Alco, would be supplying and placing the materials, it did not so state in its forms. The forms for Alco and Swiftline said, "hauling, aggregates, fill, and on site trucking." There was no basis for the Department to conclude that the contractors were supplying and placing the materials. Further, there was no evidence that Alco and Swiftline were "regular dealers" in fill or aggregates, or identification of their sources of aggregate and fill. Gilbert indicated no item numbers with regard to Alco and Swiftline. If item numbers had been provided, the status of the work as furnish and install items could have been determined. Only two verb forms were used in the "Description of Work" portion of form: “hauling” and “trucking”. Petitioner showed that the value of the contract exceeded the reasonable value of the trucking and hauling to be done on the project. At hearing, Gilbert asserted that Swiftline and Alco were suppliers. This evidence may not be considered. The Department should have limited Gilbert's DBE credit to the value of the hauling and trucking. This was the only work described in the DBE utilization forms. Although the value of the trucking and hauling alone was not proven, it obviously was less than the full contract amount. Gilbert had stated the DBE participation amounts at the minimum required amount. Any reduction of amount creditable to a Black minority contractor would have placed Gilbert below the four percent goal stated in the specifications. The Department credited Gilbert with 100% of the value of the contract with Jayalden towards DBE participation. The DBE Utilization Form for Jayalden does not indicate Jayalden is a supplier or regular dealer. The form does not state Jayalden would install the toll booths. A contractor may obtain 100 percent credit for DBE participation for materials provided by a DBE manufacturer, a DBE regular dealer or a DBE who furnishes and installs items designated furnish and install items in the specifications. The Department knew there were only two approved manufacturers of toll booths. Jayalden was not one of the manufacturers. Neither of the manufacturers were DBE certified. Gilbert's DBE forms did not identify Jayalden as a "regular dealer," and the toll booths were not designated furnish and install items in the specifications The Department must approve additional items as furnish and install items if not designated in the specifications. The Department did not add the toll booths as furnish and install items. The evidence shows that the manufacturer offered to provide the toll booths and install the toll booths for $75,000 each. Jayalden agreed to acquire, ship and install the booths for $76,000 each. A question arises regarding the commercially useful function Jayalden was performing if the manufacturer would furnish and install the nine booths for $75,000 each. In response to the question regarding the commercially useful function Jayalden performed, evidence was presented that Jayalden assumed responsibility for this acquisition and installation of the booths and Jayalden relieved the contractor of "managing" that part of the project. The rules required the Department's approval of the commission or fee paid for management services of this type. The rules do not permit credit for DBE participation of the value of the toll booths. This would reduce the credit for minority non- Black participation by Jayalden from $684,000 to $9,000, less than the required non-Black minority DBE participation. The evidence regarding Precision established Precision was a regular dealer in traffic control devices, and contracted to supply, service and install these devices on the project. The DBE Utilization Form for Precision indicates the Item No. and indicates "Impact Attentuator Vehicular (Partial)" and "MOT (Partial)". Precision's form provided sufficient data to justify being given 100% credit. Gilbert's other DBE forms did not present any special condition warranting increasing DBE credit. The DBE Utilization Forms as submitted by Gilbert failed to mention or identify any special conditions or circumstances affecting the amount of credit Gilbert received for DBE participation. The facts submitted at hearing reveal that at least one special condition or circumstance was applicable to each subcontractor in order to justify crediting Gilbert with 100% of the value of the contract with the DBE toward DBE participation. With exception of Precision, the information was provided only after the bid opening and improperly supplemented the original proposal. The Department had previously approved DBE Utilization Forms providing the same type of information as contained on Gilbert’s DBE Utilization Forms. Had the Department reviewed the proposals as required, Gilbert would have been determined not to have met the DBE specifications. Gilbert did not justify its failure to meet the DBE participation because it facially had met the DBE criteria under the Department's existing policies. In contrast, the DBE form submitted by State for Metro indicates the items numbers involved, and that Metro will “Haul & supply materials and earthwork.” Similarly, the work to be performed by Freedom Pipeline was clearly identified and sufficient information provided to advise the Department of any special conditions affecting the credit to be awarded for DBE participation. One can readily ascertain that the subcontractor is a hauler, supplier and installer of the limestone, and that the contractor should receive 100% credit for minority participation of the contract's value. State was able to meet the DBE participation specification.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter its Final Order finding that Gilbert was non-responsive; however, because Gilbert followed the existing policies of the Department which were erroneous, it is recommended that the Department reject all bids and republish the invitation to bid to afford interested contractors an opportunity to file new proposals. DONE and ENTERED this 3rd day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1997.
The Issue The issue to be determined is whether the dissolution of the district complies with chapter 190, Florida Statutes, and whether the hearing process has been conducted in accordance with the requirements of chapter 190 and Florida Administrative Code Chapter 42-1.
The Issue Whether the Petition to Establish the Dovera Community Development District meets the criteria established in Chapter 190, Florida Statutes.
Findings Of Fact A The property which is the subject of the Petition in this case consists of approximately 410 contiguous acres. All of the subject property is located in unincorporated Seminole County. Petitioner presented the testimony of John R. Maloy. Maloy is Corporate Vice President of A. Duda & Sons, Inc. and Executive Vice President of The Viera Company, positions he has held for approximately eight years. The Viera Company, the Petitioner, is a wholly owned subsidiary of A. Duda & Sons, Inc. Maloy is responsible for planning and disposition of real estate assets. He is also responsible for those projects which have reached the development phase. It was Maloy's responsibility in this matter to select and work with the team of professionals who prepared the Petition. He also reviewed the contents of the Petition and approved its filing. Maloy identified Petitioner's Composite Exhibit B, which is a copy of the Petition and its attached exhibits as filed with the Commission. Maloy stated that, for purposes of clarification, a sentence should be added to page 3 of the Petition indicating that the current version of the Seminole County Comprehensive Plan is dated September, 1991. Maloy then testified that, to the best of his knowledge, the statements in the Petition and its attached exhibits are true and correct. Other witnesses testifying on behalf of Petitioner similarly confirmed the accuracy of the Petition and its attached exhibits, as supplemented at hearing. The Viera Company, a Florida corporation, is owner of 100 percent of the real property to be included in the District. As required by statute, the owner has given its written consent to the establishment of the proposed District. Maloy was designated as the agent of The Viera Company to act on its behalf with regard to any matters relating to the Petition. No real property within the external boundaries of the District is to be excluded from the District. All of the land to be included in the District is the subject of a DRI Development Order which has been approved by the Commission. The five persons designated in the Petition to serve on the initial board of supervisors are: Jack Maloy 135 Highway A1A North Satellite Beach, FL 32937 Don Spotts 1113 Tuskawilla Road Winter Springs, FL 32708 David Duda 7979 Dunstable Circle Orlando, FL 32817 Tracy Duda 1601 Highland Road Winter Park, FL 32789 Donna Duda 2436 Mikler Road Oviedo, FL 32765 All of them are residents of the State of Florida and citizens of the United States. Existing residential communities are located on the north and west sides of the proposed District. To the south and east, the proposed District is generally bordered by the Seminole County Expressway and by a large undeveloped tract to the south. The land in the area to be included in the proposed District is currently undeveloped and is used for agricultural purposes, principally cattle grazing. All of the land to be included in the District has been planned as a single, mixed-use community to be developed pursuant to a development order for the DLI Properties Development of Regional Impact approved by the Commission on October 10, 1989, and issued to Duda Lands, Inc. Duda Lands, Inc. is now The Viera Company. Creation of the District will not constitute any change to the DRI development, its plan, its timing, its design, or anything else related to the DRI. The proposed District is a mechanism for financing infrastructure, and any change that might be made in the future would be subject to all requirements and conditions specified by statute. For example, establishment of the District will result in no change with respect to the present requirement that the District donate utility lines to the County. The proposed development of lands to be included in the District contemplates construction of significant commercial and office/showroom space, together with some residential units and hotel rooms over a twelve-year period. Creation of theproposed District will not constitute any change in the basic character of the development. With respect to the provision of infrastructure and services, it is presently anticipated that the CDD will construct or otherwise provide for a surface water management system, roads, street lighting, landscaping, culverts, and water and sewer facilities. With Seminole County's consent, the CDD will also exercise other special powers, as authorized under Section 190.012(2), Florida Statutes, for the purpose of providing facilities for parks and recreation, security, and mosquito control. Capital costs of these improvements are presently intended to be borne by the District. There is no intent to have the District apply for any of the private activity bond allocation monies available. Mr. Maloy testified that Petitioner has no intent to have the District exercise its ad valorem taxing authority. Mr. Maloy's unchallenged and unrefuted testimony in this regard is accepted. From the perspective of The Viera Company, creation of the proposed District is important for the construction, operation, long-term management and maintenance of major infrastructure for the development. Mr. Maloy testified that the CDD the best alternative for delivering the needed community development facilities and services and that the creation of the CDD will also help ensure that District residents pay for the costs of the necessary infrastructure that will be constructed to serve them. In the present economic climate, a developer's access to the money necessary for the provision of needed infrastructure is very limited. One of the few avenues available is the bond market. The CDD will permit access to this source of funds to provide capital to build the necessary infrastructure. To address issues related to planning, Petitioner presented the testimony of Brian C. Canin. Canin is President of Canin Associates Urban and Environmental Planners, a planning and consulting firm. He has held that position since the firm's inception in 1980. Canin has extensive experience with Developments of Regional Impact and in planning and development of other large-scale projects, as well as in reviewing comprehensive plans. Canin was qualified at the hearing as an expert in land use planning. Canin was coordinator for the consulting team which prepared the DLI Properties DRI. He prepared and submitted the application for development approval encompassing all of the property located within the external boundaries of the proposed district. He also participated in all of the hearings. With respect to the Dovera CDD petition, Canin worked as part of the project team, providing supporting materials for the Petition. Canin identified Exhibit 5 to the Petition as a map prepared by Canin Associates for the DRI which depicts the land use plan for the proposed District. He indicated that Canin Associates later provided the map to Gee & Jenson (Engineers, Architects and Planners) for use in compiling the Petition. Canin also identified an updated version of Exhibit 5 to the Petition. He indicated that the version contained as an attachment to the Petition was submitted with the DRI. In the course of the hearings held on the DRI and during the approval of the Master Plan, certain changes were made to the land uses. Petitioner's Exhibit E represents the land uses currently proposed and approved for the area encompassed by the proposed District. Canin noted that the updated version of the land use plan includes a revision of the typical roadway section. Petitioner had been informed by County staff that the typical roadway section initially submitted by the developer did not meet the standards for a County road. The roadway section, which meets the standards for a county-owned road, was drawn to show that the road could meet those specifications without changing the amount of buildable acreage within the proposed development. This means that the existing right-of-way can accommodate a change, if necessary, to meet County-owned road standards. There will be no change in the DRI requirements with respect to buildable acres. Encompassing approximately 410 acres, the proposed land uses for the area within the Dovera CDD comprise a Planned Unit Development consisting of 512 multi-family residential units and related commercial, institutional, recreational, and other uses. The proposed development includes over 247,000 square feet of commercial space and more than two million square feet devoted to office and office/showroom space. The plan also includes 250hotel rooms. The development is set within environmental open spaces that are integrated into stormwater facilities and roadways. A copy of the September, 1991 Seminole County Comprehensive Plan was admitted into evidence as Petitioner's Exhibit F. Based on his review of the Seminole County Comprehensive Plan, Canin testified that the proposed district is consistent with the Seminole County Comprehensive Plan. In addition, project approval required numerous reviews in the course of the DRI process, as well as various hearings conducted by the County Land Planning Agency and Board of County Commissioners. Unless the project had been consistent with the Seminole County Comprehensive Plan at all these points in time, the developer would not have been allowed to proceed. Canin also testified that he had reviewed the State Comprehensive Plan found in Chapter 187, Florida Statutes, and that, in his opinion, the proposed District is consistent with the State Comprehensive Plan. He noted that Section 187.201(18), Florida Statutes, provides for the creation of partnerships among local governments and the private sector which would identify and build needed public facilities. Canin also identified Section 187.201(20) which encourages the coordination of transportation infrastructure to provide major travel corridors and enhance system efficiency. Coordination of the Red Bug Lake Road construction and the proposed District's involvement in its financing are examples of how the proposed district fulfills this policy. Canin further testified that Section 187.201(21) permits the creation of independent special taxing districts as a means of lessening the burden on local governments and their taxpayers, and also encourages the use of such districts in providing needed infrastructure. Based on his extensive experience with Developments of Regional Impact, Canin testified that creation of the proposed District will not constitute any change to the DRI development, its plan, its timing, its design, or anything else related to the DRI. The District's activities are subject to the regulatory and permitting authority of the county, including the DRI approval process. From a land use perspective, the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Requiring DRI approval, the project was designed from the outset using an integrated land use plan, the purpose of which was to integrate diverse systems into one common plan. Canin testified that the proposed District is the best available alternative for delivering community development services and facilities to the area that will be served by the District. According to Mr. Canin, the proposed District will facilitate long-term financing of necessary infrastructure while providing a perpetual entity capable of operating and maintaining those systems and facilities. In Mr. Canin's opinion, private development would not be as advantageous because a private developer could not provide the same guarantees with respect to long-term operation and maintenance. Finally, based on his familiarity with the type and scope of development as well as the available services and facilities locate din the area of proposed development, Canin testified that the District's services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. He noted that transportation services were taken into account in the DRI process and are thoroughly integrated into the local comprehensive plan. To address engineering-related matters, Petitioner offered the expert testimony of Fred A. Greene. Greene is President, Chairman, and Chief Executive Officer of Gee & Jenson Engineers-Architects-Planners, Inc., an engineering and planning firm. He has held these positions for a combination of sixteen years. Greene is a registered engineer in Florida and personally has been involved in a number of DRI-related projects. He has a wide range of experience in providing engineering services relating to the use and operation of special districts, including community development districts. He advises districts on construction matters, design and maintenance, beginning with permitting for major infrastructure. Greene was qualified at the hearing as an expert in civil engineering and in land development, specializing in special districts. Greene played an active role in preparation of the documents required to establish the Dovera CDD. He visited the site and reviewed designs prepared by others for the water management system, the roadway system, and the water and sewer facilities. He also assisted in the preparation of the cost estimates contained in the Petition. The land within the proposed District is not presently developed and is primarily used for cattle operations. The land uses adjacent to the proposed district include residential communities to the north and west. The Seminole County Expressway is east of the proposed District and the land to the south is vacant. The existing drainage basins and outfall canals, the existing major trunk water mains, sewer interceptors and lift stations are identified in Petitioner's Composite Exhibit B, attached Exhibit 6. The land presently is drained by a series of ditches installed for agricultural purposes, the water flowing from west to east before discharging through Bear Creek into Lake Jessup. The proposed District is currently expected to construct the water management system, water and sewer facilities, internal roadways, security, mosquito control, and parks and recreation facilities. Seminole County will provide potable water through the existing twelve-inch lines. The District will construct water mains along the internal roads and later transfer title to the County. There is no plan to have the District provide water service to the development. With respect to the provision of sewer service and facilities, Petitioner plans to have the District construct a collection system along with lift stations and force mains that will discharge to the County's Iron Bridge Treatment Plant. These facilities will also be dedicated to the County. There is no plan to have the District provide sewer service to the development. The Petitioner plans to have the District construct and/or maintain within its boundaries a system of lakes, dry retention areas, wet retention areas, wetlands, flowways, culverts and control structures to accommodate surplus stormwater. Discharge would be through control structures and flow north through a system of existing canals to Lake Jessup. The Petitioner also expects the District to be involved in the construction and maintenance of roads. The roads would be constructed to applicable Seminole County standards, and to the extent that the roads remain district roads, the District will maintain them. The Seminole County Expressway is a N/S roadway presently under construction along the eastern boundary of the District. Realigned Red Bug Lake Road is presently under construction by Seminole County pursuant to a joint infrastructure agreement with Duda Lands, Inc. The agreement requires cost participation on that part of realigned Red Bug Lake Road which runs through the District. The District is expected to assume the developer's responsibility for that portion of realigned Red Bug Lake Road which runs through the District. The proposed District expects to purchase a truck and sprayer to assist in mosquito control within its boundaries. The District will be responsible for this activity, either by contract or by using its own staff. The proposed District currently plans to construct, operate and maintain facilities for parks and recreation. These facilities may include passive parks, playgrounds, pedestrian systems, bike paths, boardwalks and nature trails. With respect to the proposed District's current plans for security, in addition to gates, fences and similar installations related to security, the District may supplement security with additional staff and, where practical, may install automatic security devices. Exhibit 7 to the Petition shows the estimated infrastructure construction schedule and costs for the proposed District based on 1991 dollars. The anticipated schedule is for work to be performed by the Dovera CDD over the next twelve years. Unlike the DRI which has phases triggered by trips, the CDD phasing is premised on financing and construction engineering. However, the anticipated timetable in Exhibit 7 to the Petition is consistent with the schedule for development of the land. Based on his experience with special districts and DRI-related projects, Greene testified that creation of the proposed District will not constitute any change to the DRI development, its plan, its timing, its design, or anything else related to the DRI. Mr. Greene's unrefuted testimony established that the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as a functional interrelated community. A large tract lying adjacent to a major expressway, having been planned as a DRI and approved subject to issuance of a development order, is developable as a functional interrelated community. In this instance, all of the infrastructure systems, including those serving nonresidential areas of the development, are interrelated and have been purposefully designed to function as a single system. Greene's unchallenged testimony established that the proposed District is the best available alternative for delivering the proposed services and facilities to the area that will be served by the District. Although property- owners' associations constitute one alternative for the delivery of community development services and facilities, they are unable to finance infrastructure. In addition, regional water management districts prefer to have CDDs provide services because of their stability and record for collection of assessments. Being units of special-purpose local government, CDDs are generally perceived as being more stable than informal associations. While private development is another alternative, it cannot provide the same guarantees as CDDs with respect to operation and long-term maintenance of community development services and facilities. It is Mr. Greene's opinion that the proposed District's community development services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The project infrastructure will be designed and constructed to state or county standards for the various items of work and would therefore be consistent with the local development regulations and plans. The District will also be subject to all permit requirements and conditions of the development order. Mr. Greene testified that the area to be served by the proposed District is amenable to separate special-district government because the area is large enough to support necessary staff to maintain and operate the proposed system. The District also has specific authority and a specific mission. Based on his experience with other districts of this size and larger that have been in existence for more than twenty years, Greene concluded that the proposed Dovera CDD will prove to be a successful operation. Dr. Henry H. Fishkind, President of Fishkind & Associates, Inc., an economic and financial consulting firm, prepared and presented the economic impact statement which accompanied the Petition. In addition to providing economic forecasting services, Fishkind also provides financial advice to both public and private sector clients, including special districts. At the hearing, Fishkind was qualified as an expert in economics, financing and statistics, including infrastructure financing and the use of special taxing districts. In addition to preparing the economic impact statement (EIS), Fishkind has assisted The Viera Company in assessing the financial feasibility of the proposed District. Fishkind confirmed the accuracy of the information contained in the EIS. The EIS was prepared, in part, to meet the statutory requirements of Chapter 120, Florida Statutes. At the hearing, Fishkind summarized the findings contained in the EIS. Seminole County and the State of Florida were identified as the two governmental entities which would be affected by the processing of this Petition and ongoing review and oversight of the District. Seminole County received the Petition for review and was paid a $15,000 filing fee to cover expenses related to processing the application. This fee is expected to adequately cover those costs. The County will have the option of reviewing the District's proposed budget each year. Dr. Fishkind does not anticipate that the County will incur any other direct costs by virtue of establishment of the District. Dr. Fishkind testified that Seminole County and its citizens will also receive some benefits by virtue of establishment of the District. The District will provide a mechanism to facilitate the financing and ongoing operation and maintenance of infrastructure for the project. In Dr. Fishkind's opinion, the District not only restricts the costs for needed facilities and services to those landowners who benefit from them, but, because it is an independent special-purpose government, also frees the County from any administrative burden related to management of these facilities and services. In addition, the District should help to assure compliance with the development order conditions as they relate to infrastructure. With respect to the State, the Bureau of Local Government Finance in the Office of the Comptroller will review certain financial reports that all special districts must file. The cost of processing one additional report will be minimal. In addition, the Department of Community Affairs ("DCA") also has certain reporting requirements with which the District must comply. The costs to the DCA are partially offset by a required annual fee imposed on all special districts. The EIS also analyzed the expected costs and benefits to the citizens of Florida and the state at large. According to Dr. Fishkind's testimony, Chapter 190 encourages planned large-scale communities such as that within the proposed District, and the Dovera CDD would satisfy this legislative intent. The District is also intended to serve as a way to ensure that growth pays for itself, and that those who receive the benefits absorb the costs. Dr. Fishkind testified that, in addition to providing an improved level of planning and coordination and ensuring long-term operation and maintenance of needed facilities and services, the District would also promote satisfaction of state and local requirements for concurrency. Dr. Fishkind's unchallenged and unrefuted testimony in this regard is accepted. Dr. Fishkind also analyzed costs and benefits to the Petitioner. The costs include preparation of the Petition and all of the underlying analysis devoted to the project by team members. Dr. Fishkind testified that, in addition, the Petitioner, as landowner, will be the largest single taxpayer for some time, and will bear the largest portion of the donation of certain rights- of-way and easements. The Petitioner is also expected to provide certain managerial and technical assistance to the District, particularly in the early years. Benefits to the Petitioner include the District's access to the tax exempt bond market and other capital markets which would otherwise be unavailable. Another benefit to the Petitioner flows from the assurance that concurrency requirements will be met and that a stable, long-term entity is in place to maintain necessary infrastructure. Because any other similarly-situated landowner could also petition for establishment of a CDD, the granting of the Petition does not give this developer an unfair competitive advantage. The anticipated costs and benefits to persons who ultimately buy land and/or housing or rent commercial space within the proposed District ("Consumers") were also analyzed. In addition to city, county, and school board taxes or assessments, Consumers will pay certain assessments for the construction and maintenance of necessary infrastructure. The consumers should, in turn, have access to first quality public facilities and high levels of public service in a development where the necessary infrastructure will be maintained even after the developer is no longer involved. Ultimately, the statute provides a mechanism where Consumers may control the board of supervisors and determine the type, quality and expense of essential district facilities and services, subject to County plans and land development regulations. The EIS analyzed the impact of the District on competition and the open market for employment. Although there may be a transitory competitive advantage because of lower cost financing and access to capital, any advantage is not exclusive to The Viera Company. Although the CDD itself will not have a measurable impact on the open market for employment in Seminole County, Dr. Fishkind believes that access to capital markets may nonetheless have some positive effect on the development of employment. According to Dr. Fishkind, the District's potential effect on the open market for employment will likely be enhanced when compared to private development because CDDs are subject to government-in-the-sunshine and public bidding laws. Similarly, while anticipating no measurable impact on small and minority businesses as a direct result of establishing the Dovera CDD, Dr. Fishkind testified that such businesses may be better able to compete in the development because the District must operate according to government-in-the- sunshine and public bidding laws. Data supplied by The Viera Company and Gee & Jenson was used by Dr. Fishkind in performing his economic and financial analysis. Based on the result of his financial studies and analyses, Fishkind concluded that the proposed District is expected to be financially sound and able to fulfill its economic obligations. The expected general financial structure of the proposed District is based on a system of special assessments to defray the costs of its infrastructure. These special assessments would be imposed pursuant to Chapter 190, using the procedures outlined under Chapter 170 or Chapter 197, and would be pledged to secure bonds issued for the necessary improvements. It is not anticipated that the District will use any ad valorem taxation. This proposed financial structure for the Dovera CDD is very similar to that used successfully in many other CDDs in Florida. Dr. Fishkind testified that the financial structure is significantly different from that employed by a Tax Increment Financing District or TIF. A TIF is a dependent district the financial structure of which is premised on a "frozen" tax base of a particular area. TIF bonds are then repaid by the increase in real estate value within that area. This structure usurps certain taxes that would otherwise accrue to the local general-purpose government at large. TIFs are sometimes used in community redevelopment areas. Unlike a TIF, a CDD is actually an independent district with limited powers set out in the statute. A CDD's assessments and taxes do not in any way impact the County's taxing or assessment powers. Although a CDD may borrow money, the debts of a CDD cannot become the debt of any other governmental entity without its consent. In addition to the proposed District, there are several other available alternatives for the provision of community infrastructure, including private development, homeowners' associations, county provision, and dependent districts such as MSTUs or MSBUs. Dr. Fishkind testified that, from a financial perspective, and based on an analysis of other options available, the proposed District is the best available alternative for delivering community development services and facilities to the area that will be served by the District. According to Dr. Fishkind, of these alternatives, only a CDD allows for the independent financing, administration, operation and maintenance of infrastructure while permitting residents to exercise increasing control over the District's governing board. Although independent of the county commission and enabling district residents to exercise control as a governing board, a homeowners' association would not be capable of undertaking the financial responsibility necessary to pay for the required infrastructure. Private developers do not have access to the tax-free bond market, and cannot provide the stability of long-term maintenance of infrastructure. Provision by the county or by a MSTU or MSBU would require the county to administer, operate and maintain the needed infrastructure. Dr. Fishkind testified that, from a financial perspective, and based on a review of the applicable plans, the CDD is consistent with the State and Seminole County Comprehensive Plans. Although CDDs are not directly mentioned in the Seminole County Comprehensive Plan, the proposed District is consistent with the plan's intent that growth should pay for itself. Based on his familiarity with the design of the proposed District and his experience with other districts of a similar size and configuration, Fishkind concluded that the area to be included in the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. All the infrastructure for the proposed development has been planned as a unit and so should be expected to function as an interrelated system. It was also Fishkind's opinion, after reviewing the availability of the existing community development services and facilities in the area to be served by the proposed District, that the community development services and facilities expected to be provided by the District are not incompatible with the capacity and uses of existing local and regional services and facilities. The current assistance provided by the developer with respect to the development of Red Bug Lake Road and the Seminole County Expressway provides an example of infrastructure compatibility. Finally, taking into account the governing structure of the proposed District and the experience of other special districts in Florida, Fishkind concluded that the area that will be served by the proposed District is amenable to separate special-district government. It is Dr. Fishkind's opinion that an interrelated community created in compliance with a comprehensive master plan and specific infrastructure requirements represents an ideal circumstance within which to foster development of a CDD. Petitioner also presented the testimony of Gary L. Moyer. Moyer is President of Gary L. Moyer, P.A., a firm engaged in providing consulting and management services to special districts. He provides numerous services to approximately 33 special districts, 25 of which are CDDs. These services include planning of infrastructure, financing, implementation and the award and oversight of construction contracts. Upon completion of construction, he oversees the day-to-day operation and maintenance of the infrastructure. He has provided these services for approximately fifteen years. At the hearing, Moyer was qualified as an expert in special district governance and management. Moyer has been involved with CDDs ranging in size from only 28 acres to as many as 13,000 acres. Moyer testified that the proposed Dovera CDD would be an average size district among those providing primarily commercial and industrial land uses. CDDs operate pursuant to statute and must comply with requirements similar to those imposed upon general-purpose local governments. CDDs issue bonds to finance necessary infrastructure and typically repay this bonded indebtedness through imposition of non ad valorem assessments. The collection of these non ad valorem assessments has been accorded equal dignity with the collection of property taxes. Comparing other alternatives for the provision of community infrastructure, such as private development, property-owners' associations, and provision of services and facilities by local governments, Moyer testified that the proposed District is the best alternative for providing the contemplated services and facilities to the area that will be served by the District. The singular purpose of a CDD is to provide infrastructure to new communities. Although other entities may provide such facilities and services, none of them possess the focus which is characteristic of CDDs. Moyer also concluded, based on his familiarity with the land area that is to be included in the proposed District and his experience with several CDDs having similar land use characteristics, that the area is amenable to separate special district governance. Moyer also expressed the opinion, based on his experience as manager of other districts of similar size and configuration, that the area of land to be included in the proposed District is of a sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functional interrelated community. The District appears to have the ability to provide the necessary infrastructure in a cost-effective manner to the lands to be included within its boundaries. With respect to the proposed District's anticipated use of County services, agreements with the tax collector and property appraiser for the collection of special assessments under Chapter 197, Florida Statutes, may be used. Such agreements are commonly used by other special districts. To the extent these services are used, the County is compensated by the District for these expenses.
Conclusions On March 12, 1992, a public hearing was held in this matter. The hearing was held in the Chambers of the Seminole County Commission, 1101 East First Street, Sanford, Florida, before James W. York, Hearing Officer of the Division of Administrative Hearings.
The Issue The issue in this case is whether Respondent, the Department of Revenue, should grant Petitioner's application for a consumer's certificate of exemption from sales and use tax.
Findings Of Fact Petitioner is a nonprofit organization incorporated under the laws of the State of Florida on or about August 27, 1997. Petitioner applied to Respondent for a consumer's certificate of exemption from sales and use tax. While the application indicates that it is based on exemption status as an "enterprise zone," Petitioner clarified at final hearing that it actually was basing its application on exemption status as a "charitable institution." ("Enterprise zone" is not an exemption category under the applicable statutes. See Conclusions of Law, infra.) The IRS has determined that Petitioner is exempt from federal income tax under IRC Section 501(a) as an organization described in IRC Section 501(c)(3). A letter dated February 2, 1999, stated that Petitioner: was formed in 1997 to plan and implement redevelopment efforts in the Greater Newtown Community which lead to overall improvement in the quality of life of its residents. In the short time since our inception, we have responded to community needs by implementing a broad range of programs that will have a positive impact on our community. But from the evidence presented (which included no testimony from either party), it is difficult to ascertain factual detail about Petitioner, its activities, or its finances. In addition to grant application and fund-raising activities, it appears that Petitioner has been involved in informational and participation-recruitment meetings and information-gathering surveys for planning purposes (called the Business Retention and Expansion Survey). Petitioner also appears to have been involved in a Storefront Renovation Program and several community celebrations. Petitioner has plans for other economic and community redevelopment activities. But it cannot be ascertained from the evidence which of the other economic development activities have taken place and which are still in grant application or planning stages. For example, documentation regarding Petitioner's involvement in one activity refers to the activity as the "proposed WAGES Employment Challenge." Petitioner obtained $128,000 of funding from the City of Sarasota for seed money for its economic redevelopment and other activities. Petitioner budgeted to spend the $128,000 in 1998. The entire budget consists of salaries, fringe benefits, and overhead expenses. According to a "Profit and Loss" statement for January through October 1998, Petitioner spent $30,581.49 during that time period. All of those expenditures were in the category of payroll and overhead expenses. One activity referenced in Petitioner's documentation is Petitioner's "partnering" with financial institutions and mortgage brokers to process mortgage loans for affordable housing. In that case, the expenditures would be by the other institutions, not by Petitioner. There is no information as to any other expenditures made by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying Petitioner's application for a consumer's certificate of exemption from sales and use tax. DONE AND ENTERED this 5th day of November, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 5th day of November, 1999. COPIES FURNISHED: Bill Nickell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Cynthia E. Porter, Executive Director Greater Newtown Community Redevelopment Corporation 1751 Dr. Martin Luther King, Jr., Way Sarasota, Florida 34234 Joseph C. Mellichamp, III, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
