The Issue Whether a certified general contractor's license issued to Francisco Vincente De Moya (Petitioner) that has been classified null and void should be reinstated pursuant to the "hardship" provision of section 455.271(6)(b), Florida Statutes.1
Findings Of Fact Respondent is the state agency that regulates general contractors in the State of Florida. In 1998, Respondent issued Petitioner certified general contractor license CGC 05992. Certified general contractors are required to take a total of 14 hours of continuing education courses in specified categories each biennial period.2 Credit is generally posted for the biennial period during which the course was taken. All continuing education courses discussed in this Recommended Order were taken by Petitioner using the internet and reported electronically. Respondent typically posts and maintains such credits electronically. Credits are typically posted for the biennial period in which the credits are earned. If a licensee had been deficient for a prior biennial period, Respondent's staff can manually post-date credits from a subsequent biennial period to the biennial period that is deficient. 2004-2006 Biennial Period On August 23, 2004, Petitioner submitted to Respondent a personal check in the amount of $209.00 as payment of renewal fees for his general contractor's license for the biennial period 2004-2006. Petitioner's general contractor's license was not renewed for the 2006-2008 biennial period because Petitioner had not completed sufficient continuing education hours during the 2004-2006 biennial period to meet his continuing education requirements. On September 1, 2006, Respondent classified the status of Petitioner's as "expired/delinquent." As of September 1, 2006, and as of the date of the formal hearing, Respondent's records reflected that Petitioner was deficient in his continuing education requirements for the biennial period 2004- 2006 by a total of six hours in three categories.3 One hour of the deficiency was in the category of advanced building code. Four hours of the deficiency were in the category of general. One hour of the deficiency was in the category of workers' compensation. 2006-2008 Biennial Period On September 29, 2006, Petitioner submitted to Respondent a payment in the amount of $309.00 for renewal fees and late fees for his general contractor's license for the biennial period 2006-2008. On October 20, 2006, Petitioner completed a four hour continuing education course in "core training." Petitioner testified that this credit was intended to be for the 2006-2008 biennial period. Prior to the renewal deadline of August 29, 2008, Petitioner requested and obtained from Respondent an extension of 30 days to submit proof of completion of continuing education credits for the 2006-2008 biennial period and payment of renewal fees for the 2008-2010 biennial period. 2008-2010 Biennial Period On September 29, 2008, Petitioner paid Respondent $209.00 as payment for renewal fees for his general contractor's license for the 2008-2010 biennial period. On September 28 and 29, 2008, Petitioner completed 14 hours of continuing education credit and submitted the certificates of completion for each course to Respondent with the notation "Please find Certificates of Completion for my G.C. license # CGC 059992 for 2006-2008." Respondent received the certificates of completion on October 1, 2008. These hours satisfied Petitioner's continuing education requirements for the 2006-2008 biennial period. On October 2, 2008, Petitioner's certified general contractor's license became "null and void."4 With knowledge that his contractor's license was considered null and void,5 Petitioner took 26 hours of continuing education credit between November 24, 2008, and August 7, 2009, and submitted his certificates of completion to Respondent. Respondent did not apply any of the 24 credits Petitioner earned between September 29 and December 11, 2008, to the 2004-2006 biennial period, nor was there any evidence that Petitioner requested Respondent to do so.6 In 2006, Petitioner's mother-in-law (Ms. Careaga) was diagnosed with degenerative dementia and began to deteriorate physically and mentally. From 2007 until her death on December 15, 2008, Ms. Careaga became immobile, more disoriented and confused, and required 24 hour supervision. Petitioner had a close relationship with his mother-in-law. Petitioner and Petitioner's wife became Ms. Careaga's 24-hour primary caregivers so she would not have to go to a nursing home. Petitioner continued to work full-time and serve as a primary caregiver until Ms. Careaga's death. During this period, Petitioner assisted other family members in closing down the restaurant that his mother-in-law had owned and operated. On January 12, 2011, Respondent denied Petitioner's application for the reinstatement of his general contractor's license. The Notice of Denial was not admitted as an exhibit in this proceeding. However, a "Notice of Intent to Deny," purporting to be the Respondent's proposed denial, was attached to the Petition for Formal Hearing. That Notice of Intent to Deny recites that the Petitioner's license expired due to "non payment" [sic] of renewal fees. That statement is incorrect. The license became null and void because of the deficient continuing education requirements for the 2004-2006 biennial period. The Notice of Intent to Deny also found that Petitioner failed to establish hardship within the meaning of section 455.271(6)(b). Petitioner is eligible to obtain a new license by retaking the licensure exam and by establishing that he is of good moral character and financially stable and responsible. His experience has been established by virtue of his prior license. Petitioner also holds licensure as an architect. That license also became null and void during the same time frame as his contractor's license. On February 17, 2011, the Florida Board of Architecture, considering the same facts described above, approved Petitioner's application for reinstatement of his architecture license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order denying Petitioner's application for reinstatement of his certified general contractor's license based on the hardship provision set forth in section 455.271(6)(b). DONE AND ENTERED this 22nd day of August, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2011.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to the issues herein, petitioner Davis was an automotive equipment repair foreman at respondent's Pinellas County Maintenance plant. In addition to this employment, petitioner also had a pecuniary interest in the Sunshine Speedway in St. Petersburg. A steel pole was located on private property belonging to Sunshine Speedway. Because persons and/or vehicles had been injured by this pole, petitioner and a heavy equipment operator employed by respondent decided to remove it. They went to respondent's maintenance yard at 6:30 or 7:00 p.m. after their hours of employment, got a crane truck belonging to respondent, drove it to the Speedway, removed the steel pole to another area and returned the truck to the maintenance yard after dark. Petitioner neither asked for nor received permission to use respondent's equipment for this purpose. At a time when petitioner was leasing the Sunshine Speedway, and during his hours of employment with respondent, he filled a dump truck belonging to respondent with limerock or scrap materials. After his hours of employment with respondent, petitioner drove this truck to the Speedway and dumped its contents near the entranceway for the purpose of making a culvert or crossover. While there was some evidence that petitioner had the permission of his immediate supervisor, Mr. William Dasher, to use the respondent's scrap culvert material, petitioner admitted that no one gave him the authority to improve the entranceway to the Speedway or to use the respondent's truck for this purpose. As a result of the facts described in paragraphs 2 and 3 above, respondent found that petitioner had violated state rules and regulations and departmental policies with regard to the unauthorized use of state equipment outside of his regular assigned duties and responsibilities and for other than state purposes. The disciplinary action taken was demotion of petitioner from automotive equipment repair foreman at Pinellas Maintenance to automotive equipment mechanic II and reassignment to Tampa Maintenance. Petitioner thereafter appealed this disciplinary demotion and reassignment to the Career Service Commission. The matter was referred to the Division of Administrative Hearings for hearing, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Commission affirm the demotion and reassignment of petitioner inasmuch as the same was based upon good cause and was in accordance with established rules and regulations. Respectfully submitted and entered this 23rd day of May, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Horace E. Davis Post Office Box 375 Pinellas Park, Florida 33565 Mrs. Dorothy Roberts Appeals Coordinator Phillip Bennett, Esquire Department of Administration Department of Transportation Room 530 Carlton Building Haydon Burns Building Tallahassee, Florida 32304 Tallahassee, Florida 32304
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 case are whether Respondent violated Subsections 489.129(1)(j) and (m), Florida Statutes (2004),1/ and, if so, what penalty should be imposed.
Findings Of Fact The Parties At all times relevant to this proceeding, Respondent was a certified general contractor, having been issued License No. CGC 1506043 by the Florida Construction Industry Licensing Board ("Board" or "Construction Industry Licensing Board") and was the primary qualifying agent for Rankor Corporation. The Board is the state agency charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. At all times relevant, Rankor Corporation was a contractor-qualified business in the State of Florida, having been issued License No. QB 26667. The officers of the Rankor Corporation were as follows: Tina M. Despin, president; Stephen Despin, Sr., executive vice president; Jerold S. Bakelman, vice president and treasurer; and Eldora Bakelman, secretary. The directors of the Rankor Corporation were Respondent, Mr. Bakelman and Mr. Despin. Jerold Bakelman was licensed as a financially responsible officer by the Board from August 27, 2003, to January 7, 2005. Mr. Bakelman's license number was FRO 711. Transactions Related to Longoria Property In December 2004, Antonia Longoria met with Tina Despin and Stephen Despin, Sr., about replacing the roof and performing other repairs at a house owned by Ms. Longoria located at 4716 Nottingham Drive, Ft. Myers, Florida ("Nottingham Drive house" or "Nottingham Drive property").2/ On or about December 7, 2004, Ms. Longoria entered into a contract with Rankor Corporation to remove and replace the roof and to make the other repairs at the Nottingham Drive house (hereinafter referred to as "Contract No. 1" or "December 7, 2004, Contract"). The cost for the scope of work in Contract No. 1, including the cost of obtaining permits was $32,690.00. Pursuant to the terms of the contract, one-third of the contract amount, $10,896.67, was due when the contract was signed; one-third of the contract amount was due when the trusses were delivered; $8,396.67 was due when the job was completed; and $2,500.00 was due after the final inspection of the job was completed. The December 7, 2004, Contract was signed by Tina Despin on behalf of Rankor Corporation and by Ms. Longoria. On or about December 7, 2004, Ms. Longoria paid Rankor Corporation, by personal check, a payment in the amount of $10,896.67 for the work to be done pursuant to Contract No. 1. Ms. Longoria made the check out to Rankor Corporation and gave it to Ms. Despin. On or about December 17, 2004, about ten days after Contract No. 1 was executed, Ms. Longoria entered into a second contract with Rankor Corporation to do additional work at the Nottingham Drive house (hereinafter referred to as "Contract No. 2" or "December 17, 2004, Contract"). Under the terms of the December 17, 2004, Contract, Rankor Corporation was required to relocate the entrance to the house from the side to the front of the house. The cost for the scope of work under this contract was $10,770.00, with payments to be made in three installments. Pursuant to the terms of Contract No. 2, one-third of the contract amount, $3,590.00, was due when the contract was signed; one-third was due when the trusses were delivered; and the remaining one-third was due upon completion of the project. Contract No. 2 was signed by Tina Despin on behalf of Rankor Corporation and by Ms. Longoria on or about December 17, 2004. Two days later, on or about December 19, 2004, Ms. Longoria paid Mr. Despin, Sr., by personal check, a payment in the amount of $3,590.00 for the project under this contract. The check was made out to "Stephen E. Despin" and not to Rankor Corporation. Ms. Longoria paid the $3,590.00 to Mr. Despin, Sr., as a representative of Rankor Corporation. The scope of work under both Contract No. 1 and Contract No. 2 required permits from the City of Ft. Myers Building Department before work could commence. However, after the two contracts were executed, Rankor Corporation never applied for the permits necessary to commence work under those contracts. At or near the end of January 2005, Ms. Longoria began calling Mr. Despin, Sr., to find out when he would begin the project at the Nottingham Drive house. After several unsuccessful attempts by Ms. Longoria to reach Mr. Despin, Sr., he returned her call in February or March, but Rankor Corporation never performed any of the work required under Contract No. 1 and Contract No. 2. No one from Rankor Corporation ever performed any work on Ms. Longoria's Nottingham Drive house. Notwithstanding its failure to perform any of the work required under the December 7, 2004, Contract and the December 17, 2004, Contract, Rankor Corporation did not return Ms. Longoria's two payments made pursuant to the terms of those contracts. The total of these two payments was $14,486.67. In or about March 2005, the City of Ft. Myers Code Enforcement unit posted a notice on the Nottingham Drive property advising Ms. Longoria that the subject property was in violation of the city code. The notice gave Ms. Longoria, as owner of the property, 30 days to have the repairs done to bring the house into compliance with the code. The violations cited in the notice were related to damages the Nottingham Drive house sustained from Hurricane Charlie. On or about April 19, 2005, Ms. Longoria entered into a contract with Roofmaster of South Florida, Inc. ("Roofmaster") to repair the roof at the Nottingham Drive house in order for the roof to be in compliance with the City of Ft. Myers code. The scope of work under the contract with Roofmaster was smaller than the scope of work under the December 7, 2004, Contract between Ms. Longoria and Rankor Corporation. The contact price for the project with Roofmaster was $9,500.00. In or about May 2005, Roofmaster commenced and completed work under its contract with Ms. Longoria. For this work, Ms. Longoria paid Roofmaster the contract price of $9,500.00. At no point in time until May 2005, the time at which Roofmaster commenced work under the contract with Ms. Longoria, did Ms. Longoria prevent Rankor Corporation from commencing and completing the work projects under the December 7, 2004, Contract and the December 17, 2004, Contract. Respondent's Attempts to be Removed as Qualifying Agent On January 5, 2005, Respondent wrote a letter to Mr. Bakelman memorializing Respondent's and Bakelman's conversation concerning Mr. Bakelman's decision to no longer serve as the financially responsible officer for Rankor Corporation. In the letter, Respondent recounted that during that conversation, he (Respondent) had "executed documents supplied by you [Bakelman] from the State of Florida Construction Industry Licensing Board releasing you [Bakelman] from said position with immediate effect." By letter dated January 5, 2005, Respondent forwarded a copy of his January 5, 2005 letter to Mr. Bakelman to the secretary of the Construction Industry Licensing Board in Tallahassee, Florida. Respondent requested that the letter be recorded and filed with pertinent information maintained by that office for "the business qualified by me [Respondent], known as Rankor Corporation. Apparently concerned about Mr. Bakelman's stepping down as Rankor Corporation's financially responsible officer, Respondent contacted the Department's Customer Service section on January 5, 2005, about the situation. At that time, a person in that section told Respondent that he should inform the company officers that they had an obligation to secure a new financially responsible officer, and if they did not, he was obligated either to act in that position or to terminate his position as qualifying representative. On January 7, 2005, Bakelman was properly removed as the financially responsible officer for Rankor Corporation and, thereby, ceased being the financially responsible officer for Rankor Corporation. Upon Mr. Bakelman's being properly removed as the financially responsible officer, Respondent, as the qualifying agent, became responsible for the duties and obligations related to Rankor Corporation's financial matters. By letter dated February 7, 2005, Respondent advised Stephen and Tina Despin (Stephen and Tina) that he was terminating his position as the primary qualifying agent for Rankor Corporation. In this letter, Respondent recounted a January 5, 2005, letter to the Despins in which he indicated that in light of Mr. Bakelman's resignation, he (Respondent) was requiring them to secure a financially responsible officer within two weeks. According to the letter, the reason Respondent was terminating his position with the company was that the Despins had failed to do so. In addition to advising the Despins that he was terminating his position as qualifying agent for Rankor Corporation, Respondent's letter provided the following: Pursuant to guidelines of CILB [Construction Industry Licensing Board], it is required that no new contracts or construction endeavors requiring the use of my license be undertaken, this includes, but is not limited to, the "pulling" of permits. Furthermore, my license number is to be removed form any signage or advertising immediately, which would serve to give the impression that Rankor is acting as a certified general contractor. The only work you are permitted to perform is to conclude projects already underway, and I was advised by the board [Construction Industry Licensing Board] that you should secure another qualifier as soon as possible. I will advise the local building departments of the change of status as well. Respondent sent the February 7, 2005, letter to the Despins by certified mail. According to the return receipt, Tina Despin signed for and received the letter on February 8, 2005. Respondent also sent a copy of his February 7, 2005, letter to the Despins to the Construction Industry Licensing Board. On February 7, 2005, Respondent sent a letter to the Board informing the Board of Respondent's termination as the primary qualifying agent for Rankor Corporation and requesting the appropriate documents to be removed as the primary qualifying agent for Rankor Corporation. The letter provided, in relevant part, the following: Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Fl [sic] 32399 Re.: Termination of Acting as Qualifier for Rankor Corporation Dear Sirs or Mesdames: As per attached letter I with immediate effect remove myself as qualifier for Rankor Corporation, QB 26667[.] Please provide me with any forms required to effect completion of the same, this should not be considered in any manner a renunciation or modification of my termination as qualifier. This act is irrevocable and immediate. I am a certified General Contractor, [sic] [M]y license number is CGC 1506043. The "attached letter" referred to in Respondent's letter to the Board, quoted in paragraph 30, is Respondent's February 7, 2005, letter to the Despins. Larissa Vaughn has been the administrative assistant for the executive director of the Board since February 2005. As an administrative assistant, Ms. Vaughn is familiar with the licensure process for construction contractors. Ms. Vaughn testified that the Board never received Respondent's February 7, 2005, letter to the Board, which informed the Board of Respondent's termination as the primary qualifying agent for Rankor Corporation and requested that he be sent appropriate documents to be removed as the primary qualifying agent for Rankor Corporation. The reason the Board never received the letter is not clear. However, Ms. Vaughn testified that a letter, such as Respondent's February 7, 2005, letter to the Board, would not have necessarily been received. According to Ms. Vaughn, "[a] lot of letters like this are received and [when] there is a request for forms, it goes to our customer contact center." Ms. Vaughn testified that even if the Board had received Respondent's February 7, 2005, letter, that correspondence would not have been sufficient in itself to remove Respondent as the primary qualifying agent for Rankor Corporation. According to Ms. Vaughn, the Department requires that to be removed as the primary qualifying agent for a contractor-qualified business in the State of Florida, a licensed contractor must submit to the Board a properly completed change of status application. Ms. Vaughn testified that a change of status application can be requested and received from the Department by phone, e-mail, or internet.3/ On September 13, 2005, Respondent submitted a change of status application to the Board. Almost two years later, Respondent's change of status application remains open and has not been approved by the Board. Respondent's efforts to terminate his status as the qualifying agent for Rankor Corporation were unsuccessful for the reasons stated above. In this case, even if Respondent's February 7, 2005, letter had effectively terminated his status as qualifying agent, the fact remains that he was the qualifying agent in December 2004 when Rankor Corporation entered into the two contracts with Mrs. Longoria. Moreover, Respondent became responsible for Rankor Corporation's financial matters after Mr. Bakelman was properly released as the company's financially responsible officer. There is no evidence that Respondent has been previously cited for violations under Chapter 489, Florida Statutes. The total investigative costs of this case to Petitioner, excluding costs associated with any attorney's time, for Department Case No. 2005-028129 was $408.37 (four hundred eight dollars and thirty seven cents).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulations, Construction Industry Licensing Board, enter a final order: (1) finding that Respondent, Joseph D. Sloboda, violated Subsections 489.129(1)(j) and (m), Florida Statutes; (2) imposing a $1,000 fine for each violation; (3) requiring Respondent to make restitution to Antonia Longoria in the amount of $14,486.67; and (4) requiring Respondent to pay investigative costs associated with this case of $408.37. DONE AND ENTERED this 30th day of November, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 30th day of November, 2007.
Findings Of Fact Based upon the prehearing stipulation, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: Sometime prior to May 27, 1992, the Department solicited bids for contract no. 18103, section/job no. 11130-3518 (the project). The DBE goal for the project was stated at ten percent. The bids for the project were opened on May 27, 1992, and six timely bids were received including one from Hubbard and one from APAC. Hubbard's bid was the apparent low bid at $1,573,558.00 when compared to APAC's bid of $1,706,337.22. All other bids were presumably higher and are not at issue in these proceedings. All such bids were, however, deemed responsive by the Department. The Department established two dates for the posting of the award for this project. One date, June 18, 1992, was twenty-two days after the letting. That calculation requires that the actual letting date (May 27, 1992) be counted as the first day. The second date, using the same approach, was specified at forty days after the letting, July 6, 1992. The Department elected to post for this project on day 22, and its intent to award the contract to APAC was therefore disclosed on June 18, 1992. Hubbard timely filed an initial protest to the intent to award, and subsequently timely filed its formal protest on June 29, 1992. The Department rejected Hubbard's bid solely because one of its subcontractors, CDS Trucking, was not on a list of certified DBE firms on the day the bids for the contract were opened. Hubbard is a highway construction contractor which bids for, and performs, highway construction projects with the Department and other public entities. Hubbard is aware of public contracts that require a specified percent to be performed by DBE subcontractors. In fact, most of Hubbard's work is performed pursuant to such contracts and, as Petitioner has been in business for a number of years, it has vast experience meeting DBE goals. More important, Petitioner has never failed to meet a DBE goal. The Department is fully cognizant of Hubbard's past performance and reputation regarding compliance with DBE goals. When it receives an invitation to bid on a public construction project, Hubbard contacts DBE subcontractors for quotes for the job. While these contacts may be informal, such as by telephone conversation or facsimile transmission, the subcontractor is made aware that it is being contacted for the quote in reference to the DBE goal for the proposed project. In this case, Hubbard contacted CDS Trucking for a DBE subcontractor quote. Petitioner has used CDS Trucking numerous times in the past to perform services and on each such occasion CDS Trucking has been identified and accepted as a DBE. CDS Trucking gave Hubbard a quote of $30,000.00 to perform asphalt hauling services on the subject project. Taken in total with the other four DBEs who gave quotes to Hubbard, the total proposed DBE participation on Petitioner's bid was 10.65 percent. This amount exceeded the Department's stated goal for the project. Without including CDS Trucking, Hubbard's bid did not meet the 10 percent DBE goal. Under the Department's policy, in order to be eligible for inclusion as a DBE, a subcontractor must be listed in a DBE directory published each month by the Department. To be included in the directory a subcontractor must be a certified DBE as determined by the Department's minority programs office, must be in the process of seeking DBE certification renewal by having applied for such renewal not later than 90 days prior to certification expiration, or be certified on the date the directory list is closed for the month. Additionally, the Department will allow a contractor to use a DBE firm that is certified subsequent to the printing of the DBE directory, if such company is certified prior to the submission of bids. Under the foregoing policy, it is not unusual for the DBE directory to include numerous subcontractors who are, in fact, noncertified DBEs at the time of the bid letting or award. Consequently, a contractor using a noncertified DBE may qualify for, and receive, a contract award simply because it used a subcontractor listed in the DBE directory. Conversely, the use of a subcontractor who is not included in the DBE directory but is, in fact, a certifiable DBE may result in the contractor's bid being deemed nonresponsive for not meeting the DBE goal. Pertinent to this case, CDS Trucking has been identified and certified as a DBE since 1985. During that time there have been two lapses in DBE's certification status. Both lapses were voluntary in the sense that CDS Trucking, through its own conduct, intentionally failed to renew its certification. In the first instance, the company was undergoing internal organizational changes that delayed the application process. In the second case, Mrs. Cantero, the office manager and person responsible for the recertification application, was out of the office ill for an extended period of time. During these occasions, CDS Trucking knew its certification as a DBE would be suspended until completion of the renewal applications. CDS Trucking has never been denied DBE certification. The factual circumstances giving rise to CDS Trucking's initial eligibility and certification as a DBE and its current status have not changed. The DBE certification held by CDS Trucking for the 1991/92 year expired on March 13, 1992. On February 7, 1992, CDS Trucking filed an application for DBE recertification. Had the Department acted on that application within 90 days of its filing, CDS Trucking would have been recertified as a DBE on or before May 7, 1992. At the time the application for recertification was filed, CDS Trucking had submitted all information required by law or rule as set forth on the application form. No additional information from the applicant was required by law or rule in order for the Department to act on the application. Instead of processing the application within 90 days, the Department requested copies of two contracts recently executed by the applicant. The form letter issued by the Department provided: "Your application is presently under review. In order to complete this review, please submit the following additional information." (emphasis added) Such letter incorrectly suggested to CDS Trucking that if it did not furnish the information, its application would not be completed. On March 24, 1992, CDS Trucking responded to the request and submitted the additional information which it thought was required to complete its application. Because it had requested additional information, the Department extended the time within which to act on CDS Trucking's application for recertification. Since the Department's request for such information was made on the last possible date to make such request, the time to act on the application, under the Department's interpretation, was extended the maximum length of time. More important to this case, however, is the fact that the Department had no basis, in law or fact, to seek additional information from CDS Trucking. Moreover, had CDS Trucking filed its application for recertification prior to 90 days before the expiration of its certificate, the Department would have left CDS Trucking on the DBE roster regardless of the length of time necessary to process its renewal, including any delays created by the Department's requests for additional information. The Department does not have a rule that requires DBE applicants for recertification to file for renewal not later than 90 days prior to expiration of their certifications. The DBE directory used for this bid letting included the names of many DBE subcontractors whose certifications had expired before April 8, 1992, the date of printing for the directory. An even larger number of DBE subcontractors whose certifications expired before May 27, 1992, were included in the DBE directory used for this bid letting. One of the DBE subcontractors used by an unsuccessful bidder on this project (whose bid the Department did not deem nonresponsive) had a certification that had expired on June 12, 1988. At the time it gave Hubbard the quote for this project, CDS Trucking believed it was operating as a DBE. Since CDS Trucking had supplied all requested information to the Department and had a history of certification, no reasonable basis existed to presume CDS Trucking was not a bona fide DBE. CDS Trucking, by giving a quote to Petitioner, represented itself as a DBE to Hubbard. Hubbard relied on the quote from CDS Trucking and presumed it to be a DBE. As such, Hubbard further presumed it had met the DBE requirement for this project and, consequently, did not believe it needed to make an additional good faith showing. Indeed, had the Department followed its applicable rules, CDS Trucking would have been certified on the date of the letting, May 27, 1992. Had Hubbard known CDS Trucking was not certified on May 27, 1992, other arrangements could have been made. The Department arbitrarily rejected Hubbard's bid and refused to look at the facts and extenuating circumstances regarding CDS Trucking and the Department's own failure to timely process the DBE's renewal application. The fact that CDS Trucking, because of the Department's own failure to timely issue the recertification, was not certified on the date of letting is a minor irregularity in that CDS Trucking was certified on the date of the award and clearly was eligible for certification at all times. More important, the inclusion of CDS Trucking as a DBE does not convey an improper advantage on Hubbard not enjoyed by the other bidders. The Department failed to consider any of the factual matters related to CDS Trucking when it determined Hubbard's bid to be nonresponsive for its alleged failure to meet the DBE project goal. In fact, when the fact that CDS Trucking should have been certified by the Department on May 27, 1992 is considered, Hubbard's bid for this project did and does meet the DBE project goal.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order finding Hubbard Construction Company's bid responsive, and awarding contract no. 11130-3518 to Hubbard Construction Company. DONE and ENTERED this 21st day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992. APPENDIX TO CASE NO. 92-4018 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Paragraphs 1 through 33, 36, 38, 41, 43, 47, 48, 51, and 55 are accepted. 2. Except as specifically addressed in the foregoing findings of fact, all remaining paragraphs are rejected as hearsay, argument, presuming facts not in evidence, contrary to the weight of the evidence or misstatement of the record, irrelevant, or repetitive. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. Paragraphs 1 through 5, 8, 11, 14, 15, 16, 17, 18, 19, 20, 22, 24, 29, 31, 32, 36, 38, 45, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57, and 59 are accepted. 2. Except as specifically addressed in the foregoing findings of fact, all remaining paragraphs are rejected as incorrect or incomplete references of fact, recitation of testimony not accepted as ultimate fact, argument, irrelevant, contrary to the weight of the total evidence, or inapplicable as a matter of law and therefore immaterial. COPIES FURNISHED: Susan P. Stephens Asst. General Counsel Dept. of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 F. Alan Cummings, Esquire Mary Piccard, Esquire P.O. Box 589 Tallahassee, Florida 32302-0589 Ben G. Watts, Secretary Attn: Eleanor F. Turner Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399 0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399 0458
The Issue Whether Petitioner is eligible to participate in the State of Florida Drycleaning Solvent Cleanup Program ("DSCP").
Findings Of Fact On December 21, 1995, Petitioner was incorporated as a Florida corporation. Prior to its incorporation, Petitioner did not conduct any business activities. Since that time it has provided pretreatment for waste water generated by Associated Uniform Rental, Inc. ("AUR"). AUR is a uniform rental facility that rents uniforms and cleans those same uniforms using a laundry process that involves the use of soaps, softeners, and neutralizers. AUR's uniform cleaning process does not currently use, and has never used, drycleaning chemicals. On April 24, 1996, Petitioner applied to Respondent for eligibility to participate in the DSCP. Petitioner's DSCP application lists the street address for the site as 35 North Parramore Avenue, Orlando, Florida. The application is signed by Dominick Cirotti. Petitioner maintains a business office in the building located at 35 North Parramore Avenue. Although the application for eligibility lists the address for the site as 35 North Parramore Avenue, Petitioner has operated and continues to operate a waste water treatment system in the northwest corner of the building located at 21 North Parramore Avenue. Petitioner began operating the waste water treatment system after it was incorporated in December 1995. In January 1996, Petitioner acquired title to the real property located at 35 North Parramore Avenue. Petitioner's predecessor-in-title with respect to the above-referenced real property was AUR, f/k/a/ Atlantic Uniform Services, Inc. AUR originally acquired the property from Associated Uniform Rental and Linen Supply, Inc. ("AURLS") on July 21, 1979. AURLS and AUR are different companies. In January 1996, Petitioner also acquired title to the real property comprising the northwest corner of the building located at 21 North Parramore Avenue. AUR was Petitioner's predecessor-in-title with respect to both of the above-referenced real property. There is one building located at 21 North Parramore Avenue. The remainder of the building is utilized by AUR in conducting its business operations as a uniform rental company. The waste water treatment plant is separated from the remainder of AUR's building by a knee-wall. Petitioner's waste water treatment system processes waste water generated by the operations of AUR. Petitioner's waste water treatment plant is an integral part of the operation of AUR's uniform rental facility. The building at 35 North Parramore Avenue is located immediately to the north of the building located at 21 North Parramore Avenue. A narrow alleyway separates the two buildings. Prior to transferring the property to Petitioner, AUR used the northwest corner of 21 North Parramore Avenue for the storage of clothing as part of its operations as a uniform rental company. Since 1979, AUR has operated a uniform rental company in the building located at 21 North Parramore Avenue. AUR is currently located in the same building. AUR does not use perchloroethylene in its cleaning process. AUR rents uniforms and cleans them in a laundry process. AUR's facilities are utilized primarily for the cleaning and distribution of work apparel. Since 1985, AUR has also maintained an office in the building located at 35 North Parramore Avenue. This office operates as part of AUR's uniform rental company. Dominick Cirotti is a corporate officer of Petitioner as well as the President of AUR. Petitioner and AUR share common employees. Petitioner and AUR also share common office space in the building located at 35 North Parramore Avenue. At some time between 1925 and 1979, various drycleaning businesses operated on the property located at 21 North Parramore Avenue. Drycleaning operations ceased on the real property sometime between 1960 and 1965. In April 1993, AUR retained Environmental Science and Engineering, Inc. ("ESE") to perform a limited site assessment with respect to suspected drycleaning solvent contamination beneath AUR's building on 21 North Parramore Avenue. ESE's assessment, completed on May 6, 1993, was to determine the presence of impacted soil and/or groundwater in the immediate vicinity of a hole in the concrete slab located in that area of the facility which was once used for drycleaning operations. This area was targeted because the hole was a suspected dump site for used perchloroethylene, a solvent used in drycleaning. The hole was located in the northwest corner of AUR's building on 21 North Parramore Avenue. ESE collected soil samples and screened the samples for the presence of organic vapors, and also installed a temporary monitor well and collected a groundwater sample. ESE's analytical results verified that "both the soil and groundwater had been affected by a release of chlorinated solvents . . ." In June 1993, ESE performed an additional site assessment with respect to the contamination beneath AUR's building at 21 North Parramore Avenue. On July 28, 1993, ESE provided AUR with a letter that described its findings concerning the suspected contamination. The July 1993 ESE site Assessment Report includes a site plan (Figure 1) which depicts the installation of a temporary well in the northwest corner of the AUR building located at 21 North Parramore Avenue. This temporary monitor well was installed in the vicinity of the hole in the concrete slab. At the time the site assessment was performed by ESE, the northwest corner of the building was still owned by AUR. This monitor well was located in the same part of the building that AUR would later transfer to Petitioner. The additional site assessment performed by ESE confirmed the presence of perchloroethylene contamination. In April 1994, HSA, Inc., was contracted to provide AUR with a Preliminary Contamination Investigation with regard to the perchloroethylene contamination at AUR's building on 21 North Parramore Avenue. At the time the investigation was performed by HSA, the northwest corner of the building was still owned by AUR. A summary of the investigation's findings provided that soil and groundwater contamination issues apparently resulted from the disposal of purgeable hydrocarbons. Disposal was likely through one of two holes in the concrete slab within the cleaning facility. These site investigations corroborate that there is perchloroethylene contamination, and that it originates under two holes in the concrete slab in the northwest corner of the building located at 21 North Parramore Avenue. The perchloroethylene contamination meets the definition of "drycleaning solvents" per Subsection 376.301(9), Florida Statutes (1995). This statute provides that the definition of "drycleaning solvents" only includes " . . . those drycleaning solvents originating from use at a drycleaning facility . . ." Id. Respondent denied the application for eligibility in the DSCP because Petitioner's predecessor-in-title, AUR, operated a uniform rental company on the real property that is the subject-matter of this proceeding. Effective October 1, 1995, the term "drycleaning facility," as defined in Subsection 376.301(8), Florida Statutes, was amended to exclude uniform rental companies from eligibility to participate in the DSCP. At the time the amendment to Subsection 376.301(8), Florida Statutes, became effective, AUR was operating a uniform rental company in the buildings located at 21 North Parramore Avenue and 35 North Parramore Avenue. AUR continues to operate a uniform rental company in the building locates at 21 North Parramore Ave and 35 North Parramore Avenue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Secretary declare Petitioner not eligible to participate in the Drycleaning Solvent Cleanup Program, and its application should be denied. DONE AND ENTERED this 11th day of May, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 11th day of May, 2001. COPIES FURNISHED: William H. Haak, Esquire Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Eola Drive Post Office Box 2809 Orlando, Florida 32802 Jason Hand, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
