Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Petitioner, Department, was responsible for the certification and regulation of pest exterminating services in Florida. Respondent, Bernard Kolkana,was a certified operator in charge employed by Palm Beach Exterminating Service, Inc., which is located at 2110 Florida Mango Road in West Palm Beach. The Respondent, Michael F. Kilby, was an employee of Palm Beach Exterminating Services, Inc. On September 25, 1989, Michael F. Kilby, in his capacity as a representative of Palm Beach Exterminating Service, Inc., and working under the direct supervision of certified operator in charge, Respondent Kolkana performed a termite inspection at the home of Neil S. Mallard located at 3306 Fargo Avenue in Lake Worth. At the time of the inspection, Mr. Kilby found no visible evidence of subterranean termite activity or damage and issued a written report stating he had inspected the entire structure and did not observe visible evidence of wood-destroying organisms, live wood-destroying organisms, any visible damage, or visible evidence of previous treatment. Sometime thereafter, Mr. Mallard, because he was unable to operate a sliding pocket door, removed the siding near the door base and observed what he thought to be infestation. He also observed what appeared to him to be termite damage in a kitchen cabinet. Therefore, he requested a reinspection by Mr. Kilby on October 6, 1990. At that inspection, Mr. Kilby observed extensive termite damage around the sliding glass door which was inoperable as a result of damage to the frame and wall structure; numerous areas of subterranean termite mud shelter tubing around the perimeter of the house; and termite damage throughout the garage door frame. Kilby also noted that Mr. Mallard had removedcertain areas of the house siding, and evidence of a secondary moisture source in that there were water spots in the area above the sliding door. This indicated to him a possible roof leak. When Mr. Kilby pointed out to Mr. Mallard the numerous areas of termite mud tunnels around the base of the house, he was told by Mallard that they must be new because he, Mallard, had recently had the outside of the house pressure cleaned prior to having it painted and there had been no evidence of tunnels then. Mr. Kilby did not conduct a complete inspection of the house on October 6, 1990 and he was not advised of any termite problem in the kitchen cabinets. As a result, he did not examine that area. No evidence was presented to contradict Kilby's testimony. On October 24, 1990, a subterranean termite treatment was performed at this property by Orkin Pest Control. At the time of this treatment, Orkin's representative noted no evidence of visible and accessible live wood-destroying organisms in either the kitchen cabinets, the sliding door frame, or the garage door frame. The treatment area included only the cement slab on the patio and the exterior kitchen wall. Nonetheless, on or about December 17, 1990, Mr. Mallard filed a complaint about the Respondent's September 25, 1989 inspection with the Department. On March 8, 1991, Mr. Mallard again contacted Orkin Pest Control and reported additional evidence of subterranean termites. Several days later, on March 21, 1991, Orkin's servicemanager examined the Mallard residence, performed a reinspection, and after noticing evidence of live subterranean termites, performed a re-treatment. On April 2, 1991, pursuant to Mr. Mallard's December 17, 1990 complaint, Joseph Parker, an entomologist inspector and expert in the field, inspected the residence and took photographs of the damage. Mr. Parker's report, issued on May 3, 1991, indicated his opinion that the evidence of live infestation or the visible and accessible evidence of termite damage should have been detected by Mr. Kilby when he performed his September 25, 1989 inspection because of the extensive damage the insects had done throughout the Mallard residence. He indicated that the damage he observed on April 2, 1991 appeared to him to have existed for from three to five years prior to treatment, and his inquiry of the homeowner indicated that no repairs were done to the home between the time of Kilby's inspection in September, 1989 and Parker's inspection on April 2, 1991. Mr. Parker was unaware, when he issued his report on May 3, 1991 that Orkin had done a re-treatment on March 22, less than two weeks prior to his inspection. A secondary moisture source, such as that which was observed by Mr. Kilby during his reinspection in October, 1990, can increase the rate of subterranean termite activity and damage. Subterranean termite activity in a home can be hidden for quite a while, and visibility of that activity is changeable and does not necessarily appear at the beginning of termite activity. The mud tunnels can be formed relatively quickly. While Mr. Parker visited the property and observed the damage himself, Susan McKnight, testifying on behalf of the Respondent's did not. Nonetheless, she is highly qualified in entomology, holding a Master's of Science degree in the field, and has six year's research experience and 10 years experience with the Department as the former holder of Mr. Parker's position. In fact, she spent several weeks training him when he was first hired. Based on her review of the records of the Mallard inspections, she concluded she could not have formed the opinion reached by Mr. Parker because the time between the inspections was too great. Eastern termites eat wood at a rate based on the number of insects, the moisture present, the accessibility to the structure, and other items. Because this is a tropic environment, the rules generally applicable to the determination of time of damage are questionable when the elapsed time is more than one year. She believes any estimate indicating damage existing for over a year is unreliable. The re-treatment done by Orkin normally would not be done unless there was evidence of live termites. Under Department rules, re- treatment of property is permitted if an active infestation is noted; if the certified operator determines that the chemical barrier has been disturbed or rendered ineffective; or if a technician observes an incomplete original treatment. According to Ms. McKnight, there are many ways an initial treatment might be ineffective, but the most common reason for re-treatment is the presence of moisture which makes it possible for the termites to not have to return to the soil forwater and to remain in the property. Mr. Parker indicated that in his opinion, evidence of live infestation or visible and accessible evidence of damage was available and should have been detected by Mr. Kilby when he did his September 25, 1989 inspection. Ms. McKnight, on the other hand, indicates that the evidence available was unreliable and she disagrees with Parker's conclusion. Taken together, the evidence is neither clear nor convincing that Kilby missed evidence in the Mallard house he could have and should have seen, or that his inspection was not consistent with good industry practice and standards. On March 9, 1990, Mr. Kilby also performed a termite inspection at the residence of Aladberto Valcarcal at 15 Lake Arbor Drive in Palm Springs. At this time, Kilby found no visible evidence of subterranean termite activity or damage and issued a report to that effect. Nine months later, on December 19, 1990, the homeowner filed a complaint with the Department alleging that Kilby and Palm Beach Exterminating Service, Inc. had failed to report evidence of damage at the time of the inspection. This complaint was based on the fact that on December 7, 1990, a representative of Tomasello Pest Control Company performed an inspection of that property and found evidence of subterranean termite damage and activity. As a result of the December 7 complaint, Mr. Parker did an inspection of the Valcarcal residence and on April 24, 1991, subsequent to his report being issued, Tomasello did a treatmentfor subterranean termites at that residence. On June 4, 1991, Tomasello performed a re-treatment for termite activity in the Mr. Parker did not notice, during his December, 1990 inspection, any ongoing termite activity problem in the kitchen cabinet area of the Valcarcal home. Because he saw no evidence,. he assumed there was no termite activity going on there. As the evidence shows, however, the subsequent termite damage noted in June indicates that activity had been going on for a while and must have been present at the time of Parker's inspection at which he found no activity. Again, the evidence of improper performance by Kilby is neither clear nor convincing. There is no evidence of record to demonstrate that Respondent Kilby was inadequately trained or supervised as a termite inspector for Palm Beach EXterminating Service by Respondent Kolkana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaints filed in these cases against Bernard Kolkana and Michael F. Kilby be dismissed. RECOMMENDED in Tallahassee, Florida this 14th day of November, 1991. ARNOLD H. POLLOCK 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 14th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120,59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER; As to the Mallard property: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 7. Accepted and incorporated herein. 8. - 11. Accepted and incorporated herein. 12. - 14. Accepted and incorporated herein. & 16. Rejected as not supported by competent evidence of record. Rejected as not supported by competent evidence of record. Accepted. Accepted and, as pertinent, incorporated herein. Accepted and incorporated herein. Accepted. As to the Valcarcal Property: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 7. Accepted and incorporated herein. Not supported by competent evidence of record. & 10. Rejected as not supported by competent evidence or record. 11. Merely a restatement of testimony. FOR THE PETITIONER: As to the Mallard Property: & 2. Accepted and incorporated herein. 3a. - f. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. & 8. Accepted and incorporated herein. - 11. Accepted. Accepted. Accepted. Not proven. 15.- 17. Accepted and incorporated herein. As to the Valcarcal property: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 7. Accepted. 8.- 10. Accepted. Accepted. & 13. Accepted. 14. Accepted. COPIES FURNISHED: Karen M. Miller, Esquire DHRS District IX Legal Office 111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 33401 Patrick C. Massa, Esquire Suite 110 11891 U. S. Highway One North Palm Beach, Florida 33408-2864 John Slye General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact At all times material hereto, Respondent has been a certified building contractor in the State of Florida, having been issued License No. CB CO24584. At all times material hereto, Respondent was the qualifying agent for Southern Construction Technologies, Inc. In March, 1988, Alfred and Martha Entrekin entered into a contract with Southern Construction Technologies, Inc., whereby they agreed to pay the sum of $178,000 for construction of a custom-built home. Since the Entrekins were unable to qualify for the financing needed for construction, Southern Construction obtained a construction loan on their behalf. Despite delays, construction commenced in May of 1988 and continued through October, when, the closing on the residence took place, subsequent to the issuance of a certificate of occupancy by the Town of Davie. Just prior to the closing, a "punchlist" was prepared by Respondent and the Entrekins. That punchlist, which became part of the closing, contains 24 numbered items. (Due to misnumbering, the punchlist says 25.) Thirteen 0of those items on the copy of the punchlist offered in evidence by the Petitioner have been crossed off that list. Of the remaining 11 items, the evidence at final hearing reveals that some were corrected and some items were not the subject of any evidence offered by either party at the final hearing. Although additional items appear to have been added to the punchlist by the Entrekins sometime after the closing, those items will not be considered in this cause since no evidence was offered to indicate that those items were agreed to by the Respondent at the time of closing and no evidence was presented as to when those items were added to the original punchlist by the Entrekins. At the time of closing, the sum of $1,500 was placed in escrow to ensure completion of the punchlist by Respondent. Respondent performed some of the punchlist work on the day of the closing and continued working on the punchlist items for the next three weeks. On January 11, 1989, the Entrekins' attorney sent a demand letter seeking the release of the funds placed in escrow at the closing. Attached to that demand letter was a list of 16 items allegedly remaining on the punchlist. Some of the items on the new "punchlist" submitted by the Entrekins did not appear on the punchlist agreed to by the parties at the closing. Others did appear on the closing punchlist but had been struck through and initialed by Mrs. Entrekin, assumedly as having been completed, on the copy of the closing punchlist offered by Petitioner as an exhibit in this cause. In response to the demand letter, Respondent authorized the release of the $1,500 in escrow to the Entrekins. Respondent admits that at the time that the money was released to the Entrekins, there were still some repairs needed to the rake tiles on the roof and he had not seeded the backyard. Respondent testified that four rake tiles on the eaves were missing, some were misaligned, and some had not been "mudded" in with mortar, but no broken tiles remained on the roof. He also testified that he had not seeded the backyard because the Entrekins had not yet placed fill in the backyard, an item which Mr. Entrekin admits was his responsibility as provided in the contract between the Entrekins and Southern Construction Technologies, Inc. The only evidence submitted in corroboration of the complaints of the Entrekins consists of several invoices. In March, 1989, the Entrekins obtained an estimate for roof repairs from Warren Roofing, Inc., in the amount of $1,200. That invoice indicates the need to replace 80 broken tiles on the roof, the need to remove and replace approximately 130 rake tiles to be secured with mortar tinted to match (although Donald Warren testified that the tile used is nail-on tile which does not require mortar), and the need to "repair defects" in two rear valley areas. Warren Roofing was never hired to effectuate the repairs for which it had submitted its $1,200 estimate. The extensive work set forth in the estimate in March of 1989 is inconsistent with the roofing inspection which would have taken place prior to the certificate of occupancy issued prior to the closing in October of 1988. The only roofing repair effectuated to the Entrekin house by anyone other than Respondent was work performed by Warren Roofing in July of 1989 repairing a leak around the skylight. Petitioner also offered in evidence two invoices from pool services dated March of 1989. One invoice in the amount of $275 represents the cost of acid washing the pool, and the other invoice is for $230 to "filter pool water." Due to electrical problems, the water in the pool was not filtered for two days during the period of construction of the Entrekin house. No evidence was offered to show that the absence of filtering a pool for two days would require it to be acid washed, and no evidence was offered in support of the services performed or the need for the services represented by the second invoice. Another invoice represents the cost of 20 loads of muck for the backyard at a cost of $600, and $150 to rent a bulldozer. Since the muck for the backyard was the responsibility of the Entrekins, the bulldozer charge accompanying the 20 loads of muck is, in all probability, also the responsibility of the Entrekins. The last invoice submitted in evidence also bears the date of March of 1989 and represents 50 pounds of grass seed, in the amount of $110.50, a cost item which Respondent admits was his responsibility at the time that the escrowed monies were released to the Entrekins.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of January, 1991. LINDA M. RIGOT 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 25th day of January, 1991. COPIES FURNISHED: Charles N. Tetunic, Esquire Becker, Poliakoff & Streitfeld, P.A. Post Office Box 9057 Fort Lauderdale, Florida 33310-9057 Joseph Stephen Sharrow, Esquire Post Office Box 8995 Fort Lauderdale, Florida 33310 Daniel O'Brien Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent, Nemi, Inc., should pay a $500.00 administrative fine for maintaining an unpermitted stationary installation that is reasonably expected to be a source of water pollution (Count I); whether it should pay an administrative fine of $9,500.00 for failing to submit a completed Site Assessment Report (SAR) within 270 days of discovery of the discharge of chemical solvents (Count II); whether it should pay investigative costs and expenses in the amount of $1,500.00 incurred by Respondent, Department of Environmental Protection (Department) (Count III); and whether it should take corrective action, as described in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice of Violation) issued on January 23, 2009.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is a for-profit corporation registered to do business in the State. Respondent's president and registered agent is Neil Schuberg, who represented the corporation at hearing. Respondent is the owner of a 1.1-acre parcel of real property located at 6801 Northwest 17th Avenue, Fort Lauderdale, Florida. The property is situated in what is known as the Gateway Industrial Center just south of the City of Pompano Beach and midway between the Florida Turnpike and Interstate 95. The parcel is rectangular shaped and is approximately 90 feet wide by 180 feet long. The property is further identified by the Broward County Property Appraiser as Parcel Identification Number 494209050040. A one-story warehouse and parking lot are located on the property, which is currently leased by Respondent to a testing laboratory. The evidence shows that for at least since 1981 David R. Ligh owned the property until his death. After he died, his widow, Elsie M. Ligh, sold the property in 1994 to Clayton John Pierce subject to a mortgage in the amount of $167,640.00. Mr. Pierce began operating a business on the premises known as Combined Roof Services, Inc. In 1995, Mr. Pierce decided to sell the property. A potential buyer, S & S Propeller Company, retained the services of Buck Eco-Logic, Inc., an environmental consulting firm, to prepare an environmental site assessment for the purpose of "determining the suitability of property for ownership by [S & S Propeller Company]." When it first inspected the site in July 1995, Buck Eco-Logic, Inc., discovered three thirty-five gallon drums and a twenty-gallon black plastic tub, all labeled "hazardous waste" and reflecting that they had contained tetrachloroethene (also known as perchloroethylene) waste. This is a chemical solvent that is typically used by dry cleaning establishments. The labels carried the name and "EPA ID number" of Family Dry Cleaners located at 6804 Stirling Road, Davie, Florida, an address which appears to be around ten to twelve miles south of the subject property. The three drums were lying on their sides on the northern end of an asphalt parking area beneath overgrown Brazilian pepper trees and were empty; the empty twenty-gallon tub was located inside the building on the property. Soil borings on the property performed by Buck Eco- Logic, Inc., revealed concentrations of tetrachloroethene at 10,613 parts per billion, which exceed allowable standards. Tetrachloroethene and its breakdown products are a solid waste, as defined by Florida Administrative Code Rule 62-701.200(113). A Phase I Environmental Site Assessment (Phase I ESA) dated August 13, 1995, was prepared by the consulting firm and sets forth in detail the results of its inspection. See Department Exhibit 2. The sale was never consummated. Later that year, Mr. Pierce engaged the same consulting firm to perform a Phase II Environmental Site Assessment of the property. That assessment revealed concentrations in groundwater ranging from 8,840 parts per billion to 173,000 parts per billion of tetrachloroethene, which exceed the State Clean Soil Criteria and State Maximum Contaminant Levels. The report, issued on October 13, 1995, was received in evidence as Department Exhibit 3. On October 30, 1995, a Mr. Pivnick, an attorney with the firm of Dombroff & Gilmore, P.A., which represented Mr. Pierce, notified the Department by letter that the empty drums and tub had been discovered on the property. The letter also attached a copy of the Phase I ESA. Mr. Pivnick was instructed by the Department to contact the local police department to report the incident as well as the state warning system for reporting discharges to the environment. Also, the Department contacted other local agencies and the United States Environmental Protection Agency (EPA). In October 1995, Mr. Pierce vacated the premises and ceased operating Combined Roof Services, Inc. In January 1996, he began leasing the property to Sun Valley Industries, also a roofing repair business, until that firm vacated the premises in December 1997. With the use of grant monies, the Department engaged the services of International Technology Corporation to prepare a Preliminary Investigation Report (PIR) for the property. That report was issued on February 13, 1997. See Department Exhibit The PIR recommended that additional monitoring of the site (through shallow monitoring wells, soil samples, groundwater samples, and groundwater flow direction) be made to quantify the presence of chlorinated solvents. Again with the use of grant monies, in 1997 the Department engaged the services of Post, Buckley, Schuh & Jernigan, Inc., to prepare a Site Inspection Report (Report) for the subject property. The Report was issued in March 1998. See Department Exhibit 5. Excessive tetrachloroethene, Cis-1, 2- dichloroethene, and trichloroethylene were detected in ground water samples, while tetrachloroethene was detected in all seven soil samples. On April 2, 1998, Ms. Ligh assigned the mortgage on the property to Nemi, Inc., for around $100,000.00. Mr. Schuberg explained that he was able to purchase it at a discount because Mr. Pierce had ceased making payments on the mortgage and had warned Ms. Ligh that if she foreclosed on the mortgage, she would be responsible for cleanup costs on the property exceeding a million dollars. While Mr. Schuberg acknowledged that he was aware of a contamination problem on the property, he says the mortgage was purchased as an investment, and he never thought he would actually acquire the property because he believed Mr. Pierce would continue to make the mortgage payments. After failing to make payments on the mortgage, on September 21, 1999, Mr. Pierce executed a Warranty Deed in Lieu of Foreclosure in favor of Nemi, Inc. Based on conversations with Mr. Pierce at that time, Mr. Schuberg says he was under the impression that the spill was much smaller than it actually was, and that it would be cleaned up by the Department. At hearing, Mr. Schuberg characterized Mr. Pierce as "a hustler and a liar." After Mr. Pivnick's report of contamination was received, the Department, along with the Broward County Department of Natural Resource Protection, initiated an investigation (probably in late 1995 or early 1996) in an attempt to verify the source of the contamination. Because Family Dry Cleaners "was on the top of [its] list," the Department first sought to determine whether that firm had actually deposited the drums and tub on the subject property. It learned that in 1994, or a year before the contamination was reported to the Department, Family Dry Cleaners had been evicted by its landlord, Lincoln Park. According to the Department, this "led to a dead- end" as far as Family Dry Cleaners was concerned. However, that business had been replaced by another tenant, Liberty Dry Cleaners. The Department then attempted to ascertain whether Lincoln Park or the new tenant might have been responsible for transporting the drums and tub to the subject property and dumping the waste. However, the Department was unable to confirm that either of the two had done so. Photographs of the drums and tub were made by Buck Eco- Logic, Inc., when it conducted an assessment in July 1995. Because the empty drums and tub were later removed from the site by unknown persons, the Department was only able to review the photographs when it conducted its investigation. Photographs of the drums indicated that they were larger than the twenty-gallon drums normally used by a dry cleaning establishment, and the labels on the drums were not perforated or dot matrix, which are more typical of those used by dry cleaners. For this reason, and because the empty tub was found inside the building on the property, the Department attempted to determine if Mr. Pierce had purchased the contaminants for use in his operations; it was not able to confirm this fact. The Department also contacted local law enforcement officials to see whether a criminal investigation could be launched. As noted above, however, the drums and tub had been removed by unknown persons while Mr. Pierce still had possession of the property and there was no forensic evidence for law enforcement officials to examine. The result of the investigation was that the Department was unable to determine who deposited the drums on the site or the exact location where the contents were first dumped. Although Respondent contended that the Department could have easily determined who removed the empty drums and tub from the subject property by examining the manifests of the carriers who engage in that type of business, the Department investigator did not attempt to do this since the yellow pages in the telephone directory reflected at least six pages of transporters in this type of business. Further, there is no evidence that a commercial transporter was even involved. For all of these reasons, the Department looked to the current owner of the property, Respondent, as the entity responsible for site rehabilitation since there were, and still are, contaminants leaching into the groundwater and aquifer system. Specifically, as of 2007, or twelve years after the discharge occurred, the groundwater on Respondent's property was still contaminated with tetrachloroethene, trichloroethylene, and cis-1, 2-dichloroethene exceeding the Department's groundwater standards. Also, the same contaminants exceeded the Department's soil cleanup target levels based on ground water criteria. Because rainfall and surface water continue to come into contact with the contaminated soil, and there is no liner or impervious cap in place, the installation is reasonably expected to be a source of water pollution. On September 12, 2001, the Department sent a letter by certified mail to Respondent advising that contamination was present on the property, that there were "possible violations of law for which you may be responsible," and that a Preliminary Contamination Assessment (PCA) must be filed within sixty days from the date of the letter. See Department Exhibit 6. Although a meeting of the parties was held on October 4, 2001, a PCA was never filed. 16. On April 27, 2006, March 12, 2007, and July 3, 2007, the Department issued Warning Letters to Respondent advising that an enforcement action would be initiated unless Respondent provided a SAR within a time certain. See Department Exhibits 7, 8, and 9. (The record is silent as to why no formal activity occurred between October 2001 and April 2006.) Exhibit 8 reflects that on November 21, 2006, "analysis results of sampling of one monitoring well were received by the Department." A meeting was later conducted by the parties on January 16, 2007, at which time Respondent agreed to "draft a suitable letter of [its] intentions with regard to conducting the required assessment and send it to the Department on or before January 31, 2007." There is no record of such a letter being sent. In August 2007, Respondent contracted with Florida Environmental Engineering, Inc., to perform a "limited site assessment report." In March 2008, that firm submitted to the Department a Preliminary Site Assessment Report (PSAR) See Department Exhibit 10. For this service, Respondent paid around $16,000.00. On March 21, 2008, the Department advised Respondent by letter that the PSAR was incomplete and that further information should be provided by April 30, 2008. See Department Exhibit 11. An Addendum to the PSAR was provided on May 5, 2008. See Department Exhibit 12. This report cost Respondent an additional $3,000.00. The PSAR indicated that contaminants (dichloroethene and trichloroethylene) in the water and soil on the property exceeded Department groundwater and soil cleanup target standards and levels. The report concluded, however, that "the discharge to the site is from an offsite source" (west of the property) and that "the property owner is no longer a responsible party." On August 27 and then again on October 22, 2008, the Department issued letters to Respondent advising that "there is not enough data to support the assumption that the discharge is offsite and the contamination is from an offsite source located west of the property." The Department reached this conclusion because, among other reasons, "[t]he contamination does not seem to be delineated towards the northern and southern portions of the site," "[t]here are no horizontal delineation wells to [the] north," the "iso contour maps provided appear to show the vertical delineation of the contamination but not horizontal delineation [of the plume]," "additional monitoring points need to be [added]," and "the onsite monitoring well, MW-2, shows a very high concentration of Perchloroethylene (PCE) at 81,000 ug/L [microgram per liter] and other contaminants, while the MW-1 does not exhibit groundwater contamination to that extent." See Department Exhibits 14 and 15. In plainer language, Respondent's report was deficient in that all contamination sources were not identified; it failed to delineate the horizontal and vertical extent of soil and groundwater contamination; and it failed to recommend a remedial action to clean up the contamination. The two letters advised that the site assessment was incomplete and that additional information described in the letters must be submitted by November 14, 2008. To date, Respondent has failed to submit the required information. According to Mr. Schuberg, to perform a study that would supply the additional information requested by the Department would cost him around $100,000.00, an amount he is unwilling to pay. More than 270 days has expired since a discharge was discovered on Respondent's property, and it has failed to submit a complete SAR, as described in Florida Administrative Code Rule 62-780.600(8). See also Table A, Fla. Admin. Code R. Ch. 62-780, which prescribes the specific time frame (within 270 days after the discharge is discovered) for submitting this report. The Department has incurred expenses in the amount of $1,500.00 while investigating this matter. See Department Exhibit 17. This amount is not disputed. As corrective action, the Department requests that within ninety days of the effective date of this Final Order, Respondent submit a complete SAR which addresses the deficiencies specified in the Department's August 27, 2008, letter. See Department Exhibit 14. To complete the SAR, additional soil and groundwater samples need to be collected to determine the vertical and horizontal extent of contamination, all source areas must be identified, and a remedial action must be developed to abate the contamination. Finally, the contaminated soil must be removed from the property so that it will no longer discharge into the groundwater. The Notice of Violation requests that upon approval of the SAR, Respondent "shall commence and complete in a timely fashion all further tasks" required by Florida Administrative Code Rule Chapter 62-780. These corrective actions are reasonable and are hereby approved. In calculating the penalty, Respondent has assessed a $500.00 administrative penalty for Respondent maintaining a stationary installation that is reasonably expected to be a source of water pollution without a permit. This is based upon a violation of Section 403.121(5), Florida Statutes, which makes it unlawful to not comply with a regulatory statute's requirement. Under Section 403.121(6), Florida Statutes, the Department has also assessed a $500.00 per day penalty against Respondent for failing to file a SAR for nineteen days, for a total of $9,500.00. When added to the $500.00 previously assessed, the total administrative penalty is $10,000.00, which is the maximum allowed in this type of proceeding. See § 403.121(2)(a), Fla. Stat. Throughout this process, Mr. Schuberg has contended that the responsibility for cleanup lies with the person or entity actually responsible for placing the drums and tub on the property in 1995. He says that the evidence clearly shows that Family Dry Cleaners is the responsible party. However, the Department and local authorities were never able to confirm who actually dumped the waste on the subject property. Although Mr. Schuberg says it will take "[i]n the hundreds of thousands of dollars" to clean up the site, the evidence shows that when he purchased the mortgage in 1998 and assumed ownership in 1999, he knew the property was contaminated. Mr. Schuberg further stated that because his consultant could never get "answers" from the Department, the consultant was instructed to stop work. However, Mr. Schuberg never contacted the Department to get clarification about what was required. At hearing, Mr. Schuberg also offered a lay opinion that his consultant's report filed in March 2008 proves that in 1995 the contents of the drums and tub were dumped on an offsite asphalt road adjacent to the property, surface water runoff then carried the chemical solvents onto his property, and the empty drums and tub were left in the parking lot. The Department's expert did not agree with this supposition, and there is no expert testimony to confirm the accuracy of this theory. Respondent has also contended that the property should be cleaned up with state funds. As pointed out by a Department witness, however, one problem is that the property does not meet the definition of a dry cleaner and thus cannot qualify for funds under that program. Then, too, a state-funded cleanup is a last resort which is used only after the Department has exhausted all enforcement remedies. Also, in this era of tight budgets, the Department has a finite amount of funds to use for this purpose, and is limited to cleaning up only a few sites per year. Finally, the responsible party must first acknowledge by affidavit that it lacks the necessary resources to clean up the property before the Department "may" seek cleanup funds. Respondent has not yet filed such an affidavit or admitted liability. In terms of mitigating evidence, Mr. Schuberg conceded that he has not done "a whole lot" to address the contamination problem since acquiring the property in 1999. In 2008, he did expend around $20,000.00 in having a PSAR and Addendum prepared for the Department. In all other respects, he steadfastly refuses to spend any more money on assessments or take responsibility for the cleanup since he believes that Family Dry Cleaners is the entity responsible for site rehabilitation.
Findings Of Fact At all times pertinent to the charges, respondents have been licensed real estate salesmen and brokers. Respondent Ed Wasdin holds real estate salesman's license number 0341534. Respondent Betty L. Green 2/ held real estate salesman's license number 0341467 at the time of the alleged misconduct. She now is a licensed broker. Respondent Ester L. Turner holds broker's license number 0090375. At the time of the alleged misconduct, she was the qualifying broker for Ed Wasdin Realty, Inc., a registered corporate real estate broker. (Pretrial Stipulation; Testimony of Vann.) During the time in question, Mr. Wasdin also owned and operated Ed Wasdin and Son, Inc., a licensed construction company, where Ms. Green served as his full-time secretary and office manager. She worked as a real estate salesman for Ed Wasdin Realty, Inc., on a part-time basis. (Testimony of Vann; Pretrial Stipulation.) II. On November 11, 1980, Hank V. Mannheimer and his wife, Barbara, saw an Ed Wasdin Realty, Inc., "For Sale" sign in front of a house located at 721 West Crossway Road, Tallahassee, Florida. They called the telephone number listed on the "For Sale" sign and made an appointment for respondent Wasdin to show them the house. (Testimony of H. Mannheimer, B. Mannheimer.) Later that day, Mr. Wasdin took the Mannheimers on a tour of the house. They then returned to Mr. Wasdin's office where respondent Green, as his secretary, prepared a standard real estate contract on a form published by the Florida Association of Realtors. The Mannheimers signed the contract as purchasers, and Ed Wasdin signed on behalf of Ed Wasdin and Son, Inc., the seller. The Mannheimers also delivered a $1,000 earnest money deposit check made payable to the seller, Ed Wasdin and Son, Inc. (Testimony of H. Mannheimer, B. Mannheimer; P-10, R-5.) III. The real estate sales contract contained a "Termite Clause" granting the buyers the right to have the property inspected "to determine whether there is any active termite or wood destroying organisms in any improvement on said property, or any damage from prior termite or wood destroying organism to said improvements". (P-10.) During the morning of January 15, 1981, respondent Green, on behalf of the seller, Ed Wasdin and Son, Inc., telephoned Helms Exterminating, Inc., and ordered a termite inspection of the house. David Baker, a termite inspection, was sent to the house to conduct the inspection that same morning. (Testimony of Vann, Baker.) On inspecting the house, Mr. Baker found termite infestation and termite damage to the left front corner of the house. He then telephoned Ms. Green and told her that he had seen evidence of termites. He did not, however, tell her of any termite damage. She told him that she needed a "clear" termite report by that afternoon (since closing was scheduled for that afternoon or the next day) and authorized him to treat the house for termites. She did not speak to respondent Wasdin before authorizing the treatment. (Testimony of Vann.) Mr. Baker testified that he told Ms. Green of termite damage to the house and that she promised to repair the damage in order to get him to issue a "clear" termite report that day. Ms. Green denied that Mr. Baker told of the damage and denied that she promised to make repairs. The testimony of Ms. Green is more credible and worthy of belief than that of Mr. Baker, whose previous statements about this incident have been incomplete, 3/ untrue or contradictory. In his termite inspection report of January 15, 1981, Mr. Baker indicated that no active termite infestation or visible termite damage was observed--the first statement was, at best, incomplete, the second was false. After discovering the termite damage, Mrs. Mannheimer questioned him twice. The first time, he told her that he had only found ter-mites on January 15, 1981, and mentioned nothing of termite damage. Later, when questioned again, he stated that he had also found termite damage. Further, Ms. Green was not authorized to promise structural repairs to a residence, and it is unlikely that she would have made such a promise when she did not know the extent of the damage and had no way of knowing the cost of repair. The conflict in testimony is therefore resolved in Ms. Green's favor. (Testimony of Vann, Baker.) On January 15, 1981 after treating the residence for termites, Mr. Baker issued a termite inspection report indicating that he had observed no active termite infestation or visible damage. The report, on its face, indicated that it was to be mailed to Ed Wasdin Realty at 4432 Kensington Road, Tallahassee, Florida. The Mannheimers did not see the report until after the closing. (Testimony of Baker, Green; P-7.) IV. In negotiating for and purchasing the house from Ed Wasdin and Son, Inc., the Mannheimers believed, and had reasonable grounds to believe, that they were dealing with realtors associated with Ed Wasdin Realty, Inc. The house was advertised by an Ed Wasdin Realty, Inc., "For Sale" sign; they called the number listed on the sign, and Mr. Wasdin showed them the property; a contract identified with the Florida Association of Realtors was executed which contained an Employment of [Real Estate] Agent clause; 4/ both Ms. Green and Mr. Wasdin worked for both companies; and the offices of the Wasdin realty and construction companies were located in the same model home. Although the offices in the model home were separately marked as construction or realty company offices, the conference room (where the closing took place) was not marked as belonging to either. In actuality, the sale of the residence was not a transaction on the account of Ed Wasdin Realty, Inc. The house was not listed with the realty company; a commission was not promised or paid to the realty company; and the deposit was not placed in the realty company escrow account. (Testimony of Vann, H. Mannheimer, B. Mannheimer.) No evidence was presented to show that respondent Wasdin knew, or should have known, that the house in question had a termite infestation or termite damage. There is not a sufficient factual basis to impute such knowledge to him. Neither was any evidence presented to show that respondent Turner, qualifying broker for Ed Wasdin Realty, Inc., knew, or should have known, about the real estate transaction in question, including the termite infestation and damage. The evidence is insufficient to support a factual inference that Ms. Turner was negligent or derelict in her duty to supervise the realty company's operations. Although, in this case, a realty company's sign was used to advertise a property which was not listed with the company, the evidence does not show that this had ever happened before, that this was anything but an isolated mistake. The evidence is insufficient to support a finding that either Mr. Wasdin or Ms. Green saw the termite inspection report prior to closing, or affirmatively represented to the Mannheimers that no termites had been discovered during the January 15, 1981, termite inspection. 5/
Recommendation Based on the foregoing, it is RECOMMENDED: That the administrative complaint against the respondents be dismissed. DONE and RECOMMENDED this 15th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1982.
Findings Of Fact Respondent, George Sigountos, is a licensed real estate broker-salesman having been issued license number 0080704 with a principal place of business at 4338 First Street North, St. Petersburg, Florida. Respondent has been licensed in the State of Florida for approximately ten (10) years, having been a broker- salesman in New York for approximately twenty (20) years before coming to Florida. The Respondent Sigountos was at all material times employed by Century 21 Realty, 4922-38th Avenue North, St. Petersburg, Florida. On or before March, 1979, Mr. and Mrs. John Opal listed for sale by the Respondent a house on Benson Avenue which they then occupied. Subsequently, the Opals located another house which they desired to purchase at 5871-78th Avenue North, Pinellas Park, Florida. The Opals obtained financing to purchase the Pinellas Park home although they had not yet sold their Benson Avenue home and requested the Respondent's assistance to sell their original home. On or about March 4, 1979, the Respondent, through his broker, submitted a contract to the seller, Mr. Boyce, from the Opals, who contracted for the purchase of the Boyce home with a closing date on or before April 10, 1979. The bank where financing was arranged informed the involved title company that interest rates were scheduled to increase as of March 19, 1979. As a result of this information, the title company and parties attempted to arrange to close on March 16, 1979. The Opals attended this closing while Mr. Boyce did not. The Opals, however, executed all documents necessary on their part for the closing on March 16, 1979. Included was an agreement requiring the sellers to replace three (3) boards on the back porch because of previous termite damage. This was included as a result of a prior conversation between Mr. Opal and Mr. Boyce concerning termite damage. Mr. Sigountos did not prepare this document and it is unclear how it came into existence. No termite inspection report was filed until March 19, 1979. The Boyce home was not inspected for termites until March 19, 1979, at which time the exterminator, Hobelman Exterminating Service, Inc., left his inspection report with Mrs. Boyce which stated, in part:
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Petitioner dismissing the complaint filed April 7, 1981 against the Respondent George Sigountos. DONE and ORDERED this 1st day of October, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1981. COPIES FURNISHED: Grover G. Freeman, Esquire Suite 410 4600 West Cypress Avenue Tampa, Florida 33607 Christopher C. Ferguson 5959 Central Avenue St. Petersburg, Florida 33710 C. B. Stafford, Executive Director Florida Real Estate Commision 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Respondent, a certified general contractor, violated the construction industry licensing law, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project; and if the Respondent is guilty of such violations, the appropriate disciplinary penalty which should be imposed by the Construction Industry Licensing Board.
Recommendation That Respondent's certified general contractor's license No. CGC005174 be suspended until such time as Respondent furnishes the Board satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515 for monies expended by them to pay for lumber, electric and plumbing charges arising out of their construction contract.
The Issue This is a license discipline case in which the Department of Health and Rehabilitative Services seeks to impose an administrative fine in the amount of $350.00 on the basis of allegations that the Respondent, failed to report visible and accessible evidence of dry wood termite fecal pellets.
Findings Of Fact At all times material to this case, the Respondent, James M. Dodds has been licensed to conduct residential termite inspections. On June 12, 1990, he conducted a termite inspection at the residence of a Mrs. Mitchell, located at 7420 W. 15 Court, Hialeah, Florida. During the course of that inspection, Dodds did not inspect the attic of the residence. The reason he did not inspect the attic was because the access to the attic (which was through a crawlspace in the ceiling of a small bedroom closet) was blocked by a large number of boxes stacked in the closet. During the course of the inspection Dodds told the owner of the house that unless she arranged to move all the boxes out of the way, he would have to indicate on his report that the attic was not inspected. The owner did not arrange to get the boxes moved and Dodds did not inspect the attic. At the conclusion of his inspection of the property described above, Dodds filled out an inspection report form and left a copy of the inspection report with the property owner. Dodds placed some check marks in some preprinted boxes on the back of the inspection report form. Those check marks included one that indicated "attic not available for inspection." Shortly thereafter, the house was sold to a new owner who, shortly after moving in, discovered what appeared to him to be evidence of possible termite infestation. Subsequent inspections of the premises by another pest control company and by an inspector of the Department of Health and Rehabilitative Services revealed the presence of fecal pellets left behind by dry wood termites. The termite fecal pellets were discovered in the attic near the crawl space opening. There was no other evidence of the presence of termites. No live termites were seen on either of the follow-up inspections.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services issue a final order in this case dismissing all charges against the Respondent, James M. Dodds. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 11th day of March, 1991. MICHAEL M. PARRISH, 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 11th day of March, 1991. COPIES FURNISHED: Martha F. Barrera, Esquire, Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Mr. James M. Dodds Creative Construction Services, Inc. P. O. Box 38-1996, Miami, Florida 33138 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether Respondent's intended rejection of all responses to its solicitation of "qualifications" from entities interested in contracting with Respondent to perform construction management at risk services in connection with a project at Fort Lauderdale High School is illegal, arbitrary, and/or dishonest, as alleged by Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a district school board responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Fort Lauderdale High School) and for otherwise providing public instruction to school-aged children in the county. As authorized by Florida Administrative Code Rule 6A- 1.012, Respondent has "establish[ed] purchasing rules" (denominated as "policies"). Respondent's Policy 3320 contains Respondent's "Purchasing Policies." Part III of Respondent's Policy 3320 prescribes "Purchasing Policies" for Respondent's Facilities and Construction Management Division, and it provides, in pertinent part, as follows: All additions, modifications, and alterations to School Board properties shall conform with the State Requirement for Educational Facilities (SREF), Florida Building Code (FBC) and the laws of the State of Florida. School Board administrators shall obtain assistance in preparing bid specifications and applicable building permit(s) from the Facilities and Construction Management division for these items. Part VIII of Respondent's Policy 3320 addresses the subject of "protests arising from the competitive solicitation process" and incorporates the protest procedures found in Section 120.57(3), Florida Statutes. Respondent's Policy 7003 is entitled, "Pre- Qualification of Contractors and Selection of Architects, Engineers, Design Builders, Construction Managers, and Total Program Managers Pursuant to the Consultants Competitive Negotiation Act." It provides, in pertinent part, as follows: The School Board shall pre-qualify bidders for construction contracts, and, publicly announce, in a uniform and consistent manner, each occasion when construction and/or professional services are required to be purchased in compliance with governing statutes and regulations. The Superintendent shall establish procedures for the pre-qualification of contractors and selection of architects, engineers, design- builders, construction managers and total program managers consistent with this policy, applicable statutes and State Requirements for Educational Facilities (SREF). Rules The School Board authorizes the Superintendent to: Receive applications for Contractor Pre- Qualification on the attached application form in compliance with FS 1013.46 and SREF 4.1(8), as amended. . . . * * * 4. Designate an evaluation committee of eleven (11) voting members for the purpose of Pre-Qualification of contractors and selection of architects, engineers, design builders, construction managers and total program managers. * * * The committee shall make recommendations to the Superintendent regarding the pre- qualification of contractors. The Superintendent shall make recommendations to the Board: Along with a report from the committee containing findings of fact indicating the proposers' compliance with the procurement requirements and scoring criteria and the Board shall have the final approval of such recommendations. The Contractor Pre-Qualification Application Form "attached" to Policy 7003 contains the following description of the contractor pre-qualification process: The School Board ("Board") through the Superintendent or his/her designee, shall pre-qualify all "contractors" for construction contracts, and any other contracts that require a certificate issued pursuant to Chapter 489, Florida Statutes, including, but not limited to, all bidders, construction managers, design-builders, job- order contractors, term contractors, and all other types of contractors on an annual basis or for a specific project according to the rules set forth in the State Requirements for Educational Facilities (SREF) Section 4.1(8). Contractors shall be pre-qualified on the basis of the criteria set forth in SREF and included in the foregoing application form. In addition to the foregoing criteria the applicant shall provide the Dun and Bradstreet report indicated in the application. The evaluation committee shall be as set forth in Board Policy 7003. The applicant shall complete the form in its entirety and submit all required documents by the deadline set forth in the public announcement. Separate applications shall be submitted for each desired contracting category. The School Board of Broward County shall receive and either approve or reject each application for prequalification within sixty (60) days after receipt of application in its entirety and all required documents. Approval shall be based on the criteria and procedures set forth in SREF. The Board shall issue to all pre-qualified contractors a certificate valid for one (1) year from the date of approval or for the specific project(s). That certificate shall include the following: A statement indicating that the contractor may bid, propose, or otherwise be considered, on the specific project(s) or for this specific time period. A statement establishing the total dollar value of the work the contractor will be permitted to have under contract with the Board at any one time. The maximum value shall not exceed the contractor's bonding capacity or ten (10) times the net quick assets. A statement establishing the maximum dollar value of each individual project the contractor will be permitted to have under contract with the Board at any one time. The maximum value of each project may be up to twice the value of the largest similar project previously completed but shall not exceed the Contractor's bonding capacity or ten (10) times the net quick assets. A statement establishing the type of work the contractor will be permitted to provide. The expiration date of the certificate. It shall be the responsibility of the contractor to renew annually certificates not for a specific project. Financial statements or written verification of bonding capacity on file with the Board shall be updated annually. Failure to submit a new statement or verification of bonding capacity within thirty (30) days written notice by the Board shall automatically revoke a pre-qualification certificate. 1. Pre-qualified contractors may request a revision of their pre-qualification status at any time they believe the dollar volume of work under contract or the size or complexity of the projects should be increased if experience, staff size, staff qualifications, and other pertinent data justify the action. These procedures are in accordance with requirements set forth in Section 4.1 of the State Requirements for Educational Facilities. As the parties stipulated in Admitted Fact 6, "[o]n May 20, 2008, [Respondent] approved the Request for Qualifications No. 2008-030-FC (RFQ) entitled 'Construction Management at Risk Services for Districts 2, 3 and 4 Projects (Cooper City High School - Project No. 1931-99-02; Fort Lauderdale High School – Project No. 0951-27-01; Margate Elementary School – Project No. 1161-26-01; and Northeast High School – Project No. 1241-27-01),' and authorized the public announcement of the RFQ." "[In] [t]he summary explanation and background [section of] the Agenda Request Form [for this agenda item, it was] stated that the 'Facilities and Construction Management staff recommend[ed] the procurement of construction services utilizing Construction Management at Risk delivery method due to the complexity, scope and scale of the projects.'" This "delivery method" is to be distinguished from the "hard bid" or "design/bid/build" method of procurement, where a contractor is hired only after "the construction documents are completed." Under the "Construction Management at Risk delivery method," contrastingly, the construction manager typically assists in the development and "complet[ion]" of the "construction documents," offering advice and recommendations to maximize quality and cost efficiency. As a result, it is "not uncommon" for there to be post-solicitation changes in a project's scope and budget when this "delivery method" is employed. As the parties stipulated in Admitted Fact 7, "[a]t the time of [Respondent's] approval of the RFQ, the portion of the RF[Q] pertaining to [the FHS Project] had an advertised Proposed Construction Budget of $29,150,340 and a project scope which was described [in RFQ] as follows: 'Concurrent replacement in two phases to include: Phase I – Construct a 3- story Administration Classroom Building of 68,940 GSF to include Administration, 3 general classroom[s], 5 resource rooms, 4 Science Labs and related spaces, a 4-classroom ESE Suite, 1 Business Technology Lab, 1 Family and Consumer Science (ProStart) Lab, 1 Health Occupations Lab, 1 Pre-Law Public Service Education Lab, Custodial spaces, Textbook Storage and Student, Staff and Public Restrooms. Demolish Buildings 1, 2, 3, 4, 11, 12, 13 and 14.'" Phase II of the project was, at the time, described in the RFQ as follows: "Construct Parent drop off & pick up area and Staff/Visitor Parking; Construct Regional Athletic Facility; Renovate Building 8 into Science Labs; Demolish existing tennis courts & replace with 6 tennis courts; Demolish Swimming Pool; Construct basketball courts; Resurface Student Parking." These descriptions represented the "initial concept" of the FHS Project (the design of the project having been then only in the "conceptual stage" of development). Respondent wanted to have the benefit of the input and advice of a construction manager (working together with the architect selected for the project) in developing the project's design beyond the "conceptual stage." As the parties stipulated in Admitted Facts 12 through 19, "[b]etween the initial public release of the RFQ and the submission of proposed qualifications, [Respondent] issued seven (7) addenda revising the RFQ's terms and conditions," with "Addendum No. 4 chang[ing] the scope of the [FHS Project] component of the RFQ as follows": Delete the scope in Phase I to demolish Building #4. Delete the scope in Phase II to construct basketball courts and to resurface student parking. Revise the words "replace with 6 tennis courts" to be the words "construct five (5) tennis courts." Clarify phasing: In Phase I, demolish the existing track and athletic field and relocate existing baseball field. Clarify scope: In Phase II, for the staff parking construct a 3-story parking structure including required access road work. Clarify scope: Phase II includes renovation of existing courtyard to provide ADA access to existing gymnasium and auditorium. (Emphasis, by bolding, supplied in original). Addendum No. 6 "[r]evised the [RFQ's] Submittal Due Date to read 'No later than 2:00 p.m. on September 3, 2008.'" As the parties stipulated in Admitted Fact 20,"[a]fter [the] issuance of Addendum No. 7 to the RFQ, the scope of the [FHS Project] component of the RFQ was described as follows [with strike-throughs and underlining indicating, respectively, post-issuance deletions and additions]: Concurrent replacement in two phases to include: Phase I – Construct a 3-story Administration Classroom Building of 68,940 GSF to include Administration, 3 general classroom[s], 5 resource rooms, 4 Science Labs and related spaces, a 4-classroom ESE Suite, 1 Business Technology Lab, 1 Family and Consumer Science (ProStart) Lab, 1 Health Occupations Lab, [1 Pre-Law Public Service Education Lab], Custodial spaces, Textbook Storage and Student, Staff and Public Restrooms. Demolish the existing track and athletic field and relocate existing baseball field. Demolish Buildings 1, 2, 3, 4, 11, 12, 13 and 14. Phase II – Construct Parent drop off & pick up area and a 3-story parking structure including required road access work for Staff Parking and /Visitor Parking[.] Construct Regional Athletic Facility[.] Renovate building 8 into Science Labs[.] Demolish existing tennis courts & replace with 6 tennis courts construct five (5) tennis courts. Demolish Swimming Pool. Renovate existing courtyard to provide ADA access to existing gymnasium and auditorium. Construct basketball courts. Resurface Student Parking." As the parties stipulated in Admitted Facts 10 and 11, on August 26, 2008, the date that Respondent issued its final addendum to the RFQ (Addendum No. 7), it also issued a Revised Public Announcement publicizing the issuance of the RFQ (as revised by the seven addenda). The Revised Public Announcement read, in pertinent part, as follows: In order to supplement the expertise of the Facilities and Construction Management Department, the Superintendent of Schools, pursuant to Florida Statutes, announces that The School Board of Broward County, Florida, is in need of Construction Management Services, related to new construction and renovations of educational facilities. Pursuant to this request for qualifications, The Board will consider contracts with one of more proposers to provide these services. Services under this contract include, but are not limited to the following items and shall be in accordance with SREF [State Requirements for Educational Facilities] 1999 Chapter 4: Bid and award activities including managing bidder listing, addendum, bidding, proposals, schedule of values, contracts, guaranteed maximum price, value engineering, and bonds. Construction activities including managing meetings, contract administration, monitoring procedures, contract records, inspections, non-conformances, owner- supplied equipment, testing, project accounting, and construction services. Warranty activities including managing claims and periodic inspections. Provide other basic services as required. Refer to the Request for Qualifications for more detailed project scopes. * * * RFQ No. 2008-30-FC Project Nos. 0951 27 01/P000687 Fort Lauderdale High School (proposed construction budget $29,150,340): Phase replacement in 2 phases to include: Phase I - Demolish selected buildings, tennis courts, swimming pool, track and athletic field. Construct a 3-story Administration Classroom Buildings[2] of 68,949 GSF; parent drop off/pick-up area and visitor parking; 5 tennis courts. Relocate existing baseball field. Phase II - Demolish selected building. Construct a 3-story parking structure including required access road work; Regional Athletic Facility. Renovate existing courtyard for ADA access to Gym and Auditorium. Renovate Building 8 into Science Labs. * * * Award: Project will be awarded by Facility. Proposed Construction Budget: Includes all costs inclusive of the Construction Manager's fees, Cost of Work, and any other costs related to construction. Minimum Selection Criteria: Will include the following as a minimum, (refer to document RFQ, Article X Submittal Requirements for expanded list of selection criteria): The company's history, structure, personnel, licenses, and experience. Related projects similar in scope or amount completed by the company, including name of client or its representative. Financial information such as balance sheet and statement of operations and bonding capacity. Project management, scheduling and cost control systems the company uses for similar projects. Proposed minority business involvement in the project. . . . Cost control, value engineering techniques and constructability reviews. Description of litigation, major disputes, contract defaults and liens in the last five (5) years. Interview. Confirmation of references. Consideration of the volume of work previously awarded to each firm, with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most qualified firms. * * * The completed RFQ response must be delivered . . . . NO LATER THAN 2:00 PM SEPTEMBER 3, 2008 * * * Qualifications Selection Evaluation Committee (QSEC): After submission, proposers will be evaluated by the Qualification Selection Evaluation Committee (QSEC) based upon the above minimum criteria. The QSEC will select no less than three (3) proposers, ranked in order of tabulated score. The QSEC will recommend the finalist(s) for award of contracts to Construction Managers to the Superintendent. The Superintendent shall either recommend award of contract(s) to the finalist(s) selected by the QSEC or recommend rejection of all proposals to the Board. After the Board approves the recommendations of the QSEC the Board will authorize the Superintendent, or designee, to negotiate a contract for services for fees to provide direct management of the Construction Management at Risk Contract. Recommendations by the Qualification Selection Evaluation Committee do not guarantee a contract will be awarded by the Board. Award of a contract does not guarantee that work will be issued. Fees will be negotiated in accordance with Board Policy 7003 and Section 287.055, F.S. Article I of the RFQ (as revised) listed "General Requirements" that "proposers [had to] meet" "[i]n order to be considered." As the parties stipulated in Admitted Fact 21, Article I.D. of the RFQ (as revised) provided, in pertinent part, as follows: All proposers must be prequalified according to 1013.46 F.S., SREF 4.1(8), and Board Policy 7003 at the time of submittal due date to this RFQ. Article I.H. of the RFQ (as revised) provided as follows: The School Board of Broward County, Florida reserves the right to reject any or all responses, to waive technicalities, or to accept the proposal that, in its sole judgment, best serves the interest of The School Board of Broward County, Florida. Article II of the RFQ (as revised) described the "Selection Process." As the parties stipulated in Admitted Fact 22, Article of the RFQ (as revised) "was entitled 'Proposal Review by Staff' and stated as follows": Facilities and Construction Management Division staff will conduct a review of the proposer's submittal to determine whether the proposer meets the terms of this RFQ, requirements of the Florida Statutes, State Requirements for Educational Facilities regulations, Florida Building Code, and any other code, statute, or standard applicable at the time of response. Facilities and Construction Management Staff will provide information to the QSEC Members showing payments made by the district to the proposing firms over the past three (3) years. Non-compliant proposals will be recommended to the committee for rejection. As the parties stipulated in Admitted Fact 23, Article of the RFQ (as revised) "was entitled 'Shortlist Selection' and stated as follows": The QSEC Members will assign points to each proposer, for each facility, based upon the Selection Criteria below and attached Selection Criteria Score Sheet in the shortlist evaluation process. Each QSEC Member shall assign points for each proposer according to the selection criteria and rank them according to their scores. The proposer receiving the most points by a QSEC Member will be considered the first choice of that QSEC Member. The firm that receives the most first choice votes from the committee will be the top-ranked proposer. The second-ranked proposer will be the proposer that receives the most points, other than the proposer who was already selected as the top-ranked, and so on. In the event of a tie a voice vote will be taken until the tie is broken. If the voice vote is not unanimous, then a roll-call vote will be taken. The selection process will establish a "shortlist" for each facility/project of not less than three (3) proposers and no more than five (5) proposers submitting proposals. Shortlist selection will be done by each facility. Article II.E. of the RFQ (as revised) called for "[p]resentations" to be made to the QSEC by the shortlisted proposers. As the parties stipulated in Admitted Fact 24, Article II.G. of the RFQ (as revised) "was entitled 'Final Selection' and stated as follows": The QSEC will interview and rank the shortlisted firms. The QSEC will assign points to each proposer, for each facility, utilizing the Selection Criteria and point schedule included with the Selection Criteria Score Sheet to finalize the selection. Note, M/WBE staff will provide scores for M/WBE categories. However, such scores are recommendations by M/WBE staff and may be adjusted by individual QSEC Members. Each QSEC Member shall assign points for each proposer according to the selection criteria and rank them according to their scores for each project/facility. The proposer receiving the most points by a QSEC Member will be considered the first choice of that QSEC Member. The proposer that receives the most first choice votes from the committee will be the top-ranked proposer. The second-ranked proposer, will be the proposer that receives the most points, other than the proposer who was selected as the top-ranked proposer, and so on. In the event of a tie a voice vote will be taken until the tie is broken. If the voice vote is not unanimous, then a roll- call vote will be taken. The QSEC will recommend the finalist(s) for award of contract to Construction Manager to the Superintendent. The Superintendent shall either recommend award of contract(s) to the finalist(s) selected by the QSEC or recommend rejection of all proposals to the Board. After the Board approves the recommendations of the QSEC the Board will authorize the Superintendent, or designee, to negotiate a contract with the top-ranked firm according to Section 287.055, F.S. The Board shall have final approval of such recommendations. Final selection will be done by each facility. Article II.H. of the RFQ (as revised) contained the "Minimum Selection Criteria." This provision read as follows: Minimum Selection Criteria: Will include the following as a minimum, (refer to this document Article XI Submittal Requirements for expanded list of selection criteria): The company's history, structure, personnel, licenses, and experience. Related projects similar in scope or amount completed by the company, including name of client or its representative. Financial information such as balance sheet and statement of operations and bonding capacity. Project management, scheduling and cost control systems the company uses for similar projects. Proposed minority business involvement in the project (refer to this document Article I, J for requirements). Cost control, value engineering techniques and constructability reviews. Description of litigation, major disputes, contract defaults and liens in the last five (5) years. Interview. Confirmation of references. Consideration of the volume of work previously awarded to each firm, with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of section of the most qualified firms. As the parties stipulated in Admitted Fact 25, Article III of the RFQ (as revised) "[was] entitled 'Competitive Negotiations' and state[d] as follows": After the QSEC ranks the firms, recommends the finalist(s) to the Superintendent, and the Superintendent recommends the finalist(s) to the Board[,] [t]he Superintendent, or designee will negotiate a contract for services for fees to provide direct management cost of the CM and Guaranteed Maximum Price (GMP). The CM contract shall maintain an "open book" project accounting process, with any savings returned to the Board. Should the negotiations not result in a contract with the finalist at a price determined by both parties to be customary, fair, competitive, and reasonable, negotiations with that firm shall be formally terminated. The Superintendent, or designee, shall undertake negotiation with the second most qualified firm and thereafter, if necessary, with the third firm. Should the Board be unable to negotiate a satisfactory contract with any of the selected firms, additional firms will be selected in accordance with the above- described procedure. Negotiation should continue in accordance with Section 287.055, F.S., or until the Board determines not to proceed and to re-advertise and repeat the process. Article IV of the RFQ (as revised) addressed the "Scope of Services." It simply provided as follows: "Refer to attached Agreement Between Owner and Construction Manager for requirements." Article 3 of the "attached Agreement Between Owner and Construction Manager" (Sample Contract) enumerated the "Construction Manager's Services." Those services to be performed by the hired construction manager during the "Pre-Design Phase" were described in Article 3.2 of the Sample Contract as follows: The Construction Manager shall review project requirements, educational specifications, on and off-site development, survey requirements, preliminary budget, and make value engineering and constructability recommendations for revisions to the Owner and Project Consultant in the form of a written report prior to the final payment for this phase. The Construction Manager shall, subject to Owner's approval and compliance with existing Owner completion schedule, establish a preliminary master project schedule identifying all phases, Critical Path elements, responsibilities of the Owner, Project Consultant, outside agencies, third parties and any other impacts which would affect project schedule and progress and update them monthly throughout the duration of the contract. When the project includes renovation or expansion of an existing Facility, the Construction Manager will assist the Construction Team in preparing an analysis package outlining the condition of the existing Facility, existing structure, existing finishes, and existing equipment, code deficiencies, energy use, and life expectancy of other building systems by providing constructability, value engineering, and cost estimates recommendations. The package should contain the Construction Manager's recommendations, cost estimates and preliminary schedules. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager shall prepare detailed cost estimates and recommendations to Owner and Project Consultant at S.D. (Schematic Design), D.D. (Design Development), C.D. (50% and 100% Construction Documents) phases of the project. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for each phase. The Construction Manager shall provide project delivery options for the design, bid, and bid packaging of the project for efficient scheduling, cost control and financial resource management. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager shall utilize information and reporting systems to provide the Owner with monthly reports containing accurate and current cost controls, work status, including but not limited to Work narrative, Work completed/anticipated, short term and long term schedules, estimated expenditures, and project accounting systems of the project at all times. Such information shall be provided to the Owner and Project Consultant in the form of a written report, prior to final payment for this phase. The Construction Manager shall prepare a report with the Project Team's participation which shall describe, as a minimum, the Work plan, job responsibilities, and written procedures for reports, meetings, inspections, changes to the project, building systems, and delivery analysis and other relevant matters. Such information shall be provided to the Owner and Project Consultant prior to final payment for this phase. The Construction Manager shall provide market analysis and motivation for subcontractor interest and recommendations for minority business participation. This shall include analysis of the Construction Manager's historical data for subcontracting, communication with contractor and trade organizations requesting participation, review of the Owner's M/WBE data, advertising, outreach programs, mailings to all prospective bidders identified by these actions, and reporting of all of the for[e]going to the Owner. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager's personnel to be assigned during this phase and their duties and responsibilities to this project and the duration of their assignments are shown on Exhibit D to the General Conditions. All required reports and documentation shall be submitted and approved by the Owner as pre-requisite to progress payments to the Construction Manager by the Owner during this phase. Those services to be performed by the hired construction manager during the "Design Phase" were described in Article 3.3 of the Sample Contract as follows: The Construction Manager will be required to attend all project related meetings and include a summary of the meeting of its monthly report to the Owner as specified in Document 01310. The Construction Manager will periodically review to the best of their abilities all Contract documents for constructability and compliance with applicable laws, rules, codes, design standards, and ordinances. Such information shall be provided to the Owner and Project Consultant in the form of a written report in the format as noted herein prior to final payment for this phase (Refer to exhibits G and H). The Construction Manager will be required to work with and coordinate [its] activities with any additional consultants, or testing labs and others that Owner provides for the project and report all findings as specified in Document 01310. The Construction Manager shall review all Contract documents for the new and existing buildings and/or building sites and provide value engineering recommendations to minimize the Owner's capital outlay and maximize the Owner's operational resources. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. All such recommendations shall be acknowledged and incorporated into the construction documents by the Project Consultant unless otherwise authorized by the Owner in writing. The Construction Manager will review construction documents and the new and existing buildings conditions and/or building site to reduce to the best of [its] abilities conflicts, errors and omissions and shall coordinate with the Project Consultant in order to eliminate change orders due to errors, omissions and unforeseen conditions. The Construction Manager shall periodically update the master project schedule and make recommendations for recovery of lost time. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager will coordinate with the Project Consultant and provide to the Project Construction Team permitting applications and requirements for the projects. The Construction Manager will periodically update cost estimates and make recommendations to keep the project within the FLCC. AT COMPLETION OF THE CONSTRUCTION MANAGER'S REVIEW OF THE PLANS AND SPECIFICATIONS, EXCEPT ONLY AS TO SPECIFIC MATTERS AS MAY BE IDENTIFIED BY APPROPRIATE WRITTEN COMMENTS PURSUANT TO THIS SECTION, CONSTRUCTION MANAGER SHALL WARRANT, WITHOUT ASSUMING THE PROJECT CONSULTANT'S RESPONSIBILITES, THAT THE PLANS AND SPECIFICATIONS ARE CONSISTENT, PRACTICAL, FEASIBLE AND CONSTRUCTIBLE. CONSTRUCTION MANAGER SHALL WARRANT THAT THE WORK DESCRIBED IN THE PLANS AND SPECIFICATIONS FOR THE VARIOUS BIDDING PACKAGES IS CONSTRUCTIBLE WITHIN THE SCHEDULED CONSTRUCTION TIME. DISCLAIMER OF WARRANTY: THE OWNER DISCLAIMS ANY WARRANTY THAT THE PLANS AND SPECIFICATIONS FOR THE PROJECT ARE ACCURATE, PRACTICAL, CONSISTENT OR CONSTRUCTIBLE OR WITHOUT DEFECT. .10. The Owner may select certain projects for expediting using fast-track construction. When this option is exercised, in writing, by SBBC, it shall be implemented in accordance with the following: A. Design/Construction documents as noted herein shall be submitted by the Consultant for review and approval by SBBC (including Building Code review and Building permit issuance for 100% completion documents), the Construction Manager and others, as applicable, having jurisdiction: Foundation/Structural/LCCA/Site and Off- Site Package-100% Documents A separate 50% completion progress set (for information only) of Building Finish Package drawings shall also be submitted which shall show all of the major characteristics of the project utilities and service, detailed site and floor plans, elevations, section, schedules, etc. Construction may begin after approvals and building permit is obtained for above package. Building Finish Package-100% Documents As mutually agreed by the parties in writing. .11 Guaranteed Maximum Price (GMP): Upon completion of the design phase [construction documents 100% complete] and prior to the bidding and award phase, the Construction Manager shall present to the Owner the GMP for the Owner[']s review and approval in accordance with Article 6 of this Agreement.[3] Those services to be performed by the hired construction manager during the "Bidding and Award Phase" were described in Article 3.4 of the Sample Contract as follows: At this stage the Construction Manager assumes the leadership responsibility for the project team. Upon obtaining all necessary approvals of the Construction Documents including a Building Permit as required by FBC and Owner approval of the latest Statement of Probable Construction Cost, the Construction Manager shall obtain bids and commence awarding construction contracts. The Owner will have the drawings and specifications printed for bidding purposes, either through its open Agreements with printing firms or as a reimbursable service through the Project Consultant, or as set forth in Article 26.03.08 in the General Conditions of this CM Agreement. The Construction Manager shall review the Owner[']s records of pre-qualified contractors, including Minority/Women Business Enterprises (M/WBE) and prepare a list of those recommended for work pursuant to this contract. The Owner reserves the right to reject any or all subcontractors recommended for approval. The Construction Manager shall maintain a list of all potential bidders, including M/WBEs and those who are approved as pre-qualified. The Construction Manager shall prepare and issue the bid packages to cover the scope of the Work for this contract. The Construction Manager, in coordination with the Owner, shall schedule pre-bid conferences as required and issue a written summary of the conference(s). Solicitation of Bids: .1 The Construction Manager shall enter into Contracts with the firm who submits the lowest, responsive and responsible bid. The Construction Manager shall advertise according to SBBC policies as amended from time to time for bids on Documents 00101 at least three (3) times, seven (7) days apart, and with the third (3rd) advertisement prior to a pre-bid conference if applicable and at least seven (7) days prior to the bid opening. Written proposals based on drawings and/or specifications shall be submitted to the Construction Manager. The written proposals shall be opened at the usual location for bid opening. A tabulation of the results shall be furnished by Construction Manager to the Owner. .6 The Construction Manager and Owner shall open at the Construction Manager location and evaluate at least three bids, if possible, for each portion of the Work solicited. The Construction Manager shall also make recommendations to the Owner for award to the lowest, responsive, and responsible bidder. A recommendation for award to other than the lowest bidder shall be justified in writing. Those services to be performed by the hired construction manager during the "Construction Phase" were described in Article 3.5 of the Sample Contract as follows: The Construction Manager shall fully comply with the provision[s] of the Owner's Project Manual, including but not limited to Division 0 and 1, and the attached General Conditions of this contract. In the event of a conflict between this Agreement and such documents the agreement shall control. The Construction Manager shall provide the minimum staffing level as set forth in Exhibit C-F for this project. The Construction Manager shall maintain and prepare monthly updates for all project schedules, including Critical Path elements, provide written progress reports, describe problems and corrective action plan(s) and conduct briefings as required by the Owner. Such information shall be provided to the Owner and Project Consultant in the form of a written report with progress payments requests. The Construction Manager may self perform certain construction work when it benefits the Owner, results in cost and time savings, and is pre-approved by the Owner in writing. The Construction Manager shall coordinate project close-out, operation, and transition to occupancy. The Construction Manager shall coordinate with the Project Consultant to provide complete project records including project manual and electronic Computer Assisted Drafting (CAD) drawings corrected to show all construction changes, additions, and deletions. (Construction Manager shall note all changes on the as-builts for the Project Consultant to reflect on the drawings and CAD disc.) The Construction Manager shall coordinate with the Owner's staff to prepare the Certificate of Final Inspection. The Construction Manager shall obtain and review all warranties, operation and maintenance manuals and other such documents, for completeness, have them corrected if necessary and submit them to the owner. The Construction Manager shall complete all punch list items generated by the Building Code Inspector (BCI), the Owner, the Project Consultant and any others having jurisdiction over the project during its inspections. Those services to be performed by the hired construction manager during the "Warranty Phase" were described in Article 3.6 of the Sample Contract as follows: The Construction Manager shall provide a minimum one (1) year warranty and shall coordinate and supervise the completion of warranty Work during the warranty period. Construction Manager shall participate with the Owner in conducting of warranty inspections held on the sixth (6th) and eleventh (11th) months after occupancy. Construction Manager shall deliver as-built drawings, warranties and guaranties to the Owner. Where any Work is performed by the Construction Manager's own forces or by subcontractors under contract with the Construction Manager, the Construction Manager shall warrant that all materials and equipment included in such work will be new except where indicated otherwise in Contract Documents, and that such Work will be free from improper workmanship and defective materials and in conformance with the Drawings and specifications. With respect to the same Work, the Construction Manager further agrees to correct all work found by the Owner to be defective in material and workmanship and not in conformance with the Drawings and Specifications for a period of one year from the Date of Owner Occupancy of the Project or a designated portion thereof or for such longer periods of time as may be set forth with respect to specific warranties contained in the trade sections of the Specifications or by Florida Law. The Construction Manager shall collect and deliver to the Owner any specific written warranties given by others as required by the Contract Documents. The Construction Manager shall provide a Warranty Summary Report at the end of the 6- month warranty period and 11-month warranty period. This report shall provide at a minimum: Description of each warranty item during the period. Date item reported to Construction Manager. Date item corrected. If more than one trip required, document each. Description of action taken to cure warranty item. Obtain signature of school principal or designee acknowledging warranty items have been completed. Other pertinent information, if applicable. Article V of the RFQ (as revised) provided the following information with respect to "Fees and Pricing": Successful proposers shall negotiate a fee for providing construction management services during the design phase and subsequently shall negotiate a GMP for construction services during the bidding and construction phase. Architectural/Engineering firms will develop Contract documents under separate contract with the Board. As the parties stipulated in Admitted Fact 26, Article VII of the RFQ (as revised) "[was] entitled 'Board's Right to Reject' and state[d] in part as follows": The Board reserves the right to reject any and all proposals and readvertise the project(s) at any time prior to Board approval of the recommended proposer(s) and the negotiated agreement(s). All costs incurred in the preparation of the Proposal and participation in this RFQ process shall be borne by the proposers. Proposals submitted in response to this RFQ shall become property of the Board and considered public documents under applicable Florida law. The District reserves the right to accept or reject any and all submittals, or to waive any technicalities or formalities when and if it is in the best interests of the District. Rejection: A submittal shall be rejected for failure to comply with one or more of the following requirements: The proposer is not licensed or registered in the State of Florida to provide the proposed services. The submittal shall be rejected if not received by The School Board of Broward County, Florida by the specified deadline. Not Applicable. Article XI of the RFQ (as revised) discussed "Submittal Requirements" and contained the following provisions concerning "Related Projects Similar in Scope (to this RFQ)" and "References": Related Projects Similar in Scope (to this RFQ): List educational projects of related scope and size. Provide name and location of project, project owner, project owner name, address phone and contact person, project cost, current project status, firm[']s key personnel assigned to the project. . . . L. References: Provide a list of all projects, clearly stating name of project, using Construction Management at Risk, completed or in progress within the last five (5) years from due date of this RFQ. If Proposer[']s firm also has offices outside the tri-county area (meaning Broward, Miami-Dade, or Palm Beach), then at a minimum provide references for all Construction Management at Risk projects in the tri-county area. List projects that are 75 percent or greater of the construction budget statement in the Public Announcement for each listed project. Provide the address, telephone numbers and contact person(s) listed as references for each project. . . . As the parties stipulated in Admitted Fact 27, "[o]n or about September 3, 2008, [Respondent] received proposed qualifications to provide construction management at risk services for [the FHS Project] from 13 vendors including Petitioner." Among the other "vendors" submitting "proposed qualifications" were Elkins Constructors, Inc., the Morganti Group, Inc., and W. G. Mills, Inc. As the parties stipulated in Admitted Fact 28, "[i]n accordance with the terms and conditions of the RFQ [as revised] and [Respondent's] governing statutes, rules and policies, Respondent's Qualifications Selection and Evaluation Committee ('QSEC') recommended the rejection of certain proposers for their failure to comply with [Respondent's] pre-qualification requirements or limits." There were three such "proposers": Elkins Constructors, Inc.; the Morganti Group, Inc.; and W. G. Mills, Inc. At the time of the "submittal due date to this RFQ [as revised]," neither Elkins Constructors, nor the Morganti Group, was "prequalified according to 1013.46 F.S., SREF 4.1(8), and Board Policy 7003" for any project. W. G. Mills, on the other hand, was "prequalified" for certain projects, but only within the following limits: a "[p]er [p]roject [l]imit [of] $25,000,000 [and an] [a]ggregate [l]imit [of] $250,000,000." The "advertised Proposed Construction Budget" of the FHS Project was $29,150,340, which was more than W. G. Mills' "[p]er [p]roject [l]imit [of] $25,000,000." As of the date "proposed qualifications" were due, there were 11 prequalified firms, including W. G. Mills, who had a "[p]er [p]roject [l]imit" of between $17,000,000 and $26,000,000. These firms were not eligible to be awarded the contract for the FHS Project because the project's "advertised Proposed Construction Budget" was in excess of their "[p]er [p]roject [l]imit." W. G. Mills was the only one of these 11 prequalified firms to respond to the RFQ (as revised). As the parties stipulated in Admitted Fact 29, "[i]n accordance with the terms and conditions of the RFQ [as revised] and [Respondent's] governing statutes, rules and policies, [the] QSEC next evaluated and short-listed the remaining proposers. It thereafter received presentations from the short-listed proposers and, after scoring those short-listed proposers, recommended Petitioner . . . to [Respondent] as the proposer with whom to negotiate a contract for services for fees to provide direct management cost of the construction manager and the project's guaranteed maximum price ('GMP')." As the parties stipulated in Admitted Fact 30, "[o]n October 7, 2008, [Respondent] approved [the] QSEC's selection of Petitioner . . . as the vendor with whom negotiations would be had for [the] Fort Lauderdale High School component of the RFQ [as revised] and 'authorized negotiations for Construction Management at Risk Services.' The scope of Construction Management at Risk services was [as noted above] included within the RFQ [as revised]. The summary explanation and background portion of the agenda item to authorize negotiations stated that the 'Superintendent's designees will negotiate the selected Constriction Management at Risk Services fees for the projects and recommend award of contracts at a future School Board Meeting.'" As the parties stated in the "Statement of the Controversy" section of their Joint Pre-Hearing Stipulation, "[n]egotiations between [Respondent] and [Petitioner] occurred between October 2008 [following Respondent's approval of the QSEC's selection of Petitioner] and December 2009." In December 2009, Cubellis, the architectural firm working on the FHS Project for Respondent, was "experiencing some financial difficulties" and there was uncertainty as to whether it would "be able to continue [on] the project." As a result, negotiations between Respondent and Petitioner were halted. Eventually, Cubellis "assigned [its] contract [with Respondent] to somebody else" (specifically, Manuel Synalovski Associates, LLC), but negotiations between Respondent and Petitioner never resumed. Petitioner's last written contract proposal was dated December 10, 2009. It was based on a proposed construction budget of $18,297,367 and provided for the following "Negotiated Contract Terms": Construction Manager Fees: Pre-Design Not Applicable Design Not Applicable Bidding & Award $37,685 Construction Phase Fee $1,172,370 Warranty $35,000 Overhead $289,200 Profit $185,385 General Conditions $659,846 Total $2,379,489 Above Fees based on scope of work issued "Project Scope" document dated 11/5/2009 per 11/9/2009 letter from M. Decker. CM Performance and Payment Bonds and GL Insurance are included based on budgeted contract amount of $18,297,367. Builders Risk, Contingency, and Subcontractor insurance costs are not included in the fees and will be shown in the schedule of values as separate line items as a cost of work. Should the cost of work increase Bonds and GL insurance fees are to be adjusted at insurance providers' invoiced amount. Overhead, profit and bond allowances for Change Orders: 10% Substantial Completion: 570 Final Completion in General Conditions 25.01.02: 600 Construction Phase Fee and General Conditions in 25.01.02: $3,050 per Consecutive Calendar Day Liquidation Damages for Substantial Completion: $1,000 per Consecutive Calendar Day Liquidation Damages for Final Completion: $600 per Consecutive Calendar Day This contract proposal was made following a December 8, 2009, negotiation session at which Denis Herrmann, Respondent's Director of Design and Construction Contracts, had stated that he had negotiated a construction management at risk contract for another project the previous day where the "Construction Manager Fees" were 13.8 percent of that particular project's proposed construction budget. Mr. Herrmann had relayed this information to Petitioner's representatives at the meeting to give them "a flavor for the range [Respondent was] talking about, not to give them a [specific] number [or percentage] that would be acceptable." The "Construction Manager Fees" proposed by Petitioner in its December 10, 2009, offer were slightly less than 13.8 percent of the $18,297,367 proposed construction budget (but they did not cover any "Pre-Design"-related or "Design"-related work). While Respondent has never, in writing, specifically rejected Petitioner's December 10, 2009, offer, neither has ever formally accepted it. As the parties stipulated in Admitted Facts 45 and 48, respectively, Respondent's "Superintendent of Schools has not placed an item on [the School Board] agenda recommending that [Respondent] enter into a contract with [Petitioner] concerning the RFQ [as revised]," and "[Respondent] has not approved a contract with [Petitioner] concerning [the] RFQ [as revised]." It has been two years since "[Respondent] approved [the] QSEC's selection of Petitioner . . . as the vendor with whom negotiations would be had." Significant changes impacting the FHS Project have occurred over that period of time. Respondent now finds itself in the midst of an "unprecedented budget crisis," making it especially imperative that it "take every [possible] step to maximize the purchasing power of the public's dollars." A precipitous decline in revenue available for capital projects (due, in large measure, to a decline in property values, coupled with a reduction in the capital outlay millage rate) has required Respondent to eliminate or scale back various planned projects. The FHS Project is among the projects that have been scaled back. As the parties stipulated in Admitted Fact 31, "[p]rior to, during and subsequent to its negotiations with [Petitioner], [Respondent] determined on several occasions that the project scope of the [FHS Project] needed to be further adjusted, ultimately resulting [in] the following project scope [with strike-throughs and underlining indicating, respectively, deletions and additions]": Concurrent Replacement in two phases to include: Demolish existing swimming pool (buildings 15 and 16). Demolish existing tennis courts and replace with 6 tennis courts. Demolish Buildings 1, 2, 3, 4, 11, 12, 13, and 14. Construct basketball courts. Construct Regional Athletic Facility. Construct (2) 3-story buildings (1 – Administration & 1 - Classroom) of approximately 68,940 GSF combined to include Administration, 3 general classrooms, 5 resource rooms, 4 science labs and related spaces, 4-classroom ESE suites, 1 Business Technology lab, 1 Family and Consumer Science (ProStart) lab, 1 Health Occupations Lab, 1 Pre-Law Public Service Education Lab, Custodial spaces, Textbook Storage, and Student, Staff and Public Restrooms. Remodel Renovate existing Science Building (building 8). Construct Parent Drop Off and Pick Up area and Staff/Visitor Parking. Resurface Student Parking. Construct New Student parking area on the West side of the site to increase parking capacity by 92 spaces. Modify existing temporary bus loop to meet SREF code and ADA standards; modifications will include barricades and covered sidewalk. Redesign courtyard to meet current ADA standards.' As the parties further stipulated in Admitted Fact 31, "[t]he project scope was revised five (5) times between October 7, 2008 and December 2, 2009[,] [and Petitioner] was notified of the changes in scope and acknowledged the same." "[R]evis[ions]" have also been made to the project's budget. Respondent's "5-Year Plan" allocates funding for all costs (including, but not limited to, construction costs4) associated with each of Respondent's funded capital projects. As the parties stipulated in Admitted Fact 32, "[Respondent] adopts and revises its 5-Year Capital Improvement Plan ('5-Year Plan') each year." As the parties further stipulated in Admitted Fact 33: [Respondent's] 5-Year Plan adopted for Fort Lauderdale High School for Fiscal Years 2009-10 to 2013-14 eliminated the $39,491,259 previously budgeted as "Capacity Additions" . . . . Instead, the 2009-10 to 2013-14 Five Year Plan provided $21,050,000 for Capacity Additions . . . . Respondent's current "5-Year Plan" (for the Fiscal Years 2010- 2011 to 2014-2015), which was adopted on September 7, 2010, allocates $22,366,085 to the FHS Project (as scaled back). The dour economic conditions responsible (in part) for the drop in tax revenues available to fund Respondent's capital projects have also led to increased competition in the construction industry and a resultant decline in construction prices. This increased competition is particularly pronounced "in the procurement area of hard bidding." During "the peak of the construction boom," before the downturn in the economy, it was not atypical for Respondent, when it "hard bid" a construction project, to get just one or even no bids in response to the solicitation. Now, Respondent "expect[s] to see between half a dozen [and] a dozen or more bidders." Moreover, recently, winning bids on "hard bid" projects have been, on average, well below these projects' advertised proposed construction budgets. Respondent has not experienced the same overall cost-savings results when it has used the "Construction Management at Risk delivery method." Given the market conditions that exist today, Respondent estimates that the construction costs for the FHS Project (as scaled back) would be no more than $16,950,000 and possibly as little as approximately $13,000,000 (if a "hard bid" were used). These amounts are considerably less than the "Proposed Construction Budget of $29,150,340" that had originally been "advertised." There are prequalified firms (including W. G. Mills) which were not eligible to be awarded the contract under the RFQ (as revised) because their "[p]er [p]roject [l]imit" was less than $29,150,340, but which would now be able to bid on a scaled-back FHS Project were it to be readvertised (with a proposed construction budget of $16,950,000). Another (and perhaps the most significant) difference between the circumstances existing at present and those that existed two years ago (vis-à-vis the FHS Project) is that the design of the project (as scaled back) has advanced to the point that, with a few revisions,5 the construction documents for the project will be 100 percent complete.6 As a result, Respondent no longer has a need for most, if not virtually all, of the "pre-design" and "design" services, described in Articles 3.2 and 3.3 of the Sample Contract, that, back in 2008, it had wanted a construction manager to perform. In April 2010, Respondent's Office of the Chief Auditor issued a report (April 2010 Audit Report) critical of Respondent's use of the "Construction Management at Risk delivery method" in connection with 14 projects "which were included in the Construction Management at Risk Kitchen/Cafeteria RFQ No. 2006-12-FC." The report read, in pertinent part, as follows: The projects included in RFQ No 2006-12-FC were sufficiently completed by the Architect/Engineer firm(s) prior to being advertised as CM at Risk construction projects. The inability [of] any CM firm to provide "professional services" and scheduling of both design and construction phases represents a deviation from the intent of Florida Statutes, SREF and the School Board's CM at Risk contract.[7] In nearly every executed CM at Risk agreement in the Kitchen/Cafeteria program, the Pre- Design and Design phase responsibilities of the CM were stricken from the contract. That is a further representation that the input required by a prospective CM to qualify for the committee selection process was not, nor was it intended to be provided. F.S. 1013.45(1)(c) also states that the use of the CM at Risk delivery method " . . . shall not unfairly penalize an entity that has relevant experience in the delivery of construction programs of similar size and complexity by methods of delivery other than program management." All of the projects in the Kitchen/Cafeteria program were originally intended to be "hard-bid" but were changed to the CM at Risk delivery method. One project was removed from the group prior to the due date of submittals for RFQ No. 2006-12-FC. That hard bid project, Margate ES, cost approximately $5.6 million, including nearly $466,226 in change orders, which was approximately $3.3 million less, on average, than the fourteen (14) projects that remained in RFQ No. 2006-12- FC. Due to the change in delivery method, general contracting firms could have been "unfairly penalized" by the decision to use the CM at Risk delivery method, as many local general contractors have the relevant experience in the delivery of construction programs of similar size and complexity by methods other than the CM at Risk delivery method.
Recommendation We recommend that Facilities & Construction Management discontinue developing construction procurement packages (i.e. RFQ and RFP) for award of CM at Risk agreements when construction management services requested are associated with reused, prototypical or otherwise sufficiently developed construction documents. Kitchen/Cafeteria program data indicates that the benefits associated with the CM at Risk delivery method were not realized using prototypical designs, as the program resulted in over $24 million in avoidable fees while circumventing applicable laws and regulations. On May 10, 2010, Mr. Herrmann sent a letter to Respondent's General Counsel requesting, in light of the April 2010 Audit Report, a "legal opinion related to the award of a Construction Manager at Risk Agreement (CM) to [Petitioner] and whether such an award would comply with Chapter 1013.45(1)(c), S. and State Requirements for Educational Facilities 1999 (SREF)," given that the FHS Project (as scaled back) was then "in the design phase and Phase III 100% Construction Documents [were] being prepared." The concluding paragraph of the letter read as follows: In this project, The Weitz Company has been selected by the board and we intend to recommend award of a contract within several months. An award of a CM agreement in this case would not violate the specific audit recommendation and we believe such an award does not violate statute or SREF. Please advise whether you concur. Mr. Herrmann has since changed his opinion. He now believes (reasonably so, in the undersigned's view) that "award of a CM agreement" in the instant case would be inconsistent with the "audit recommendation" inasmuch as the FHS Project (as scaled back) now has "sufficiently developed construction documents." On May 18, 2010, Mr. Herrmann sent another letter to Respondent's General Counsel. This letter read as follows: This is to provide you with additional information relating to a request for a legal opinion regarding the award of a Construction Manager at Risk Agreement (CM) to The Weitz Company. Please also refer to the attached memos dated 10/14/09, 11/16/09 and 5/10/10. In summary, we have requested opinions based on the following: Whether such an award would comply with applicable statutes, SREF, and board policy given the extent of the changes to the scope and budget. Whether such an award would comply with Chapter 1013.45(1)(c), F.S. and State Requirements for Educational Facilities 1999 (SREF). We have recently revised the construction cost estimate as a result of current market conditions, and the project consultant, Manuel Synalovski [Associates], LLC agrees with the revised estimate. The change in the cost estimate is as follows: In the RFQ: $29,150,340 October 2009 (Change in scope): $21,770,000 November 2009 (Market conditions): $18,297,367 May 2010 (Market conditions) $16,950,000 Please advise whether we should proceed with the award or reject all bids. Respondent's General Counsel responded to neither of these May 2010, letters from Mr. Herrmann. As the parties stipulated in Admitted Fact 34, "[o]n June 15, 2010, [Respondent] approved Item J-15 during its June 15, 2010, Regular Meeting." The "Requested Action" and "Summary Explanation and Background" section of the Agenda Request Form for this agenda item (J-15) provided as follows: REQUESTED ACTION Approve the change in the delivery method from Construction Management at Risk to Design/Bid/Build and the First Amendment to the Professional Services Agreement with Manuel Synalovski Associates, LLC (MSA) for Fort Lauderdale High School, Phased Replacement Project No. 095-27-01, dated February 12, 2008. SUMMARY EXPLANATION AND BACKGROUND Scope of Work: Basic Services Amended 6/15/10: This item changes the delivery method from Construction Management at Risk to Design/Bid/Build. Demolish existing Swimming pool (Buildings 15 and 16); demolish existing tennis courts; demolish Buildings 1, 2, and 3; construct two 3-story buildings (1 administration and 1 classroom) of approximately 68,940 gross square feet combined to include administration, 3 general classrooms, 5 resource rooms, 4 science labs and related spaces, 4 ESE classroom suite, 1 business technology lab, 1 family and consumer science (ProStart) lab, 1 health occupations lab, 1 pre-law public service education lab, custodial spaces, textbook storage, and student, staff, and public restrooms. Remodel existing science building (Building 8). Construct new parent drop off and pick up areas and staff/visitor parking. Construct new student parking area on the west side of site to increase parking capacity by 92 spaces. Modify existing temporary bus loop to meet SREF, Florida Building Code and ADA Standards. ADA modifications will include barricades and covered sidewalk. Remodel existing courtyard for ADA access to gym and auditorium. MSA and the Superintendent's Negotiations Committee negotiated a total reduction in [architectural] fees from the February 12, 2008 Board approved amount of $2,021,000 to $1,683,650. This decrease in the Basic Services Fees totals $337,350 and is decreased as follows: Phase IV (Bidding and Award) by $54,357, Phase V (Construction Administration) by $269,250, and Phase VI (Warranty) by $13,743. This fee reduction is as a result of a reduction of the original scope as per Attachment 2 to the First Amendment. This First Amendment also reduces the Fixed Limit of Construction Cost (FLCC) from $29,150,340 to $16,950,000 as a result of the reduction in scope and construction costs resulting from current market conditions. The Risk Management Department and the Office of the Chief Auditor have reviewed this First Amendment. The School Board Attorney has approved this First Amendment as to form and legal content. As the parties stipulated in Admitted Fact 35, on June 30, 2010, "[Respondent] posted its Revised Recommendation[] and Tabulation for [the FHS Project, which] set forth the following recommendation": Per Article VII.A of the RFQ, based upon the recommendation of the Qualification Selection Evaluation Committee, the Facilities and Construction Management Division intends to recommend that The School Board of Broward County, Florida, at the School Board meeting on July 20, 2010, reject all responses received for Fort Lauderdale High School Project No. P.000687. The original, intended scope of work as set forth in the original RFQ is substantially and materially different than the revised scope of work and budget in the proposed contracts and such work should be re- advertised and re-bid. This decision to "reject all responses" and "re- advertise[] and re-bid" was based on an honest and good faith exercise of discretion, intended, ultimately, to allow Respondent to receive (in the words of Mr. Herrmann) "more bang for [its] buck." As the parties stipulated in Admitted Facts 39 through 41, Petitioner timely protested Respondent's intended "reject[ion] [of] all responses." As the parties stipulated in Admitted Facts 42 through 44, after the parties had unsuccessfully attempted "to resolve the protest by mutual agreement," Respondent, at Petitioner's request, referred the matter to DOAH on August 23, 2010.
The Issue The issue to be determined in this case is whether the Notice of Intent to Issue Order Requiring Access to Property (“Access Order”) issued by the Department of Environmental Protection (“Department”) and directed to Glenda Mahaney, as the property owner, is a valid exercise of the Department’s authority.
Findings Of Fact Petitioner Glenda Mahaney is a natural person and the owner of the property identified in the Access Order. The Department is the state agency which has been granted powers and assigned duties under chapters 376 and 403, Florida Statutes, for the protection and restoration of air and water quality and to adopt rules and issue orders in furtherance of these powers and duties. Background The groundwater beneath a parcel of land adjacent to Petitioner’s property was contaminated with petroleum when the land was used in the past for auto salvage operations. Initial groundwater sampling near the border of Petitioner’s property showed groundwater contamination by gasoline constituents which exceeded Groundwater Cleanup Target Levels (“GCTLs”). In other words, the contamination was at levels that required cleanup. However, later sampling showed the concentration of contaminants had decreased below GCTLs, probably as a result of natural attenuation. The existing data suggests that any groundwater contamination beneath Petitioner’s property is probably now at a level that would not require cleanup. However, the Department issued the Access Order because the Department is not certain about the contamination beneath Petitioner’s property and because Petitioner has continually requested further investigation. Petitioner believes contamination from the auto salvage site has caused illness in a tenant and even contributed to other persons’ deaths. However, no expert testimony was received on this subject and no finding is made about whether contamination exists on Petitioner’s property which has caused illness or death. The Department’s Site Investigation Section wants access to Petitioner’s property in order to determine whether contamination has migrated beneath Petitioner’s property and, if it has, the extent and concentration of the contaminants. The Department wants to: (a) install up to five temporary groundwater monitoring wells, (b) collect groundwater samples from the wells, (c) collect a groundwater sample from Petitioner’s potable water well, and (d) remove the monitoring wells after the sampling. The Access Order includes terms related to advance notice, scheduling, and related matters. Liability Although Petitioner believes petroleum contamination is present and wants it cleaned up, she objects to the provision of the Access Order related to liability. Paragraph 9(e) of the Access Order provides: Ms. Mahaney shall not be liable for any injury, damage or loss on the property suffered by the Department, its agents, or employees which is not caused by the [sic] negligence or intentional acts. Petitioner insists that she should not be liable under any circumstances for injuries or damages suffered by Department’s agents or employees who come on her property for these purposes. She demands that the Department come onto her property “at their own risk.” At the final hearing, the Department stated that it did not intend to impose on Petitioner a level of liability different than the liability that would already be applicable under Florida law. The Department offered to amend Paragraph 9(e) of the Access Order to indicate that Petitioner’s “liability, if any, shall be determined in accordance with Florida law.” Scope of the Investigation Petitioner objects to the proposed groundwater sampling because she does not believe it is extensive enough. Petitioner also believes the Department should test for soil contamination. The Department’s expert, David Phillips, testified that the proposed monitoring well locations were selected based on the direction of groundwater flow in the area and the wells are along the likely path of migration of any contaminated groundwater from the former auto salvage site. Another Department witness, Tracy Jewsbury, testified that no soil contamination was found on the auto salvage site, so the Department has no reason to expect there would be soil contamination on Petitioner’s property that came from the auto salvage operation. The Department will use the data collected from the wells to determine if contamination is present and whether future contamination assessment and/or remediation activities are necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection withdraw the Access Order or, alternatively, that Paragraph 9(e) of the Access Order be amended to provide that Ms. Mahaney’s potential liability, if any, shall be determined in accordance with Florida law. DONE AND ENTERED this 15th day of November, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2017. William W. Gwaltney, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Glenda Q. Mahaney Post Office Box 123 Mount Dora, Florida 32756 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed
The Issue The issues to be determined in this case are whether Respondents should pay the administrative penalty, investigative costs, and attorney’s fees and undertake the corrective actions that are demanded by the Florida Department of Environmental Protection (the “Department”) as set forth in the Final Amended Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment.
Findings Of Fact The Parties The Department is the administrative agency of the state of Florida having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of chapters 376 and 403, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code Title 62. Germain is a licensed Florida attorney. From May 2006 to January 2013, Germain was the record owner of the real property at 1120 West Main Street, Leesburg, Lake County, Florida (the “Germain property”). Leesburg’s is an active Florida corporation that was incorporated in January 2013 by Germain. Germain is Leesburg’s sole corporate officer and sole shareholder and has managerial authority over the Germain property. John Doe 1-5 is a placeholder designation used by the Department for the purpose of covering all potential entities to which Germain might transfer the property. No other such entity materialized. Background A gas station was operated on the Germain property continually from the 1920s through the late 1980s. During the 1980s and perhaps for a longer period, C.E. Griner operated the gas station under the name Griner’s Service Station. Griner’s Service Station had at least three underground storage tanks (“USTs”) used to store leaded and unleaded gasoline. In 1989 or 1990, Griner ceased operation of the gas station and the USTs were filled with concrete and abandoned in place. The Germain property has not been used as a gas station since that time. In 1990, the Department inspected the Germain property and prepared a report. The inspection report noted that the USTs at the Germain property “were not cleaned properly prior to filling with concrete.” The report also noted that the tanks were not properly abandoned in place. No evidence was presented to explain in what way the tanks were not properly abandoned, or to indicate whether the Department took any enforcement action based on this report. In 1996, Gustavo Garcia purchased the Germain property from Griner. In May 2006, Germain purchased the property from Garcia. Another gas station, operating for many years under several names (now “Sunoco”), is located at 1200 West Main Street, across a side street and west of the Germain property. Since 1990, one or more discharges of petroleum contaminants occurred on the Sunoco property. There were also gas stations at the other two corners of the Main Street intersection, but no evidence was presented about their operations or conditions. In March 2003, apparently as part of a pre-purchase investigation, testing was conducted at the Sunoco property that revealed petroleum contamination in the groundwater. Soil contamination was not reported. S&ME, Inc. (“S&ME”), an environmental consulting firm, subsequently submitted a discharge report to the Department’s Central District Office in Orlando. Later in 2003, S&ME conducted an initial site assessment for the Sunoco property. In the report it produced, S&ME noted that it found concentrations of petroleum contaminants in the groundwater that were above the Department’s Groundwater Cleanup Target Levels (“GCTLs”). The concentrations exceeding GCTLs were in samples taken from the eastern side of the Sunoco property, closest to the Germain property. In 2004, S&ME completed a Templated Site Assessment Report for the Sunoco property. Groundwater samples from the eastern portion of the Sunoco property again revealed petroleum contamination exceeding GCTLs. Garcia, who owned the Germain property at the time, allowed S&ME to conduct soil testing on the Germain property. The soil samples were taken by direct push methods and were tested with an organic vapor analyzer (“OVA”), which revealed toluene, ethylbenzene, total xylenes, naphthalene, 1-methyl naphthalene, and total recoverable petroleum hydrocarbons exceeding the Department’s Soil Cleanup Target Levels (“SCTLs”). In 2005, another private environmental consulting firm, ATC Associates, Inc. (“ATC”), performed a Supplemental Site Assessment on the Sunoco property and produced a report. As part of its assessment, ATC installed three monitoring wells on the Germain property and collected groundwater samples. These groundwater samples revealed petroleum constituent concentrations that exceeded GCTLs and were higher than concentrations found in groundwater samples taken under the Sunoco property. Both the 2004 and 2005 site assessment reports concluded that the groundwater in the area flowed from the southeast to the northwest; that is, from the Germain property toward the Sunoco property. Germain referred to a figure in S&ME’s 2004 report that he claimed indicated a southeasterly flow of groundwater from Sunoco toward the Germain property. However, a preponderance of the evidence establishes that groundwater flow in the area is generally northwesterly from the Germain property toward the Sunoco property. Based on the results of its testing, ATC concluded in its site assessment report that the groundwater contamination on the eastern portion of the Sunoco property had migrated from the Germain property. ATC also took soil samples from the Germain property. It screened the soil samples with an OVA and reported petroleum contamination exceeding the Department’s SCTLs. Petroleum contamination in soil typically does not travel far horizontally. It remains in the vicinity of the source. Therefore, the soil contamination found on the Germain property indicates an onsite source of the contamination. All of the assessment reports were filed with Seminole County, presumably with the Department of Public Safety, Emergency Management Division, which is the local entity with which the Department contracted to inspect and manage petroleum facilities in the area. These reports were public records before Germain purchased his property. A June 2005 Memorandum from Seminole County informed Bret LeRoux at the Department’s Central District Office that ATC’s 2005 site assessment report indicated the Germain property was the source of petroleum contamination. The Memorandum recommended that the Department contact the owner of the property about the contamination. The Memorandum was filed at the Department. After the Department received the Memorandum, it requested and received the site assessment reports from Seminole County. The Department did not notify Garcia or the public about the contamination in 2005. The Department did not notify Germain about the contamination until August 2007. All Appropriate Inquiry The principal factual dispute in this case is whether Germain undertook “all appropriate inquiry into the previous ownership and use of” the Germain property before purchasing it, as required by section 376.308(1)(c)1/: [A person acquiring title to petroleum- contaminated property after July 1992] must also establish by a preponderance of the evidence that he or she undertook, at the time of acquisition, all appropriate inquiry into the previous ownership and use of the property consistent with good commercial or customary practice in an effort to minimize liability. Before he purchased the Germain property in 2006, Germain knew that it had been a gas station for a number of years. Garcia told Germain that the USTs had been filled with concrete and were “within the law.” Germain was also aware that the Sunoco USTs had recently been excavated and that there was a problem with the tanks and possible contamination there. Germain said he spoke with neighbors about the property, but he did not say what he learned from them. Before the purchase, Germain conducted a visual inspection of the property and saw “several little metal plates” in the parking lot. Germain claimed it was only later that he learned that some of the plates were covers for groundwater monitoring wells. Germain said he visited and reviewed files at a Lake County office, but he was not specific about which county offices he visited. He also went to the Leesburg Historic Board to review property records. Germain’s testimony was not clear about what records he saw on these visits. Germain did not go to the office of the Seminole County Department of Public Safety, Emergency Management Division, to view records pertaining to the Germain property. He did not claim to have gone to the Department’s Central District Office in Orlando. In other words, Germain did not go to the offices of the agencies responsible for regulating petroleum USTs. Nor did Germain say that he talked to any knowledgeable employee of these agencies by telephone about possible contamination issues on the Germain property. While at a Lake County office, Germain searched the DEP website and saw two documents that indicated the USTs on the Germain property had been closed in place. One of the documents indicated a cleanup status of “no contamination.” Germain claimed that he relied on these documents to conclude that the property was clean. The Department explained that the phrase “no contamination” is used in its database as a default where no contamination has been reported and no discharge form has been filed. It is not a determination based on a site investigation that the site is free of contamination. However, the Department had received information that the Germain property was contaminated, so its explanation of the “no contamination” status for the Germain property was unsatisfactory. Germain does not practice environmental law. He neither claimed nor demonstrated knowledge or experience with the legal or factual issues associated with petroleum contamination. Germain did not present evidence to establish that he followed “good commercial or customary practice” in his investigation of the property as required by section 376.308(1)(c). Good commercial practice in the purchase of property upon which potentially contaminating activities have occurred entails consultation with a person with appropriate knowledge and experience. Germain did not consult with an environmental attorney or environmental consultant regarding the potential liability associated with property used as a gas station. If Germain had hired an environmental consultant to assist him, the consultant would have known where to find public records about the gas station, including any soil and groundwater analyses. An environmental consultant would have seen the site assessment reports and other public records that indicated petroleum contamination on the Germain property. A consultant would likely have recommended a Phase I environmental site assessment (“ESA”). A Phase I ESA entails, generally, determining past uses of a property, inspecting the property for visible indications of potential contamination, and reviewing aerial photographs, historical documents, and public records related to the property and its surroundings. A Phase II ESA would follow if potential contamination is discovered and usually includes taking soil and groundwater samples. In considering whether all appropriate inquiry was undertaken by a purchaser of contaminated property, section 376.308(1)(c) directs the court or administrative law judge to take into account: any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection. Germain did not have specialized knowledge regarding the regulation of petroleum USTs. However, as a lawyer, he was familiar with the practice of employing or working with professionals with specialized knowledge in order to achieve the objectives or solve the problems of his clients. If Germain’s legal assistance had been sought by a client to solve an environmental problem, Germain would have declined to proceed because he did not possess the requisite knowledge or he would have sought the assistance of an environmental lawyer or environmental consultant. In purchasing the Germain property, Germain did not undertake the reasonable steps a lawyer must take for a client. No evidence was presented about the relationship of the purchase price to the value of the Germain property. Germain did not show that the site assessment reports and other documents discussed above were not “reasonably ascertainable information.” Although a visual inspection by a lay person would not have disclosed the presence of contamination at the property, an environmental consultant would have recognized the groundwater monitor wells and would have known to seek information about the reason for their installation and the groundwater sampling results. Taking all relevant considerations into account, Germain failed to show that he made all appropriate inquiry before he purchased the Germain property. Germain transferred the property to Leesburg’s in January 2013 in part to limit his potential personal liability for petroleum contamination. The Germain property is Leesburg’s primary asset. Because Leesburg’s took title to the Germain property after the NOV was issued, it had full knowledge of the contamination and cannot claim to be an innocent purchaser. Post-Purchase Investigation In August 2007, the Department sent Germain a letter informing him that the Department had reason to believe his property was contaminated with petroleum and requiring him to conduct a site assessment pursuant to rule 62-770.600(1).2/ In September 2007, the Department sent Germain the 2004 and 2005 site assessment reports. Germain did not conduct a site assessment. At the final hearing, the Department did not state whether it had made any effort to take enforcement action against Griner, whom the record evidence indicates was the owner of the gas station when the discharge occurred. In 2012, the Department issued Germain a notice of violation for failing to conduct a site assessment and remediation. After Germain transferred the property to Leesburg’s, the Department issued the Final NOV to add Leesburg’s as a Respondent. The Final NOV seeks penalties of $10,000 against Germain, and $10,000 against Leesburg’s. While investigating this matter, the Department incurred expenses of $11,380.37 in investigative costs. Confirmation of On-site Contamination Despite the site assessment reports that documented contamination on the Germain property, Germain disputed the Department’s claim that the property was contaminated. The Department conducted testing and completed a Site Investigation Report in 2010. Because Germain would not allow the Department onto his property, the Department installed groundwater monitoring wells adjacent to the Germain property to the west and south, and collected groundwater samples. The Department confirmed the northwesterly flow of groundwater documented in previous reports and found elevated levels of petroleum contaminants above GCTLs, including benzene, ethylbenzene, toluene, xylene, total lead, EDB, and total recoverable petroleum hydrocarbons. Monitoring wells west of, or downgradient of, the Germain property showed high levels of groundwater contamination, while monitoring wells to the south and southeast, or upgradient of the property showed no signs of contamination, indicating that the source of the groundwater contamination was on the Germain property. Based on the site assessments and its own investigation, the Department determined that the Germain property is the source of petroleum contamination detected along the eastern portion of the Sunoco property. Germain and Leesburg’s did not present any expert testimony to support their claim that the Germain property is not contaminated or that the contamination migrated to the Germain property from offsite. A preponderance of the record evidence shows that the Germain property is the source of the petroleum contamination found in the onsite soil and groundwater, as well as in groundwater on the eastern portion of the Sunoco property.
