The Issue The issue in this case is whether the Board of Trustees of the Internal Improvement Trust Fund (BOT) should charge Respondent with lease payments and fine him for unauthorized use of sovereignty submerged lands under the Halifax River in Daytona Beach.
Findings Of Fact Respondent owns residential property on the Halifax River in Daytona Beach. In 2004, he entered into a Sovereignty Submerged Lands Lease with BOT to allow him to construct a single-family dock structure into the Halifax River from his property. In 2007, he entered into a Modification to Increase Square Footage (Modified Lease). The Modified Lease covered 2,714 square feet, required an annual lease fee of $423.89, and expired on November 16, 2008. The Modified Lease provided for a late charge equal to interest at the rate of 12 percent per annum from the due date until paid on any lease fees not paid within 30 days from their due dates. There was no evidence that any lease fee under the Modified Lease was not paid or paid late. In August 2008, BOT attempted to have Respondent enter into a Lease Renewal. He did not renew his lease, and the Modified Lease expired on November 16, 2008. Respondent paid no lease fees for 2008/2009. In September 2009, BOT again attempted to have Respondent enter into an updated Lease Renewal at an annual lease fee of $436.78 and pay current and past due lease fees. BOT placed Respondent on notice that his failure to do so could be considered a willful violation of Chapter 253, Florida Statutes, which could subject Respondent to administrative fines of up to $10,000 a day. Respondent did not renew his lease or pay any lease fees. Instead, he complained (as he claims to have since 2005) that a stormwater outfall structure installed by the Florida Department of Transportation (DOT) in 1998 approximately 100 feet to the north (upriver) of his dock structure, at the end of Ora Street, was not functioning properly and was allowing silt to enter the river, shoaling the water in the area of Respondent’s dock structure (and elsewhere in the vicinity) and eventually making it impossible for Respondent to moor his boat at his dock structure and navigate to the Intracoastal Waterway (ICW). The DOT outfall structure at Ora Street has been in existence since the 1950’s. In 1998, DOT added a silt box, which is not functioning properly and is allowing silt to enter the river. The evidence is not clear whether silt from the DOT outfall structure was entering the river before 1998. In 2010, BOT informed Respondent by certified mail that it had contacted the DOT at Respondent’s request and determined that DOT was planning to clean and monitor the outfall structure after August 2010 but had no plans to dredge sediment from the river. BOT also placed Respondent on notice that he was in violation for not renewing his lease and paying all current and past due fees, and that he would be fined and required to remove his dock structure if he did not come into compliance. This certified letter was designated an NOV. The evidence was not clear when the letter was sent to Respondent, but it is clear that Respondent has continued to refuse to renew the lease, or pay any fees, and has not removed his dock structure. BOT takes the position in this case that Respondent must pay: the Lease Renewal annual lease fee of $436.78 for 2008/2009, plus the Lease Renewal late charge equal to interest at the rate of 12 percent per annum from November 30, 2010; and an annual lease fee of $448.49 for 2009/2010, plus a late charge equal to interest at the rate of 12 percent per annum on the $448.49 from November 29, 2009. The evidence did not explain how the annual lease fees for the years 2008/2009 and 2009/2010 were determined. (But see Florida Administrative Code Rule2 18- 21.011(1)(b)10.b., set out in Conclusion of Law 24, which may explain how the annual lease fees were determined.) Invoices in evidence charge Respondent a total of $1,283.22 through July 30, 2010: $436.78, plus tax, for a total of $465.17 for the year 2008/2009; $448.49, plus tax for a total of $477.64 for the year 2009/2010; and $36.18 of interest on the $448.49. BOT also takes the position that Respondent must either: enter into a lease for the year 2010/2011 and beyond; remove part of his dock structure so that he will preempt only 1,150 square feet of sovereignty submerged land (so as not to require a lease, but only a cost-free consent of use); or remove the entire dock structure. BOT also seeks the imposition of an administrative fine under Rules 18-14.002 and 18-14.005(5). In its First Amended NOV, BOT sought a fine in the amount of $2,500; in its PRO, BOT seeks a fine in the amount of $2,500 for the first offense and $10,000 per day from the issuance of the NOV for repeat offenses. Respondent believes he should not be required to pay any lease fees or fines because of his inability to use his dock structure due to the shoaling of the river caused by the malfunctioning DOT outfall structure. Respondent believes it is DEP’s responsibility to require DOT to remove the silt from the river and make the outfall structure work properly. He believes this is required by the state and federal constitutions, statutes, and rules, and by an unspecified “federal bond issue” or “federal bond agency.” DEP takes the position that the silting from the outfall structure and its adverse impact on Respondent’s ability to use his dock structure is irrelevant because the requirement of a lease is based on preemption of sovereignty submerged land, not on the lessee’s use of the land. DEP also believes that, under an operating agreement among governmental agencies, the St. Johns River Water Management District (SJRWMD), not DEP, is the agency responsible for enforcing the applicable environmental laws and permit conditions against DOT. DOT has indicated to the parties that it is in the process of modifying the outfall structure so that it functions properly but that it does not have the money to remove silt from the river. DEP personnel visited the site at approximately 11:00 a.m. on July 16, 2010, and measured the water in the vicinity of the terminal platform and slips of Respondent’s dock structure to be approximately 36 inches deep, which is deep enough for navigation. DEP did not take measurements in the slips of the dock structure, between the terminal platform and Respondent’s property, or between the vicinity of the terminal platform and the ICW. The evidence was not clear what the tide stage was at the Respondent’s dock structure when DEP measured the water depth. DEP called the tide stage low, or near low, based in part on tidal charts for Ormond Beach and the Halifax River indicating that the tide was low at 11:21 a.m. and high at 4:10 p.m. on July 16, 2010. However, the persuasive evidence was that the tidal chart applied to locations at the beach, and there is a difference in the tides at Respondent’s dock structure and at the beach. It does not appear that the tide was dead low or near dead low at Respondent’s dock structure at 11:00 a.m. on July 16, 2010; it probably was between low and slack, possibly a half foot higher than dead low. Regardless of the measurements taken by DEP on July 16, 2010, Respondent testified that he is not able to operate his boat from his dock structure consistently due to shoaling from the silt. He testified that, as a result, he kept his boat at a marina for a year at a cost of $7,000 but cannot afford to continue to do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that BOT enter a final order: (1) that, within 10 days, Respondent sign the appropriate lease renewal and send it, along with $1,283.22 in past due lease fees and interest owed BOT, plus the lease payment for 2010/2011, by cashier’s check or money order made payable to the “Internal Improvement Trust Fund,” with a notation of OGC Case No. 10-1948, sent to 3319 Maguire Boulevard, Suite 232, Submerged Lands and Environmental Resource Program; or (2) that, within 20 days, Respondent remove his dock structure or at least enough of it to preempt no more than 1,150 square feet of sovereignty submerged; and (3) that, within 30 days, Respondent pay BOT a fine in the amount of $2,000, by cashier’s check or money order made payable to the “Internal Improvement Trust Fund,” with a notation of OGC Case No. 10-1948, sent to 3319 Maguire Boulevard, Suite 232, Attention David Herbster, Program Administrator, Submerged Lands and Environmental Resource Program. DONE AND ENTERED this 3rd day of November, 2010, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 3rd day of November, 2010.
The Issue Whether the Petitioner, Willis Phillips, may challenge the specifications of the invitation to bid at issue in this proceeding? Whether the Petitioner has standing to challenge the Department of Health and Rehabilitative Services' proposed award of lease number 590:2166 to the Intervenor, Rutherford Rentals, Inc.?
Findings Of Fact The Department issued an Invitation to Bid for Existing Facilities, lease number 590:2166 (hereinafter referred to as the "ITB"), seeking to rent office space in Madison, Florida. Responses to the ITB were to be filed with the Department by 2:00 p.m., March 6, 1990. Included as part of the ITB was a map of the City of Madison (hereinafter referred to as the "Map"). Joint Exhibit 1. On page 1, paragraph 3, of the Bid Submittal Form which was included as part of the ITB it was indicated that "[s]pace to be located in Madison, Florida within boundaries depicted in the attached map (Attachment B.) Bidder to mark location of site on map Attachment B." The ITB referred to the Map as a "Map showing bid zone boundaries." See page 4 of the ITB. The Map was labeled as "Attachment B" and included the following language at the bottom of the Map: "WITHIN CITY LIMITS WITH EXCEPTIONS OF UNDESIRABLE LOCATIONS AS INDICATED." The Map included two areas within the City of Madison which were cross- hatched. At the bottom of the Map the word "UNDESIRABLE" had been written in black. This word only appears below the larger of the two cross-hatched areas. The Department intended to exclude any office space located within both of the cross-hatched areas on the Map. The Petitioner spoke by telephone with Robert Smith, a Facilities Services Managers Assistant for the Department, prior to submitting a response to the ITB. The Petitioner initiated the conversation. Based upon this conversation, the Petitioner was aware that property located within either of the cross-hatched areas on the Map was excluded from consideration under the ITB. The property which the Petitioner intended to offer to the Department in response to the ITB is located in the smallest of the two cross-hatched areas on the Map. The Petitioner was informed by Mr. Smith that the property located within the smaller cross-hatched area was excluded as undesirable. Mr. Smith informed the Petitioner that he could not submit a response to the ITB offering to rent property located in the small cross-hatched area. The exclusion from consideration of property located in the areas within the City of Madison which were located in the two cross-hatched areas of the Map could have been more clearly designated. The Department's designation of the excluded areas, however, was not ambiguous. It was clear that the Petitioner's property was located in an excluded portion of the City of Madison and that the Petitioner was aware of the exclusion of his property. Despite the Petitioner's knowledged that his property was located within an excluded area, the Petitioner submitted a response dated March 6, 1990, to the ITB proposing property located in the smaller cross-hatched area. In the Petitioner's response to the ITB he did not indicate the location of his property on the Map. Instead, the Petitioner submitted a different map of a portion of the City of Madison which included his property. Rules 10-13.006 and 10-13.007, Florida Administrative Code, require that protests of the bid specifications of the Department must be filed within 72 hours of receipt of notice of the bid specifications. The ITB did not indicate that persons adversely affected by the ITB could challenge the specifications of the ITB or that any such challenge had to be filed within 72 hours of receipt of notice of the ITB. The following statement appears of the last page of the Bid Submittal Form included with the ITB and submitted by the Petitioner: I hereby certify as owner, officer, or authorized agent that I have read the Invitation to Bid Package and all its attachments, and agree to abide by all requirements and conditions contained therein. . . . This certification was signed by the Petitioner. The Department decided to award the lease to the Intervenor. The Department determined that the Petitioner's bid should be rejected because the proposed property was located in an excluded area. The Petitioner filed a Formal Protest and Petition for Formal Administrative Hearing on April 23, 1990, with the Department. The Petitioner challenged the Department's proposed award of the lease to the Intervenor and asserted that he was the lowest and best bidder. The Petitioner did not challenge the specifications of the ITB. The Department filed a Motion to Dismiss on Mazy 4, 1990. The Petitioner filed a Motion for Leave to File Amended Petition and an Amended Formal Protest and Petition for Formal Administrative Hearing on May 14, 1990. For the first time, the Petitioner challenged the specifications of the ITB.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting the Department's Motion to Dismiss and dismissing with prejudice the Formal Protest and Petition for Formal Administrative Hearing filed by the Petitioner. DONE and ENTERED this 12th day of July, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 12th day of July, 1990. APPENDIX The Petitioner and the Department have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1-2 See 9. 3-5 Not supported by the weight of the evidence. 6 6-7. 7 and 11 Not relevant. 8-10 and 12-15 These proposed findings are consistent with Ms. Goodman's testimony. Ms. Goodman's opinions, however, are not supported by the weight of the evidence. Although this proposed finding of fact is generally true, the weight of the evidence failed to prove that the Petitioner was not aware that both cross-hatched areas were excluded areas. See 9. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2 and hereby accepted. 3 5-8. 4 7. 5 6. 6 12. 7 9. 8 13 and 17. 9 4. 10 12. 11 17. 12 15. 13 16. 14 18 and hereby accepted. 15 20. 21 and hereby accepted. 22 and hereby accepted. Hereby accepted. Cumulative. Hereby accepted. Copies Furnished To: John C. Pelham, Esquire Gary Walker, Esquire Post Office Box 13527 Tallahassee, Florida 32317-3527 John L. Pearce, Esquire District Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Tallahassee, Florida 32303-2949 Clay A. Schnitker, Esquire Post Office Drawer 652 Madison, Florida 32340 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0500
The Issue The issues in this case are whether, and how, the Florida Real Estate Commission (FREC) should discipline the Respondent, Theresia Helton, on charges that she: failed to account and deliver rental payments and deposits; was culpably negligent and in breach of trust in her dealings regarding rental property; failed to escrow rental payments and deposits; failed to properly reconcile her escrow account; and failed to make transaction agreements and bank statements available for inspection.
Findings Of Fact At the time of the events giving rise to the Administrative Complaint in this case, the Respondent, Theresia Helton, held two Florida real estate broker licenses (BK 3077530 and BK 3248280) and was the owner and qualifying broker for 1010 Apartments, Inc., a real estate brokerage firm. However, on May 22, 2013, FREC entered a Final Order suspending those licenses for five years. The Final Order is on appeal by the Division, which seeks to revoke the Respondent's licenses, as recommended by the Administrative Law Judge in that case. Eileen and Ernest Armitage ("the Armitages") reside in New Jersey and own a condominium located at 15599 Latitude Drive, Bonita Springs, Florida ("the property" or "condo"). In 2010, the Armitages began communicating with the Respondent and asked her to find a tenant for the property. In return for the Respondent's services, the Armitages verbally agreed to pay her a commission of ten percent of the annual gross rent. In September 2010, the Respondent obtained a tenant, Marion Ward Bentson, to rent the property for $1,400 a month and pay a security deposit in the amount of one month's rent. The Respondent filled in a form lease to begin on September 14 of that year. On September 8, 2010, the lease was signed by Ms. Bentson and by the Respondent on behalf of the Armitages (in one place as their agent, and in another as landlord). The Respondent collected the $1,400 security deposit and $700 prorated first month of rent from Ms. Bentson. The lease directed the tenant to mail future rent payments to "Ilene [sic] Armitage/1010 Apartments, Inc." at the brokerage's address in Naples. The Respondent then submitted the lease to the homeowners association (HOA) for approval. The lease was approved by the HOA on September 14, 2010, and became effective on that date. The Respondent kept the $2,100 collected from the tenant in payment of the $1,680 commission, plus other charges. Some details of the 2010 transactions remain unclear. The Armitages testified that the Respondent sent the lease to them and that they made corrections, signed the corrected lease, and returned it to the Respondent. The Respondent testified that the HOA sent the lease to the Armitages after approval and that no corrected lease signed by the Armitages was returned to her. A corrected lease was introduced in evidence. It indicates that Eileen Armitage corrected the spelling of her name, clarified that the Armitages were the landlord under the lease, clarified that future rent and notices were to be sent to the Armitages in New Jersey, initialed the changes, and signed the corrected lease on September 15, 2010. The corrected lease apparently was not presented to the HOA for approval, and it is not clear what happened to it. It is, however, clear from the evidence that the parties' subsequent conduct was consistent with the corrected lease, and that the Armitages had no complaints about the Respondent's conduct with respect to the Bentson lease. In July 2011, Ms. Bentson stopped paying rent and gave notice that she was moving out. The Armitages contacted the Respondent and asked her to help them find a tenant to replace Ms. Bentson. It was agreed verbally, or assumed, that the Respondent again would be paid a commission of ten percent of the annual gross rent. The Armitages testified that there also was a verbal agreement that the commission on the Bentson lease would be prorated, entitling the Armitages to a refund. The Respondent denied that there was any agreement to prorate the Bentson lease commission. On this disagreement, the Respondent's testimony was more believable. The Armitages remained in communication with the Respondent while she attempted to find a new tenant. At the end of August 2011, Laurie Ungar contacted the Respondent regarding the Armitage property, and the Respondent arranged for Mrs. Ungar to see the condo. Mrs. Ungar noted that there were scuff marks on the walls, trash that needed to be removed, and carpet and a patio deck that needed cleaning. She expressed her interest in renting the condo, if those items were corrected. The Respondent reported to the Armitages, who were under the impression that the condo already was in good condition and did not agree to spend money for additional repairs. The Respondent decided to proceed with the lease negotiations and arrange for whatever work would be needed to satisfy the Ungars. The Respondent met with Mrs. Ungar on August 31, 2011, and negotiated on behalf of the Armitages. The Respondent filled in a form lease to begin on September 21, 2011. Mrs. Ungar signed for herself and her husband and gave the Respondent a check for $75 for the HOA application fee. The lease identified "Ilene [sic] Armitage" as landlord and provided for notices to be sent to her, although no contact information was included for her. The Respondent signed as landlord in one place on the form and as agent in another. She also initialed the lease as landlord. By checks dated September 1, 2011, Mrs. Ungar gave the Respondent $500 for the first month's prorated rent, $1,500 for the following month's rent, a security deposit in the amount of $1,500, and a pet security deposit in the amount of $250. The Respondent reported to the Armitages that the Ungars signed the lease. She then sent someone to touch up the scuff marks on the walls and clean up the apartment. Either the Armitages or the HOA apparently asked for a pet fee from the Ungars, which they delivered to the Respondent by check dated September 13, 2011. The Respondent then submitted the lease to the HOA for approval. The lease was approved by the HOA on September 19, 2011. The Ungars moved in at 3 a.m. on September 21, 2011. When the Ungars arrived, they still were dissatisfied with the condition of the condo. The walls had been touched up with the wrong color paint, so it looked like graffiti. There was still trash at the condo, and the patio deck and carpet still needed cleaning, in their opinion. They contacted the Respondent, who came over with a can of paint and removed some of the trash. The Ungars remained very dissatisfied with the condition of the condo. Shortly after the Ungars moved in, the Armitages began asking the Respondent for a copy of the lease. For reasons not clear from the testimony, they did not receive the lease or any money from the Respondent and became increasingly agitated about it. At the end of the month, the Armitages received a final bill from the utility company. When they inquired, they were told that the utilities had been transferred to another payor, who was occupying the condo. They contacted the Ungars directly, and the Ungars told them that they still were dissatisfied with the condition of the condo and wanted to terminate the lease at the end of October and get their deposits refunded. The Armitages told them that they did not have the deposits, as the Respondent still had not forwarded them any money. Mr. Ungar went to the Respondent's office, told her about the conversation with the Armitages, and demanded a refund of the deposits. She told him she already had sent the money to the Armitages. On October 6, 2011, the Respondent emailed the Armitages to report her conversation with Mr. Ungar and tell them it was up to them if they wanted to let the Ungars out of the lease, but that she had earned her commission. She stated that she had cleaned up the condo for the Ungars after the Armitages had declined and had mailed the Armitages a check for $1,500, which was what was left of the moneys paid by the Ungars after deducting her commission in the amount of $1,800, a cleaning fee of $150, another $150 for pressure-washing the patio deck, a painting fee of $200, and another fee of $200 for cleaning and hauling out trash. There was no evidence that those sums actually were incurred by the Respondent or that any of the work had been done, except for the poor touch-up of the scuff marks on the walls. After the Respondent sent the email, she thought better of sending the $1,500 check since both the Armitages and the Ungars were claiming it. The money remained in her operating account. She believed she was entitled to keep the balance of the $4,000 paid by the Ungars. She did not notify FREC of any deposit dispute. On October 7, 2011, the Armitages emailed the Respondent to again ask for a copy of the signed lease and listing agreement. On October 10, 2011, they emailed to again ask for the signed lease and ask for the invoices for the work done (or at least contact information for the vendors). By email dated October 12, 2011, they followed up to again request the information. They got no response from the Respondent, except to say that she did not mail the check referred to in the email on October 6, 2011. The Armitages and Ungars renegotiated the lease. The Armitages reduced the monthly rent to pay the Ungars for painting, cleaning, and other work they did at the condo to make it satisfactory to them. The Armitages sued the Respondent and settled for $2,700, which was paid by check dated July 12, 2012. The Armitages used $2,000 from the settlement to return deposits to the Ungars. During the Division's investigation, the Respondent was asked to provide a copy of her agreement with the Armitages and her escrow bank account records. There were no such records. Later, a subpoena was issued for the records for the Respondent's operating account, which were produced. There was no evidence that the Division asked for the records for the operating account before issuing the subpoena. The Respondent's license is suspended until May 21, 2018, because the Division proved charges that in the fall of 2010, she was culpably negligent, in violation of section 475.25(1)(b), and failed to account and deliver, in violation of section 475.25(1)(d)1. The Respondent is the single mother of two daughters, whom she was supporting by income earned as a real estate broker, as well as child support payments. The Division has incurred costs in the amount of $825 in prosecuting this case against the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order: finding the Respondent guilty as charged in Counts I through V of the Administrative Complaint; revoking her licenses; and assessing costs in the amount of $825. DONE AND ENTERED this 21st day of November, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 21st day of November, 2013.
The Issue Whether the Respondent's real estate broker's license should be suspended, revoked, or otherwise disciplined based upon alleged violations of Chapter 475, Florida Statutes.
Findings Of Fact The Respondent, Peter H. Bos, Jr., is a licensed real estate broker in the State of Florida, holding License Nos. BK 0225668 and 0189099. He is the registered broker for Bos Realty Company, Inc., and Sandestin Realty, Inc. Bos Realty, Inc., and Sandestin Realty, Inc., are registered real estate brokerage companies. The Respondent is also the Chairman of the Board and Vice President of Sandestin Corporation, Inc. ("Sandestin") . Sandestin is not a real estate brokerage company and does not engage in any real estate business regulated under Chapter 475, Florida Statutes. Sandestin is a licensed hotelier. In 1987, Sandestin ceased acting as the management company of Sandestin Resort. Sandestin Corporation instead became a company which operated a hotel. In order to obtain rooms for its hotel operation, the corporation entered into leases with various local condominium owners, including Sandestin Resort unit owners. These leases were entered into under a landlord and tenant contract and not a management contract. The landlord and tenant contract did not establish any fiduciary relationship between Sandestin Corporation, Respondent, or the landlord/unit owner. Similarly, the landlord and tenant agreement did not establish any escrow relationship between Sandestin Corporation, Respondent, or the landlord/unit owner. During this time, the leasehold agreement did contain two typographical errors. One error, committed by the law firm who drafted the agreement, placed Sandestin Realty's name over the signature block at the end of the contract. The other error was contained in an exhibit to the contract and listed Sandestin Realty in its title. All of the typographical errors were discovered and corrected by 1988. None of the errors materially effected the understanding of the parties as to who those parties were or the relationship they had. In reality none of the parties involved in the contracts containing the typographical errors noticed either fallacy. Around May 22, 1987, Margaret Irwin purchased a unit from Sandestin Realty Company, Inc. She signed a landlord and tenant agreement dated March 25, 1987, between herself, as landlord, and Sandestin Corporation, Inc., as tenant. Although Ms. Irwin was somewhat confused about the exact relationship between the parties, the contract she signed was plain on its face and unambiguous in its language that the agreement she was entering into was a leasehold agreement with her as a landlord and Sandestin Corporation as a tenant. Ms. Irwin's confusion appeared to result from assumptions that emanated from her own mind. The evidence did not establish that any representation was made either on behalf of or by Respondent that the lease agreement was other than what it purported to be. Moreover, the evidence did not establish that Ms. Irwin's confusion was caused by any actions of Respondent or any of the typographical errors which were in the agreement at the time Ms. Irwin signed it. Up until 1989, Ms. Irwin received all of the lease payments she was entitled to receive under the lease agreement. In 1989, Sandestin Corporation experienced financial difficulties. Beginning in August 1989, Sandestin Corporation, on the advice of its attorneys, did not make the agreed upon lease payments to Ms. Irwin as well as other unit owners from which it had leased units. All of the unit owners's including Ms. Irwin, were made aware of Sandestin Corporation's financial difficulties in a letter dated October, 1989. Ms. Irwin elected to terminate her lease agreement with Sandestin Corporation and demanded the back rant which was owed to her. The back rent remains unpaid to this date. In late 1989, Sandestin Corporation filed for a Chapter 11 bankruptcy. That bankruptcy is ongoing today. The unit owners who elected to continue leasing their units to Sandestin Corporation have begun to receive incremental payments on the back rent owned to them by a special order of the bankruptcy court. Importantly, all of the unit owners, including Ms. Irwin, were treated as landlord/creditors of Sandestin Corporation. The money owed to these unit owners has been treated as property of Sandestin Corporation and therefore part of the bankrupt's estate. The money was not treated as property being held by Sandestin Corporation on behalf of and as fiduciary for these various unit owners. There was absolutely no clear and convincing evidence presented of any fraud, misrepresentation, scheme, trick, or device, or breach of trust on the part of Respondent. The language of the lease agreement is plain on its face and clearly establishes a landlord and tenant contract. The agreement did not establish any fiduciary or escrow relationship. Additionally, Respondent's duties in relation to Sandestin Corporation were not those which involved any real estate duties regulated by Chapter 475, Florida Statutes. Therefore, Respondent is not guilty of violating any of the provisions of 475.25(1)(b), (d), or (k), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, the pleadings and argument of the parties, it is therefore, RECOMMENDED that the Board enter a Final Order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January 1991. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January 1991. APPENDIX The facts contained in paragraphs 2, 3, 4, 5, 6, 12, 13, 14, 15, 24, 26, 26, and 30, of Petitioner's Proposed Findings of Fact are adopted. The facts contained in paragraphs 1, 7, 8, 9, 10, 11, 18, 20, 21, 22, 31, 32, 33, 34, and 35 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 16, 17, 19, and 28, of Petitioner's Proposed Findings of Fact are immaterial. The facts contained in paragraphs 23, 25, 29, and 36 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts in paragraphs 1, 2, 3, and 4 of Respondent's Proposed Findings of Fact are adopted. COPIES FURNISHED: Janine B. Myrick, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 E.C. Kitchen, Esquire Post Office Box 1854 Tallahassee, Florida 32302-1854 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact This case concerns what is-called a "Turnkey Lease". The program was developed by the State of Florida in 1971. It encompasses a situation where by agencies seeking space for their operations may, after a specific need is determined that cannot be filled by existing adequate space, solicit competitive bids from developers for the provision of land and the construction of a building thereon sufficient to-meet the agency's needs, for lease specifically to the agency requesting it. The Bureau of Property Management within DGS was given the initial responsibility to develop the guidelines, promulgate the rules, and seek statutory authority for such a program. The Bureau's current role is to work with agencies requesting this program. The agency certifies the need to the Bureau in addition to the fact that there is no available existing space present. The Bureau then determines agency needs and gives the agency the authority to solicit the bids for the turnkey project. Once the bids are then received, evaluated, and a recommendation for an award is forwarded by the agency to DGS, DGS reviews the supporting documents required by the provision of the Florida Administrative Code and either concurs or does not concur in the recommendation. If DGS concurs, the submitting agency is notified and is permitted to then secure the lease. Once the lease has been entered into; it is then sent back to DGS for review and approval as to the conditions; and thereafter the plans and specifications for the building are also referred to DGS for review and approval as to the quality and adequacy as well as code compliance. Section 255.249 and Section 255.25, Florida Statutes, set forth the requirements for soliciting and awarding bids for lease space in an amount in excess of 2,500 square feet. This provision requires that an award of this nature be made to the lowest and best bidder, and DCS utilizes that standard in evaluating and determining whether or not it will concur with an agency's recommendation. In the instant case, DHRS advertised for bids for the construction of office space in Palatka, Florida for its District III facilities. Before seeking to solicit bids, the District III staff conducted a search for other possible existing space within a five mile radius of the downtown area and located no adequate facilities. Thereafter, a Certification of Need was processed for a solicitation of proposals and approval was granted by DGS to follow through with the solicitation. A preproposal conference was advertised and held on October 14, 1983, and after project review by those present at the conference, bid opening date was set for November 22, 1983. Thirty-two bid packages were distributed and twelve bidders submitted proposals. The public bid opening was held as scheduled at 2:00 p.m., on November 22, 1983, in Palatka, Florida by Robert E. Litza, Facilities Services Coordinator for DHRS District III. Of the bids submitted by the twelve bidders, the lowest hid was rejected because of the failure of the bidder to comply with the requirements of the bid package. Of the remaining eleven bids, the four lowest were evaluated with the understanding that additional higher bids would be evaluated if the four lowest bids were found to be unacceptable. Among the four bids considered were bids of Chuck Bundschu, Inc., Kenneth R. McGurn, one of the Intervenors (McGurn submitted five prices scheduled for his bid and of these, only one was considered); Elizabethan, Petitioner herein; and TSU. Only three bids are pertinent to the discussion here. They are #8-C (McGurn); #11 (Elizabethan); and #12 (TSU). In pertinent particulars, these bids provided as to rental costs: 8-C 11 12 1st yr $14.00/$220,808 $8.95/$ 61,916.10 S 7.16/$ 49,532.88 2nd yr 14.00/ 220,8088 8.95/ 141,159.40 7.35/ 115,924.20 3rd yr 14.00/ 220,808 8.95/ 141,159.40 7.62/ 120,182.64 4th yr 14.00/ 220,808 8.95/ 141,159.40 8.08/ 127,437.76 5th yr 14.00/ 220,808 8.95/ 141,159.40 8.33/ 131,380.76 6th vr 14.00/ 220,808 8.95/ 141,159.40 8.59/ 135,481.48 7th yr 14.00/ 220,808 8.95/ 141,159.40 8.86/ 139,739.92 8th yr 14.00/ 220,808 8.95/ 141,159.40 9.19/ 144,944.68 9th yr 14.00/ 220,808 8.95/ 141,159.40 9.58/ 151,095.76 10th yr 14.00/ 220,808 8.95/ 141,159.40 10.09/ 159,139.48 Renewal Option 1st yr3.00/47,316 9.93/ 156,615.96 10.51/ 165,763.72 2nd yr3.00/47.316 9.93/ 156,615.96 10.99/ 173,334.28 3rd yr3.00/47.316 9.93/ 156,615.96 11.48/ 181,062.56 4th yr3.00/47.316 9.93/ 156,615.96 11.99/ 189,106.28 5th yr3.00/47.316 9.93/ 156,615.96 12.51/ 197,307.72 Total Basic Overall Lease 1-15 yrs $1,971,500 $2,115,430.50 $2,181,434.12 Average Sq.Ft. for 15 yrs $8.60 $9.20 $9.58 A recommendation by the evaluation committee which met at DHRS District III, that McGurn's bid be selected, was forwarded to DGS in Tallahassee through the Director of DHRS's General Services in Tallahassee on December 22, 1983. The terms of the successful bid and the reasons for its being considered lowest and best are discussed below. The successful bid for the lease in question, lease number 590:8030, upon completion of the committee's evaluation was also evaluated by Ms. Goodman in the Bureau of Property Management of DGS. She also considered the McGurn bid to be the lowest and best of the eleven non-disqualified bids. In that regard, not only Mr. McGurn's bid but all of the twelve bids received were considered and reviewed not only at the local level but at DHRS and DGS headquarters as well. In her evaluation of the proposal and the bids, Ms. Goodman considered the documentation submitted by DHRS. This included a letter of recommendation supported by a synopsis of all proposals, the advertisement for bids, and any information pertinent to the site selection process. In determining the McGurn's bid was the lowest as to cost of all the bids, Ms. Goodman compared the average rate per square foot per year for each. This did not take into con- sideration pro-ration of costs per year, but strictly the average over the fifteen year probable term of the lease (ten years basic plus five year option). According to Ms. Goodman, this same method of calculating cost has been used in every lease involving a turnkey situation and in fact in every lease since 1958 - as long as she has been with DGS. This particular method, admittedly, is not set forth in any rule promulgated by DGS. However, the agencies are instructed by DGS to advertise and bidders to bid on an average square foot basis, the basis utilized by Ms. Goodman and her staff in analyzing the bids submitted. In that regard, the request for proposals does not, itself, indicate how the calculation of lowest cost would be made by DHRS and DGS but it does tell prospective bidders what information to submit. This procedure has been followed exclusively in situations like this for may years and many of the bidders here have bid before using this same system. All bidders are considered on the same footing in an evaluation. They are notified of what information will be considered along with that of all the other bidders. Further, anyone who inquires as to the basis for evaluation will be given a straight and complete answer as to the method to be used. Petitioner contends that McGurn's bid does not conform to either the normal bidding procedure followed by contractors in this type of procurement over the past years or to the normal bidding procedures adopted by Respondent, DHRS. It urges that the questioned bid is non-responsive and front-end loaded to the detriment of DHRS. With regard to the front-end loading objection, Mr. Taylor, testifying for Petitioner, attempted to indicate by graphic evidence that Elizabethan's bid, which he claims is not front-end loaded, is cheaper to the State than that of McGurn. Due to the large rental cost of the McGurn bid in the opening years of the lease, the State would have to borrow money to make the large rental payments; the interest cost of which, when added to the $3.00 cost in the option years, raises the cost considerably and makes the bid not the lowest. Though Mr. Taylor testified to this he failed to produce any independent evidence to support it. In addition, Taylor urges, under the McGurn schedule, McGurn would recoup his entire construction debt (approximately $423.00 plus interest) in the first four years of the lease: Comparing the two bids, it appears that the State would pay McGurn approximately $494,500.00 more than it would pay Elizabethan for the same period during the first seven years of the lease. Considering this, it is Taylor's belief that McGurn's profit after the fourth year is excessive. He contends also that when, after the tenth year, McGurn's rental rate drops to $3.00 per square foot for the remaining five years which constitutes the option period of the lease, the State could not afford to leave the low figure and as a result, the ten year lease is converted to a l5 year lease which is unresponsive. Further, the $3.00 figure for the last years, which would ostensibly show a loss to McGurn, is misleading in that there would be sufficient income from the advance profit garnered in years 5 to 10, when invested, to cover the soft costs and more in these later years. Admitting that because of its involvement in other turnkey projects in Florida, Elizabethan is aware of the State policy on cost evaluation, Taylor contends that while his bid does not violate State policy, McGurn's bid does because it would be fiscally irresponsible for the State to pay so much up front. This conclusion is his opinion, however, and not supported by any independent evidence. Both expert witnesses, Respondents Scott and Perry, who testified for the Intervenor, TSU, agree that the present value of money should be considered in evaluating rental costs. Their major point of difference is in the percentage of discount rate to be applied. Dr. Perry urges that use of the 10% rate mandated by the U. S. Government in its procurements of this nature. Dr. Scott, on the other hand, considers this to be too high and urges a rate in the area of 3% be used. The significance of this is that at the lower of the range spread, McGurn's bid is lowest. At the higher end, TSU's bid is lowest. From 5.7% up to below 6%, Petitioner's bid is lowest. Whichever would be appropriate, the State has not adopted the present value of money methodology and the policy followed by the State is not to consider that methodology in analyzing costs. State policy is to use only the average rental methodology. There is, in addition, no prohibition against front- end loaded bids encompassed within this policy. By the same token, there is nothing in the bid package issued to all prospective bidders that in any way stipulates the method of computing lease costs or prohibits from loaded bids. DGS zone rates, criteria stipulating the maximum agencies can send on rent without approval by DGS, are not part of the bid package and do not constitute a factor in determining whether a bid is conforming or not. These zone rates may be waived by DGS at the time the proposed award is submitted for DGS approval. In practice, within the memory of Joseph Lambert, HRS' Administrator of Facilities Services, who administers the Department's leasing program, he cannot recall DGS ever denying a DHRS request for waiver of the maximum zone rate in any case where it was pertinent. In this case, since the lease payments at-least in the second through tenth years-of the McGurn bid exceed the zone limits, the award would have to be approved by the Governor and Cabinet in addition to DGS. It has not yet been placed on the Cabinet agenda because of the protests filed. As was stated before, there are no rules governing the evaluation of bids for leases of this nature. Oral instructions given to each agency, when applied here, reveal that the McGurn bid, as was seen above, has an average cost of $8.86 per square foot per year. TSU's bid costs $9.58 per square foot per year, and Elizabethan's bid costs $9.29 per square foot per year. These same calculations are followed on all turnkey and non- turnkey leases in the State. The reason the State uses this process instead of the present value of money methodology is that it is easy. DGS statistics indicate that at least 50% of the landlords in the approximately $32,000,000 worth of leases presently existing with the State are "Mom and Pop" landlords. These people are not normally trained lease evaluators. By using the straight average rental rate method, there are no arbitrary variables. It has always worked because people can understand it and all agencies which lease property in the State follow this procedure. In the opinion of Ms. Goodman, the costs involved in utilizing the present value of money methodology would far outweigh the paper savings to be gained, notwithstanding the testimony of Dr. Perry to the contrary. With regard to the option issue, it was the position of DGS in reviewing the proposals that the very low $3.00 lease cost per square foot in the last five years (the option period) did not make the McGurn bid unresponsive. There were no limits imposed upon the bidders except that a five year option to a ten year lease be included. Were it not there, the bid would be unresponsive. DGS would issue approval for a ten year lease with a five year option but not a fifteen year lease. Ms. Goodman cannot recall a situation in which an option was not exercised by it if the need for the space continued though there have been some instances where option costs have been renegotiated.
Recommendation Based on the foregoing, it is, therefore; RECOMMENDED THAT DHRS License Number 590:8030 be awarded to Kenneth R. McGurn. RECOMMENDED this 5th day of September, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkwav Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1984. COPIES FURNISHED: David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood 8Oulevard Tallahassee, Florida 32301 Morgan Staines, Esquire 2204 East Fourth Street Santa Ana, California 92705 Thomas D. Watry, Esquire 1200 Carnegie Building 133 Carnegie Way Atlanta, Georgia 30303 Steven W. Huss, Esquire Department of Health and Rehabilitative Services 1317 Winewood boulevard Tallahassee, Florida 32301 Ronald W. Thomas, Executive Director Department of General Services 115 Larson Building Tallahassee, Florida 32301 Steven W. Huss Assistant General Counsel Department of Health and Rehabilitative Services 1317 Winewood Blvd. Tallahassee, Florida 32301 Gary J. Anton, Esquire P.O. Box 1019 Tallahassee, Florida 32302 Harden King, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301
The Issue In relation to DOAH Case No. 05-0515, does the case involve the sale of securities as described in Chapter 517, Florida Statutes (2002), that would confer jurisdiction upon OFR to proceed to a hearing on the merits of the Administrative Complaint that forms the basis for DOAH Case No. 05-0515, and to what extent, if any, the named Respondents have been involved with the sale of securities sufficient to declare jurisdiction over their activities? Preliminary to that determination is the related issue concerning the possible pre-emption of OFR's regulatory authority by virtue of the regulatory action previously taken by the State of Florida, Department of Business and Professional Regulation, Division of Land Sales, Condominiums and Mobile Homes (DBPR) under authority set forth in Chapter 721, Florida Statutes (2002)? Argument has also been set forth concerning the significance of court cases as they might influence OFR's ability to declare their regulatory authority in this instance.
Findings Of Fact * * * 2. RESPONDENT is the 'creating developer' of the Universal Luxury Lease Plan, a personal property 'timeshare plan' as those terms are defined in sections 721.05(9)(a) and 721.05(37), Florida Statutes, located in the city of Sanford, Florida. * * * On or about July 10, 2003, DIVISION was made aware of a newspaper advertisement for Universal Luxury Lease Plan. This advertisement, promoted the purchase of a timeshare interest in the Universal Luxury Lease Plan as an investment that offered purchasers a 10 percent per year return on their investment. On July 25, 2003, DIVISION'S investigators were given an application package containing the Universal Luxury Lease Plan Enrollment Forms, CD-ROM, Public Offering Statement, Contracts and Motor Coach Brochures. The application package stated that it was advertising material being used for the purposes of soliciting timeshare interests. It described a component of the timeshare plan called the 'Affinity Rental Program' and stated that the program will typically produce a monthly income of 10 percent of the lease-hold ownership interest.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That an order be entered by OFR finding jurisdiction to proceed with the Administrative Complaint in DOAH Case No. 05- 0515 on its merits. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 6th day of January, 2006.
The Issue The questions presented here concern the entitlement of the Petitioner or Intervenor to be awarded lease rights under the Respondent's proposed Lease No. 590:8026, in that Petitioner and Intervenor have claimed that entitlement to the exclusion of the other party.
Findings Of Fact Respondent invited bid proposals for the provision of approximately 32,000 square feet of office space for its District VIII operation in Fort Myers, Florida. Petitioner, Chuck Bundschu, Inc., and Intervenor, Walter Lee Johnson d/b/a Walco Leasing Company, responded to the bid proposal by offering to provide the office space. Those responses may be found as part of the Composite Hearing Officer's Exhibit. Following the October, 1981, submittal of bid proposals, a bid evaluation committee was appointed by the Subdistrict Administrator for District VIII to consider the bids. In turn, he afforded guidance to that committee on the subject of the evaluation of the proposed bids offered by Bundschu and Walco, the only bidders for the project. The evaluation committee performed the task of weighing the bid proposals, in keeping with evaluation criteria which are outlined in Respondent's "Facilities, Acquisition and Management Manual" dealing with the procurement of lease space, which criteria are set forth in a form referred to as "HRSM 70-1, page A1-4-8," which is attached to chapter four of the manual. All criteria used for the evaluation process were drawn from that form with the exception of criterion No. 7, related to staff and client marking which was a product of this bid evaluation effort. (A copy of the HRS manual and forms may be found as Respondent's Exhibit No. 1, admitted into evidence. The evaluation committee's summarization utilizing the form criteria and the additional parking criterion may be found as a part of the Hearing Officer's Composite Exhibit, which is a replication of the original.) The HRS manual for procuring leased space is a publication of February, 1980, and establishes uniform guidelines by which bid proposals are considered by local officials who are part of Respondent's organization. Nonetheless, the exact weight to be afforded each criterion outlined in the manual is determined by the local evaluation committee. Weighing concerns the subject of awarding numerical values for beach bidder related to the various criteria with a maximum possible score being 100 points. On the basis of the evaluation performed by the committee, the Bundschu total was 88.25 points and the The Walco point total was 82 out of the possible 100 points. Consequently, the evaluation committee recommended that Bundschu be awarded the lease. Mark Geisler, in his capacity as Subdistrict Administrator, for District VIII, concurred in this evaluation as may be seen in his November 6, 1981, transmittal of the bid materials and associated evaluation, which transmittal may be found as pert of the Hearing Officer's Composite Exhibit. The District Administrator, District VII, in the person of Frances Clendenin, who was acting for the District Administrator, Ivor D. Groves, Ph.D., also recommended acceptance of the Bundschu bid. This position was made known by a memorandum of November 16, 1981. A copy of that recommendation is found as a part of the Hearing Officer's Composite Exhibit. The recommendations spoken to thus far were made known to Lester C. Missman, an official within the Division of General Services of the Department of Health and Rehabilitative Services. This division was, at the time of the bid proposals, and is now, headed by Dr. Homer Ooten, whose function within Respondent's organization includes the responsibility to evaluate lease proposals involving the Respondent agency and to make a final decision on the question of the lease award, based upon a review of the local subordinate unit's recommendation. By this, it is meant that the lease by Health and Rehabilitative Services as "user agency" is signed by Ooten based upon a delegation of authority to him through the vehicle of correspondence signed by the agency head. Ooten, upon considering the recommendation of the District Administrator's office, the Subdistrict Administrator and the evaluation committee, did not find fault with the criteria nor the point weighing scheme used in the evaluation process. He did question the cost analysis performed by the evaluation committee on the subject of client mileage for those clients receiving services from Respondent in a move from the HRS office in the Bundschu building where they were located at the time, to the building where Walco intended to let property. This was a distance of seven/tenths (7/10) of a mile and based upon the number of clients receiving services, there would be an estimated $100,000.00 in client mileage cost increase. This item was not deemed to be an appropriate consideration by Ooten and was disregarded in his review of the cost analysis performed by the evaluation committee. That cost analysis may be found as part of Respondent's Composite Exhibit No. 2, and includes interlineations by Ooten in his opinion on the subject of the cost analysis. That analysis had indicated an overall advantage of approximately $11,000.00 in favor of Bundschu and was premised upon costs related to Item 12 in the criteria, which criterion is cost of moving. It assumed a difference of over $131,000.00 in moving costs, the majority of which costs pertained to client inconvenience ($100,000.00), discounting $120,000.00 plus dollars related to the difference in the bid amount between the Walco and Bundschu bids which bid estimate was in favor of Walco. Ooten's opinion on the subject of the priority of including $100,000.00 plus dollars in clients' travel costs, when considered in the context of point awards under Item 12 in the criteria, lead Ooten to believe that the differential in point awards would not result in a 9.25 value of Bundschu versus a zero value for Walco. In his mind, the differential would be much less. Ooten made his own evaluation of moving costs per se, and through that process determined that approximately $15,600.00 would be necessary for a move into the Walco facility whereas $5,600.00 would be involved in the Bundschu move, which required the expansion of existing space in the Bundschu facility. Based upon an evaluation of the point differential in the rental rate criterion which was a differential of 2, that is 30 points out of a possible 30 for Walco and 28 points out of a possible 30 for Bundschu, Ooten also opined the this was an unreasonable assessment in view of the fact that the Walco bid amount was more than $120,000.00 less than the Bundschu bid. This taken together with the fact that there only existed approximately a $9,000.00 difference on moving costs between Bundschu and Walco, which was in favor of Bundschu, and there having been indicated a 9.25 out of a possible 10 point difference in Item 12 on the question of costs related to moving, led Ooten to believe that the true factual status of criteria Nos. 1 and 12 was not as depicted by the evaluation committee. Per Ooten, with proper assessment Walco would have received a higher point count than Bundschu through the process of applying the bid criteria, as well as being the lower bidder from the point of view of rental rates alone. After several exchanges with the District level personnel of Respondent who had been involved in the lease evaluation process, in which, on two (2) occasions, the local officials continued to support their initial opinion of the propriety of the award to Bundschu, a decision was made at the District VIII level to support the award of the lease to Walco as may be seen in the January 6, 1982, correspondence from the District Administrator to Missman, a copy of which may be found as Respondent's Exhibit No. 4, admitted into evidence. On January 6, 1982, Ooten issued a letter to the District VIII Administrative Services Director indicating the authority to award Lease No. 590:8026, formerly referred to as No. 590:1472, for the benefit of Walter Lee Johnson d/b/a Walco Leasing Company. Having learned of this decision and in keeping with the provision Subsection 120.53(5), Florida Statutes, Bundschu, through counsel, indicated opposition to that award on January 12, 1982, followed by a formal petition letter setting forth grounds for the opposition, which petition was filed on January 19, 1982. This series of documents is part of the Hearing Officer's Composite Exhibit, through copies. Subsequently, Items 4 and 6 in the petition letter were resolved between the parties without the necessity of a hearing and this is borne out by a copy of the February 1, 1982, correspondence from counsel for the Respondent to counsel to the Petitioner, part of the Hearing Officer's Composite Exhibit. The matter was then referred to the Division of Administrative Hearings for a formal Subsection 120.57(1), Florida Statutes, hearing by correspondence from the Assistant General Counsel for Respondent, dated February 4, 1982, a copy of which may be found as a part of the Hearing Officer's Composite Exhibit. There followed the intervention of Walter Lee Johnson as a party of record and the hearing was held on April 27, 1982. Petitioner's first contention deals with the idea of discounting the lease value based on the value of the "stream of future lease payments." This theory is contended for through Robert Sizemore, C.P.A., expert witness of the Petitioner. He would call for the discount of lease payments on the theory that present dollars will have a discounted value in the future, as the lease period unfolds. Taking into account the method of payment by the Respondent and the vicissitudes involved in attempting to establish the value of today's dollar at a future time, this theory of discounted dollars at a 10 percent or 12 percent rate per annum in succeeding years is not indicated. Assessment through the legislative appropriations process of sufficient funds to meet lease payment demands is not contingent upon the value of the dollar at any given point in the history of the lease. Therefore, the "stream of future lease payments" concept is inapplicable here. Likewise, trying to project the value of today's dollar at some future date is so tenuous as to be an unacceptable method to evaluate the competing lease proposals. Finally, even if this method was used, a 10 percent discount rate for inflation would leave approximately a $67,000.00 difference in the bid proposals and a 12 percent per annum discount rate related to inflation would leave approximately $52,000.00 difference in the bid proposals, in favor of the Walco bid. Petitioner has contended that Respondent failed to properly account for direct moving expenses. In that regard, the calculations made by Ooten on the question of moving expenses as reported above are accepted as fact. As a third claim, Petitioner has alleged the agency s disregard for recommendation of its evaluation committee in making the lease award. While the initial recommendations of the evaluation committee and staff were disregarded, the District Administrator eventually accepted the point of view of the Division of General Services within the Respondent's Department. Moreover, even if the local officials within the Respondent's Department had not accepted Ooten's viewpoint, the initial evaluation committee's development of criteria was flawed and the Ooten perception was correct, leading to a decision in favor of Walco. Finally, the contention by Petitioner that the agency did not seek adequate input from third parties affected by the relocation of the facility was not demonstrated through testimony. The method for review of the proposed lease was acceptable and to the extent that it required an appreciation and response to the needs of others not directly involved in the lease process, it has been amply afforded. Evaluation was in keeping with Respondent's "Facilities, Acquisition and Management Manual, HRSM 70-1, fourth chapter" and the award is based upon concurrence of the Division Director of the General Services Division of HRS pursuant to that chapter. Through argument, counsel for the Petitioner has also referred to the fact that in the initial evaluation process set forth in the sixth criterion, superior points of 2.5 for Walco as opposed to 2.25 for Bundschu had been awarded, when in fact the narrative summary of the reasons for such awards indicate an advantage to Bundschu. Even if the .25 points were allowed in the favor of Bundschu, this would not change the result.
Findings Of Fact By Outdoor Advertising Space Lease Agreement dated February 19, 1985 (Exhibit 1), Harry Moody Outdoor Advertising, Inc. leased property along SR 52 520 feet west of Hicks Road to be used for an outdoor advertising sign, applied for and was issued sign permit tags for a structure at this location. That lease agreement provided that in the event of a bona fide sale of the property the lessee agrees to remove the billboards upon 30 days written notice. By letter dated July 10, 1986 (Exhibit 2) the current owner of the property rescinded the prior lease agreement with Harry Moody Outdoor Advertising, Inc. and requested removal of the sign. A building permit for a sign to be erected by Greater Outdoor Advertising at this location was issued July 24, 1986 (Exhibit 3), subject to removal of the Moody sign.
