The Issue The issue for determination is whether Petitioner successfully completed the Civil/Sanitary Engineer Examination on April 14, 2000, of the Board of Professional Engineers.
Findings Of Fact On April 14, 2000, Petitioner took the Examination. The minimum score required to pass the Examination was Respondent notified Petitioner that he had not successfully completed the Examination, having received a score of 69. The Examination is a national examination and is graded by national examiners, i. e., the National Council of Examiners for Engineering and Surveying (NCEES). A separate scoring plan is used for grading each essay question. A separate scorer is used for each essay question, generally scores a given question for all of the Examination. The identity of the candidate/examinee by name is not revealed; the candidate/examinee is given a number and is identified by the number given to him/her. By letter dated September 19, 2000, Petitioner notified Respondent that he was challenging essay questions numbered 120, 124, and 211 on the Examination and that he was requesting a re- scoring of those questions. Petitioner completed a Request for Review of Examination Item form for each question and included, from his point of view, why he should be afforded additional credit and what score he should receive for each question. Petitioner's Examination was returned to the NCEES for review and rescoring. NCEES' rescorer used the same scoring plan that was used for the Examination. NCEES' rescorer recommended that Petitioner receive no additional points for questions numbered 120, 124, and 211 and included a detailed rationale for the recommended score of each challenged question. NCEES determined that Petitioner was not entitled to additional credit and further determined that Petitioner's total raw score of 47, equivalent to a total score of 69, would not be changed. The maximum score achievable for each essay question was ten points, with points subtracted for various reasons as provided in the scoring plan. The score for each essay question was rounded to the next highest even number, resulting in a score of 0, 2, 4, 6, 8, or 10. For question numbered 120, Petitioner received a score of eight points. Petitioner challenges only one part of question numbered 120, regarding his computation of the ultimate bearing capacity for a given footing. For question numbered 120, Petitioner ignored the correction in the requirement for the mid-height water table. He quoted an equation from a reference material but failed to include the correction for the water table in his equation. Furthermore, even though Petitioner incorrectly calculated the effective weight of the soil, he failed to include in the question what he had calculated. The scoring plan for question numbered 120 requires a two-point reduction if the correction for the water table is ignored. Petitioner failed to correctly answer the challenged portion of question numbered 120. Petitioner should receive a score of eight points and, therefore, should not receive any additional points. For question numbered 124, Petitioner received a score of 6 points. Petitioner challenges only one part of question numbered 124, regarding his determination of the maximum sight distance obtainable in the given situation. Petitioner contends that the challenged part was improper, arbitrary, subjective, and open to interpretation. The challenged part of question numbered 124 asked the candidate to determine the maximum distance from the eye to the top of a six-inch high object on the road. It is clear that the challenged part asked for the determination as to how far one can see in a straight line before something obstructs one's view. In making the determination, no additional factors were to be considered, such as what the headlight factor was, or what the ability of a car to stop was, or what the conditions of the road were, or any other factor. Petitioner assumed additional factors. He assumed the sight distance for a sag vertical curve as a stopping sight distance. In calculating the distance, Petitioner made no reference to the obstruction in the calculation formula. His answer had a numerical difference from the correct answer of more than ten percent. The difference was 69 percent. The challenged part of question numbered 124 was not arbitrary, capricious, improper, subjective, or open to interpretation. According to the scoring plan, Petitioner's answer for question numbered 124 requires a two point reduction. Petitioner failed to correctly answer the challenged portion of question numbered 124. Petitioner should receive a score of six points and is, therefore, not entitled to receive any additional points. For question numbered 211, Petitioner received a score of four points. Petitioner challenges the question to the extent that he asserts that he answered 75 percent of the question correctly and, therefore, should receive a score of at least six points. Question numbered 211 is a two-part question. Petitioner admits that he made numerical errors in his solution and that he failed to answer the second part of the question. Petitioner contends that he had insufficient time to answer the second part and that, if he had sufficient time, he would have performed re-calculations and would have been able to demonstrate his understanding of the principles of pumps in series and pumps in parallel. Regardless of Petitioner's contention, his failure to answer the second part of the question was what was before the scorer and re-scorer and was reasonably determined to demonstrate that he failed to understand the development of a pump curve for pumps in series. Failure to demonstrate understanding of the development of a pump curve for pumps in series constitutes, according to the scoring plan, a fundamental error. Because of his errors in the solution and his failure to answer one part, the scoring plan requires that Petitioner receive a score of four points. Petitioner should receive a score of four points and is, therefore, not entitled to receive any additional points. Petitioner's answers were not arbitrarily or capriciously graded. The grading was not devoid of logic and reason. The scoring plan was properly used. At hearing, Petitioner demonstrated a great deal of knowledge regarding the challenged questions. However, he failed to demonstrate such knowledge on the Examination. Petitioner's score on the Examination should not be changed and, therefore, should remain at 69. Petitioner has not obtained the minimum score required to pass the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Professional Engineers enter a final order finding Giovanni L. Campodonico ineligible for licensure. DONE AND ENTERED this 4th day of May, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 4th day of May, 2001.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with the responsibility and duty of investigating and prosecuting complaints against real estate professionals in the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been duly issued license numbers 0263586, 0261820, 0260480, and 0300938. The last license issued to Respondent was as a broker with the following entities: Avatar Realty, Inc., 4550 Poinciana Boulevard, Kissimmee, Florida; Avatar Communities, Inc., 201 Alhambra Circle, Coral Gables, Florida 33134; Golden Gate Realty, Inc., 4736C Golden Gate Parkway, Naples, Florida; and Avatar Condominium Management, Inc., 201 Alhambra Circle, Coral Gables, Florida. Prior to February 20, 1987, Respondent was the owner of a convenience store known as Hemispheres Food Mart, which was located in the Hemispheres condominium and office complex in Hollywood, Florida. On or about February 20, 1987, Respondent, as owner, entered into a three month exclusive right of sale listing agreement with South Florida Business Negotiators, Inc., for the sale of the Hemispheres Food Mart, at an asking price of $100,000. In connection with the foregoing listing agreement, the Respondent represented and warranted as true that the: "Business doing $286,000 yearly net $55,000 ambitious owner can improve potential to $350,000 yearly." On or about April 1, 1987, the Respondent, as seller, entered into a "Contract for Purchase and Sale of Stock of Hemispheres Food Mart, Inc., D/B/A Hemispheres Mini Mart" with Kenny Mohammed and Annie Mohammed, his wife, as purchasers, to sell the corporate stock of Hemispheres Food Mart, Inc. to the Mohammeds. This contract was executed by the Mohammeds on April 2, 1987. The first line of the contract reflects an erroneous date for the contract of May 5, 1987. Paragraph 12 of the "Contract for Purchase and Sale of Stock of Hemispheres Food Mart, Inc., D/B/A Hemispheres Mini Mart", provided as follows: 12. PURCHASER'S RIGHT TO INSPECTION OF SELLER'S RECORDS. The Purchaser, within 72 hours after the con- tract has been signed and executed by both parties, shall have the right, either by himself or through his accountant, to inspect the financial records and receipts of the Seller to verify the amount of sales of the Seller on a weekly basis. The Purchaser shall verify that the average gross sales on a weekly basis for the Seller, during the time period from January 1 through April 1 (the season) exceed the sum of $8,400.00 per week. If the Purchaser by himself or through his accountant determines that the gross sales for the Seller are less than $8,400.00 per week, the Purchaser shall have the unilateral right to terminate its obligations under the terms of this Contract. Seller shall supply Purchaser with copies of 1985 and 1986 tax returns. The Seller agrees to allow the Purchaser to sit in the place of business for a period of one week to observe and verify that the stated daily gross sales of the business exceed $1,200.00. If during the one-week observation period the daily gross sales do not meet $1,200.00, the Purchaser reserves the right to cancel this Agreement and the deposit held in escrow shall be refunded to them. On May 7, 1987, Respondent and the Mohammeds executed an addendum to their contract. Paragraph 23 of the addendum provides as follows: 23. INSPECTION OF RECORDS It is hereby agreed that both parties shall have complied with paragraph 12, PURCHASERS' RIGHT TO INSPECTION OF SELLER'S RECORDS, and therefore same shall be considered null and void. The representation contained in the contract relating to the level of sales was for sales made during the "season" between January 1 and April 1. Mr. Mohammed exercised his right to observe the sales during the week that began April 6, 1987. During the week long observation period, the sales for two of the days did not equal $1,200. Mr. Raymond provided various records and cash register tapes for the period January 1 - April 1, 1987, for inspection by Mr. Mohammed and Mr. Mohammed's financial adviser. Following the inspection of these records and the one-week observation period, Mr. Mohammed, against the advice of his attorney, elected to close the transaction. The transaction closed in May 1987. (The closing statement signed by Respondent and the Mohammeds does not reflect the day in May the transaction closed.) Subsequent to the closing, the Mohammeds sued Respondent in a civil action brought in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida. The "Final Judgment for Plaintiffs" entered September 19, 1989, by Circuit Judge J. Cail Lee provides, in pertinent part, as follows: ... [T]he Court having heard the testimony of all witnesses and having examined the proofs offered by the respective parties, the court finds that he testimony of the two witnesses was to the effect the defendant, Warren Raymond, falsified sales during the sales verification period to induce the plaintiffs, Kenny Mohammed and Annie Mohammed, to complete the purchase of the Hemispheres Mini Mart, and that constituted fraud, and that constituted a basis not only for compensatory damages but punitive damages as well. It is therefore, ORDERED AND ADJUDGED that the plaintiffs have a judgment against the defendant for fraud in the sum of $750.00 compensatory damages and $15,000.00 punitive damages ... Respondent appealed the judgment entered against him by Judge Lee. While the case was on appeal, Respondent and the Mohammeds settled the civil suit. Respondent did not admit any wrongdoing in the Settlement Agreement. Thereafter, on March 26, 1990, Judge Lee entered a "Final Judgment of Settlement" in the civil action which vacated the "Final Judgment for Plaintiffs" that he had entered September 19, 1989, and which dismissed with prejudice the civil action the Mohammeds had brought against Respondent. There was no competent evidence presented at the formal administrative hearing that Respondent had (a) misrepresented the value of the premises or potential of the business, (b) generated false sales during the observation period, (c) falsified cash register receipts, (d) conspired with his friends to falsify sales, or (e) otherwise engaged in fraud during the course of his business dealings with the Mohammeds.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the Administrative Complaint brought against Respondent in this proceeding. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON 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 28th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5320 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-5, 7 and 11 (the first of the two paragraphs that are numbered 11) are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed finding that the contract was dated May 5, 1987, is rejected as being contrary to the finding that the contract was dated April 1, 1987. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order. The use of the term "induced" is rejected as being contrary to the findings made or to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 9 are rejected as being unsubstantiated by the record. The last sentence is rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 11 (the second of the two paragraphs that are numbered 11) are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order, and are rejected in part as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-5, 7-14 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed finding that the contract was dated May 5, 1987, is rejected as being contrary to the finding that the contract was dated April 1, 1987. The proposed findings of fact in paragraphs 15 and 16 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James Gillis, Esquire Department of Professional Regulation Senior Attorney 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802-1900 Norman Segall, Esquire Bentata Hoet & Associates & Zamora, Segall, Lacasa & Schere 3191 Coral Way - Third Floor Miami, Florida 33145 Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Appeal For This Case Unless expressly waived by a party such as in a stipulation or in other similar forms of settlement, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Agency Clerk of the Department of Management Services, and a copy, accompanied by. filing fees prescribed by law, with the Clerk of the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days of rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and section 120.68, Florida Statutes. Certificate of Clerk: Filed in the office of the Clerk of the Department of Management Services on this 96% day of December » 2012. MLE Agency Clerk Page 3 of 3 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MICHAEL GLEN O’BRIEN, Petitioner, DOAH Case No. 12-3396 vs. Department of Management Services, Notice of Voluntary Dismissal Division of State Group Insurance, Respondent. / This Respondent files this notice of voluntary dismissal on behalf of both parties, and states: This matter was held in abeyance, pending an external medical review. Based upon that report, the Petitioner has chosen to dismiss his appeal . See Attachment A. Wherefore, the Parties request that this matter be dismissed with prejudice. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. S. mail, this 10th day of December 2012, to 1833 Halstead Blvd., Apt. 214 Tallahassee, Florida 32309. Respectfully submitted, onja’P. Mathews Florida Bar ID No. 163680 Allison Deison Florida Bar ID No. 0143855 Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 850-922-9665- Telephone 850-922-6312- Telecopier Page 1 of 1 Filed December 10, 2012 1:06 PM Division of Administrative Hearings Mathews, Sonja . From: O'Brien, Michael Sent: Monday, December 10, 2012 11:18 AM To: Mathews, Sonja Subject: appeal Ms. Mathews, | have received MCMC’s review of my case and am hereby dropping my appeal. Thank you, Mike O’Brien Michael O’Brien GIS / Data Services Florida Natural Areas Inventory Florida State University 850-224-8207 ext. 211 mobrian@fsu.edu A\odewact A STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MICHAEL GLEN O’ BRIEN, ) Petitioner, ) vs. Case No. 12-3396 SERVICES, DIVISION OF STATE ) ) DEPARTMENT OF MANAGEMENT ) ) GROUP INSURANCE, ) Respondent. ) ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on the parties’ Notice of Voluntary Dismissal filed December 10, 2012, and the undersigned being fully advised, it is, therefore, ORDERED that the file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Management Services, Division of State Group Insurance. DONE AND ORDERED this llth day of December, 2012, in Tallahassee, Leon County, Florida. Unw We SUZANNE VAN WYK 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 11th day of December, 2012.
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The parties Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state agency charged with the duty and responsibility for regulating the practice of contracting pursuant to Section 20.165, Florida Statues, and Chapters 455 and 489, Florida Statutes. Respondent, Richard M. Golfman, was, at all times material hereto, licensed by the Department as a certified general contractor, having been issued license number CG C032860, and authorized to engage in the practice of general contracting as an individual.1 The Feinstein project (DOAH Case No. 00-0599) On or about October 30, 1998, Respondent entered into a written contract with Norman and Sheila Feinstein to furnish the materials and perform the labor necessary to enclose and remodel the screened patio, and to build a rock garden, at their home located at 5468 Northwest 20th Avenue, Boca Raton, Florida, for the sum of $5,000. At the time, the Feinsteins paid Respondent $1,500 as the initial payment (deposit) under the terms of the contract. The contract Respondent presented and the Feinsteins executed on October 30, 1998, did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. Following execution of the contract, Respondent made repeated promises to construct the rock garden; however, it was not until November 10, 1998, that Respondent appeared on-site and constructed the rock garden, albeit not to the Feinsteins' satisfaction. Subsequently, Respondent had some high-hat electrical fixture cans and a bundle of furring strips delivered to the home for the patio project but, thereafter, despite repeated requests, refused to perform any work on the project or refund any money to the Feinsteins. The value of the labor and materials Respondent invested in the rock garden, as well as the cost of the building materials (the high-hat fixtures and furring strips) delivered to the job-site, was $250, a sum considerably less than the $1,500 the Feinsteins had entrusted to Respondent under the terms of their agreement. The Burres/Berger project (DOAH Case No. 00-0600) On or about November 23, 1998, Respondent submitted a written proposal to Tanya Burres to furnish the materials and perform the labor necessary to replace the existing roof on her home located at 7270 Montrico Drive, Boca Raton, Florida, for the sum of $22,125. The proposal was a one-page preprinted form. In the upper left there appeared, printed immediately following Respondent's handwritten name, the following: THE GOLFMAN GROUP, INC. P.O. Box 811926 Boca Raton, Florida 33431 The proposal did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. At the time the proposal was submitted, Tanya Burres was under contract to sell the home to Drs. Glenn Berger and Michelle Fiorillo, husband and wife (the Bergers), and Ms. Burres had agreed to split with the Bergers the cost of a new roof for the home. At the time, Ms. Burres had suggested the Respondent as a contractor to perform the work (because he had previously done satisfactory work for Ms. Burres); however, it was understood that the employment of any contractor was subject to the Bergers' approval. That the Bergers' agreement was required before any such employment would be accepted was clearly conveyed to Respondent. On November 23, 1998, Tanya Burres signed the proposal and gave Respondent a check payable to his order in the sum of $1,106.25, representing her half of the ten percent deposit called for by the proposal. The Bergers, however, declined to accept the proposal, and refused Respondent's request for the balance of the deposit. Rather, the Bergers, having received adverse information from the Department regarding Respondent's record, preferred to employ a different contractor, and Ms. Burres accorded the Bergers a monetary credit at closing (on the purchase of the home) for one-half the cost to re-roof the home. When the Bergers informed Ms. Burres (shortly after she signed the proposal on November 23, 1998) that they would not agree to use Respondent, Ms. Burres attempted to stop payment on her check; however, the check had already been cashed. Thereafter, Ms. Burres attempted on numerous occasions to contact Respondent by telephone and by his pager, but Respondent failed to return any of her calls or messages. To date, Respondent has failed to account for or return Ms. Burres' deposit of $1,106.25. The costs of investigation and prosecution As of February 25, 2000, the Department's costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled $234.85 for DOAH Case No. 00-0599 (the Feinstein project) and $195.65 for DOAH Case No. 00-0600 (the Burres/Berger project.) Previous disciplinary action At hearing, the Department offered proof that, on two prior occasions, Respondent had been subjected to disciplinary action by the Construction Industry Licensing Board (the Board). (Petitioner's Exhibit 2.) The first occasion is reflected in the terms of a Final Order of the Board, dated August 4, 1987, which found Respondent guilty of the violations alleged in the Administrative Complaint (which were not revealed at hearing beyond what may be inferred from the terms of the Final Order), and resolved that Respondent suffer the following penalty: Respondent's licensure is hereby suspended for ten (10) years. Provided, Respondent may obtain termination of said suspension at anytime, without further action by the Board, upon providing the Board's Executive Director with a certified bank check in an amount sufficient to cover and pay a fine of five hundred dollars ($500), and the bad check alleged in the Administrative Complaint, and all service charges in connection therewith, and all other fees accruing as of the date Respondent seeks said termination of supervision. The second occasion Respondent was subjected to disciplinary action is reflected in the terms of a Final Order of the Board, dated July 18, 1997, which approved a stipulated settlement of certain complaints then pending before the Board. That Final Order approved the dismissal of a number of counts contained in five Administrative Complaints then pending before the Board and, as to the remaining counts, agreed (without Respondent admitting or denying the allegations of fact contained in the Administrative Complaints) to the following penalty: 3. FINE AND COSTS: Respondent shall pay a fine of Nine Hundred dollars ($900.00) and costs of Eight Hundred fifty One dollars ($851) to the Board within thirty (30) days of the filing of the Final Order. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the "Construction Industry Licensing Board." To assure payment of the fine and costs, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine and costs are paid in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the fine and costs in full, the suspension imposed shall be lifted. Respondent apparently satisfied the fines and costs imposed by the foregoing orders. (Petitioner's Exhibit 2.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing findings of fact and conclusions of law, and which, as a penalty for the violations found, imposes an administrative fine in the total sum of $13,500.00, revokes Respondent's licensure, orders that Respondent pay restitution to Norman and Sheila Feinstein in the sum of $1,250.00 and to Tanya Burres in the sum of $1,106.25, and assesses costs of investigation and prosecution (through February 25, 2000) in the total sum of $430.50 against Respondent. DONE AND ENTERED this 22nd day of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 22nd day of June, 2000.
The Issue Whether Respondent's License as a residential pool contractor should be suspended for alleged violation of Section 468.112(7), Florida Statutes. The Respondent did not appear at the hearing although proper notice thereof had been furnished under date of February 11, 1976 to him by the hearing officer. Accordingly, the hearing was conducted as an uncontested proceeding.
Findings Of Fact Respondent has been licensed as a registered pool contractor by the Florida Construction Industry Licensing Board since June 20, 1974. The license was not renewed for 1975/76 (Exhibit 4). Respondent filed a Voluntary Petition in Bankruptcy in the U.S. District Court for the Northern District of Florida, Bankruptcy No. TBK 75-25, on March 13, 1975 (Exhibit 5).
Recommendation That the registration of William R. MacKinnon as a residential pool contractor be suspended until such time as he meets the qualifications and other requirements for renewal of registration and applies therefor. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1976. COPIES FURNISHED: David Linn, Esquire 217 South Adams Street Tallahassee, Florida 32301 Mr. William R. Mackinnon Route 3, Box 584C Tallahassee, Florida 32303
The Issue Whether Allstate Construction's (Allstate) bid was delivered in time. Whether Florida State University (FSU) had the authority to waive the lateness of Allstate's bid if it was late. Whether the failure by Allstate to acknowledge receipt of Addendum No. 2 was a bidding irregularity. Whether Allstate's failure to acknowledge receipt of Addendum No. 2 could be waived by FSU.
Findings Of Fact Florida State University requested bids for repairs to the roof and walls of Thagard Student Health Center on July 2, 1992. Thereafter, two addenda were issued. The first addendum was issued on July 27, 1992, and the second on July 28, 1992. Item #1 of Specifications in Addendum No. 1, which is attached, changed the date the bids were to be presented to August 6, 1992 at 2:00 p.m. in Room 124-D of Mendenhall Maintenance Building at FSU. Item #1 to Specifications in Addendum No. 2, which is attached, changed the specifications of ringlets and counterflashings published in Item #4 to Specifications in Addendum No. 1; and Item #2 in Addendum No. 2 changed the specifications of the materials in the cants published in the original specifications. On August 6, 1992, representatives of Harrell, Southeast, and FSU were present in Room 124-D, Mendenhall Maintenance Building prior to 2:00 p.m. Harrell and Southeast had already presented their bids to Sallie Dixon, FSU's representative. One of the persons present had called upon Ms. Dixon to call time and open the bids, but she had not done so when Dot Mathews and Joe O'Neil entered the room. Mr. O'Neil announced to those present that Ms. Mathews was late because he had misdirected her to another part of the building when Ms. Mathews's had entered the office he was in, Room 124, and had asked directions. Ms. Mathews immediately handed Allstate's bid to Ms. Dixon, and Ms. Dixon received it. Immediately, Ms. Dixon opened, tabulated, and posted the bids. Allstate had the lowest responsible bid. Allstate's bid did not acknowledge receipt of Addendum No. 2. FSU's rules on bidding provide that the official time will be that of the clock in the reception area of the Purchasing Department; however, the opening was held in Mendenhall Maintenance Building because of repairs to the Purchasing Department, and the university's officials were uncertain whether the reception area and clock existed at the time of the opening. It was the clear impression of all present, except Ms. Mathews, that the bid presented by Ms. Mathews was after 2:00 p.m. The estimates of the time varied, but none placed the time beyond 2:04 p.m. FSU generally sent an acknowledgment form with an addendum which required the bidders to acknowledge receipt of the addendum; however, in this instance, the addendum was sent by the supervising engineer, and an acknowledgment form was not sent with the addendum. The specifications did not require acknowledgment of addenda. The essence of the substantial amount of testimony received on the impact of the changes was (1) that the change in thickness of materials had a negligible impact, and (2) the real change in costs was the result of the requirement that the paint finish be by the manufacturer. The requirement that the materials be painted by the manufacturer was part of Addendum No.1. Further, the bidders are deemed manufacturers, and the finish that they put on the manufactured items is "by the manufacturer". Although testimony was received that Petitioner would have manufactured the items and then had them coated thereby increasing their total costs, an alternative method of manufacture was described by Allstate's representative in which the painted raw materials are retouched after being cut and welded into the finished structures. Petitioner's choice of the first method was explained by its representative to be its effort to comply with the bid requirement that the winning contractor guarantee the finish for twenty years. Intervenor's choice was to use the second method. To the extent that one method may have been more expensive that the other, there was no prohibition of the Petitioner to adopt the less expensive method; and, therefore, there was no economic advantage to Allstate. In the absence of an economic advantage to Allstate, Allstate's failure to acknowledge Addendum No. 2 was a minor irregularity. FSU waived the lateness of Allstate's bid and Allstate's failure to acknowledge Addendum No. 2, and awarded the bid to Allstate.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Petitioner's Petition be dismissed, and the bid be awarded to Allstate Construction, Inc. DONE and ENTERED this 30th day of October, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 30th day of October, 1992. APPENDIX CASE NO. 92-5465BID Florida State University and Allstate Construction, Inc. submitted proposed findings which were read and considered. The following states which findings were adopted and which were rejected and why: Florida State University's Proposed Findings: Para 1-4 Adopted. Para 5-7 Not necessary/irrelevant. Para 8 Adopted. Para 9-11 Not necessary/irrelevant. Para 12-24 Adopted. Para 25 Not necessary/irrelevant. Allstate Construction's Proposed Findings: Para 1,2 Adopted. Para 3 Not necessary/irrelevant. Para 4-8 Adopted. Para 9 Not necessary/irrelevant. Para 10-15 Adopted. COPIES FURNISHED: Wendell Parker Mike Harrell Harrell Roofing, Inc. P.O. Box 20421 Tallahassee, FL 32316 Sonja Mathews Florida State University 540 W. Jefferson Street Tallahassee, FL 32306-4038 Davisson F. Dunlap, Jr. 3375-A Capital Circle, N.E. Tallahassee, FL 32308 Jeff Miller Route 16, Box 1307 Tallahassee, FL 32310 Dale W. Lick, President Florida State University 211 Westcott Building Tallahassee, FL 32306-1037 Gerold B. Jaski, General Counsel Florida State University 540 West Jefferson Street Tallahassee, FL 32306
Findings Of Fact The Petitioner has alleged that the Respondent in Administering grants under the Comprehensive Employment and Training Act (CETA) failed to comply with the applicable rules and regulations. As a result thereof, a total of $6,503 was spent in violation of applicable rules and regulations. The findings of fact and conclusions of law of the Hearing Officer as set out in the Recommended Order are hereby accepted and adopted, except that the undersigned rejects the hearing officer's conclusion of law at paragraph two on page five of the recommended order. The undersigned concludes that according to applicable law the amount of $4,824 charged to the contract on account of the ineligible participant is not an allowable expenditure, and that Respondent is liable for the payment of that sum. It is further found that Respondent did not present adequate evidence to refute the findings of its failure to comply with applicable regulations. WHEREFORE, it is Ordered: That Respondent immediately repay $6,503 spent in violation of applicable regulations. In the event either party disagrees with this determination, an appeal can be filed with Mr. Lawrence Weatherford, Regional Administrator, United States Department of Labor, 1371 Peachtree street, N.W., Room 405, Atlanta, Georgia 30309. The provisions pertaining to the appeal process, 20 C.F.R. 676.88 et. seq., are attached hereto. Dated this 27th day of, 1982 in Tallahassee, Leon County, Florida. CHARLES R. RUSSELL, Director Division of Employment and Training COPIES FURNISHED: Frances Jackson Box 70 Live Oak, Florida 32060 Chad Motes Suite 131, Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32301 Henry Warren Internal Audit Division of Employment and Training Atkins Building 2562 Executive Center Circle East Tallahassee, Florida 32301 Donald R. Alexander Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 ================================================================= AGENCY AMENDED FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF EMPLOYMENT AND TRAINING DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT AND TRAINING, Petitioner, vs. CASE NO. 82-882 SUWANNEE RIVER ECONOMIC COUNCIL, INC. Respondent. /
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay $1,654 in questioned costs under Contract No. 80ET-86-03-71-17-021. The questioned costs pertaining to Contract No. 79MP- 2U-03-44-17 should be allowed. DONE and ENTERED this 25th day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 25th day of June, 1982. COPIES FURNISHED: Chad J. Motes, Esquire Suite 131-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Frances Jackson Post Office Box 70 Live Oak, Florida 32060 Wallace E. Orr, Secretary Department of Labor and Employment Security 206 Berkley Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF EMPLOYMENT AND TRAINING DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT AND TRAINING, Petitioner, vs. CASE NO. 82-882 SUWANNEE RIVER ECONOMIC COUNCIL, INC. Respondent. /
