Findings Of Fact At all times material hereto Ralph Thomas West was a licensed real estate salesman with license number 0364011, and Charles De Menzes was a licensed real estate broker with license number 0174324. De Menzes was operating as qualifying broker and officer of De Menzes Realty, Inc., 2116 East Silver Springs Boulevard, Ocala, Florida, license number 0208877. De Menzes Realty, Inc. was a corporation licensed as a broker in Florida. From approximately September 3, 1981 to approximately June 14; 1984; West was licensed and operating as a real estate salesman in the employ of De Menzes Realty, Inc. On March 31, 1984, West obtained an exclusive right of sale listing contract from James M. and Grace Bell for the sale of certain real property. The listing contract was for six months, ending on September 30, 1984, and specified that the listing would be placed with Multiple Listing Service. West had the Bells sign the listing contract, gave them a copy, and returned to De Menzes Realty where he signed the listing and then placed it on the secretary's desk for presentation to, and signature by, De Menzes. Standard office practice was that all listings were placed in a file folder after the salesman and De Menzes had signed them, other required authorization forms were placed in the file and it was returned to the salesman who was then responsible for having all required forms in the file·assigned. The salesman then was supposed to return the file to the secretary who would place the listing with the Multiple Listing Service (MLS). De Menzes told his salesmen that they were responsible for following up on the file and making sure the listing had been placed with MLS. De Menzes does not routinely follow up on listings to insure that salesmen carry out these responsibilities, and he took no action on the Bell listing after executing the exclusive listing. After De Menzes signed the Bell listing, it was placed in a file folder along with Key Box Authorization and Notice to Sellers forms which had to be signed by the Bells. West gave these forms to the Bells on April 1, 1984, and they signed them on that date. They also gave West a key to their property and he placed a lock box on the property door. On April 7, 1984, an auction of the Bell property was held by Max Heubner, who was a licensed real estate salesman working in the employ of De Menzes Realty, Inc. as an auctioneer. Huebner arranged for the auctions himself, including the advertising, and conducted them himself. He did not seek or obtain De Menzes' approval to hold auctions. Huebner would routinely give De Menzes a copy of his auction fliers so that De Menzes would be aware that an auction was being held in case someone called the office about it. The Bell property was not sold as a result of this auction. The Bell listing was never placed in MLS. West did show the property to two people following the auction but never followed up to be sure the listing was entered in MLS. After West left the employ of De Menzes Realty, Inc., on or about June 14, 1984, no efforts were undertaken by De Menzes Realty to sell the Bell property. De Menzes Realty, Inc. and Charles De Menzes were unaware of the Bell listing until early July, 1984, when Grace Bell called the office to inquire about progress in selling the property. Gail Barbee, broker- salesperson at De Menzes Realty, told Grace Bell that there was no listing on file with De Menzes Realty, Inc., and no listing of their property had ever been placed with MLS. Barbee sent Bell a new listing contract on July 19, 1984, but the Bells decided not to reexecute another listing. On October 4, 1984, Barbee returned pictures of the property, as well as a key which Bell had sent her in response to Barbee's letter in July. In early May, 1985, West was going through his briefcase and found the entire Bell listing file; including the original listing contract. This was not a file which he prepared on the subject property but was the actual office file prepared on this listing by personnel of De Menzes Realty, Inc. West had placed the file in his briefcase by mistake and did not realize he had it until May, 1985. He subsequently submitted this file to Petitioner on May 30, 1985. The file had been in his sole possession for approximately a year, during which time he had completely forgotten about the listing, and had left the employ of De Menzes Realty.
Recommendation Based upon the foregoing it is recommended that Respondents, Charles De Menzes and De Menzes Realty, Inc., each be reprimanded. DONE and ENTERED this 16th day of October, 1985, at Tallahassee, Florida. DONALD D. CONN, 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 16th day of October, 1985. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 1. 4. Adopted in Finding of Fact 1. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 3. 7. Adopted in Finding of Fact 4. 8. Adopted in Finding of Fact 5. 9. Adopted in Finding of Fact 6 and 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6 and 7. Adopted in Finding of Fact 3 and 4. Rulings on Respondent's Proposed Findings of Fact: Rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3 and 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 2. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6 and 7. Adopted in Finding of Fact 7. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 8. Rejected as irrelevant. Adopted in Finding of Fact 8. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, FL 32801 Harvey R. Klein, Esquire 333 N.W. 3rd Avenue Ocala, FL 32670 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Orlando, FL 32801
The Issue The issues in this case are whether Respondent violated Sections 475.25(1)(a),(b), and (e) and 475.42(1)(a),(b), and (d), Florida Statutes (1997), by operating as a broker without holding a valid broker's license, operating as a broker while licensed as a salesperson, collecting money except in the name of his employer, and committing misrepresentation, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust; and, if so, what, if any, penalty should be imposed. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a salesperson pursuant to license number 0575377. The last license issued was issued as an involuntary inactive salesperson at 361 Godfrey Road Southeast, Palm Bay, Florida 32909. After March 31, 1995, Respondent's license as a salesperson became inactive after Respondent did not renew it. Between March 1994 and January 1997, Respondent was employed as a salesperson by Prestige Homes of Brevard, Inc. ("Prestige"). Prestige is a Florida corporation wholly owned by Mr. Mark Pagliarulo and Mr. John Wales. Prestige is engaged in the business of residential construction. Mr. G. Wayne Carter was the sponsoring broker for Respondent from March 1994 through January 1997. Mr. Carter was licensed in the state as a broker until his license was revoked in 1998. Between March 1994 and January 1997, Prestige paid Respondent a sales commission of three percent of the sales price of each home constructed by Prestige and sold by Respondent. Prestige paid Respondent a weekly draw against commissions earned by Respondent. Mr. Carter, the sponsoring broker for Respondent, had no knowledge of the payments received by Respondent. Respondent did not deposit any sales commissions to Mr. Carter's escrow account. Respondent participated in various activities that violate relevant provisions in Sections 475.25 and 475.42. Respondent collected $1,100 from Marcia Pitts for a sprinkler system, a $1,000 initializing fee from Linda and David Grogan, and a $1,000 "design fee" from Mrs. Robert Leudesdorf. Respondent converted the foregoing sums to his personal use without the knowledge of his employers at Prestige and without the knowledge of Respondent's broker. Respondent operated as a broker without a valid broker's license, while licensed as a salesperson, and collected money for himself rather than for his broker or his employer. Respondent routinely designed variations on a "custom" home design without his employers' knowledge. Respondent then charged the purchasers approximately $1,000 for the plan changes. Respondent routinely deducted the $1,000 fee from the contract price Prestige charged the customer and converted the $1,000 fee directly to his personal use. Respondent failed to disclose to the purchasers that he was not acting on behalf of Prestige. The purchasers believed they were dealing with Prestige. The omission and failure to disclose amounted to a misrepresentation, false pretense, and breach of trust in a real estate transaction. For a time, Respondent's employers at Prestige condoned Respondent's "free lance" activities. Respondent's employers reduced Respondent's draws against commissions by the amount of the "free lance" fees converted by Respondent. After Respondent failed to discontinue his "free lance" activities, however, Prestige terminated Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Sections 475.25(1)(a),(b), and (e) and 475.42(1)(a),(b), and (d), and revoking Respondent's license. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999. COPIES FURNISHED: Steven Johnson, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Steven Michael Wallace 361 Godfrey Road Palm Bay, Florida 32909 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Did the Respondents offer to sell a business opportunity without filing a disclosure statement with the Department and without providing prospective purchasers a disclosure statement at least three working days prior to the receipt of any consideration for the signing of a business opportunity contract contrary to Section 559.80, Florida Statutes?
Findings Of Fact On March 5, 1994, Star Vision was in attendance at a trade show in Jacksonville, Florida. (Petitioner's Exhibits 3,5) Upon investigating Star Vision's activities at the show, the Department's representatives, Bob James and Bill Bassett, found Star Vision to be offering for sale a business opportunity as defined by Chapter 559, Part VIII, Florida Statutes. (Petitioner's Exhibits 3,5) Star Vision offered to sell a business opportunity representing that one could become a "licensee" upon paying $600. (Petitioner's Exhibits 5) Star Vision had not file a copy of the required disclosure statement with the Department prior to making the offering above. (Petitioner's Exhibits 2,3) Granhan and Bray were given a letter notifying them of the filing requirements together with a business opportunity registration package. (Petitioner's Exhibits 2,3) On March 12,1994, Star Vision attended another trade show in Fort Lauderdale, Florida. (Petitioner's Exhibits 4) Upon investigating Star Vision's activities at the show, the Department's representative, James R. Kelly, found Star Vision to be offering for sale a business opportunity. (Petitioner's Exhibits 4) Star Vision represented the following while offering to sell a business opportunity: The regular price of the opportunity was $1,495 but they were running a special of $495 for anyone signing up at the show; and Purchasers would receive training tapes and other training that teaches how to market and sell the product. (Petitioner's Exhibits 4) The Department received a consumer complaint against STAR VISION from Mr. Alan Drake. Upon purchasing a business opportunity from Star Vision, Mr. Drake was provided with audio and video tapes which instruct purchasers how to sell and market the product. (Petitioner's Exhibits 1) Upon selling him a business opportunity, Star Vision did not provide Mr. Drake with a disclosure statement, and has never registered with the Department.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered by the Department of Agriculture and Consumer Services ordering that: Respondents to cease and desist selling business opportunities in the State of Florida, Imposing an administrative fine of $5,000 for each violation, in accordance with Section 559.813(2), Florida Statutes, against Terry Granhan and Mike Bray d/b/a Star Vision Direct Cable in the amount of $15,000. DONE and ENTERED this 30th day of November, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1994. COPIES FURNISHED: Jay S. Levenstein, Senior Attorney Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800 Terry Granhan and Mike Bray Star Vision Direct Cable, Inc. 9050 Highway 64, Suite 115 Memphis, TN 38002 Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Division of Real Estate, was the state agency responsible for the licensing and regulation of real estate professionals in Florida. Petitioner was a licensed real estate salesperson in Florida whose license was listed with Horizon Appraisal Service, Inc. in Ft. Myers. In October, 1989, Clyde H. Ward applied to Goldome Realty Credit Corporation for a $40,000.00 fixed rate mortgage on his property located in Ft. Myers. On October 5, 1989, Goldome sent Mr. Ward a commitment letter for a mortgage initially described as a 30 year fixed rate mortgage, but which was, five days later, amended to a 15 year fixed rate mortgage at 10%, conditioned upon, among other things, a satisfactory appraisal. Consistent therewith, Goldome thereafter contacted its regular appraiser in the area, Horizon Appraisal Service, Inc., and requested that an appraisal of the property be accomplished. Horizon assigned the Petitioner, Ms. Wilcox, to conduct the appraisal. The original first page of her report indicated the property was a manufactured house with a crawl space, not situated on a slab. In reality, however, as was noted on the amended first page of the report, as of October 9, 1989, the property was not a manufactured house and was situated on a concrete slab without a crawl space. Goldome denied a fixed rate mortgage to Mr. and Mrs. Ward but offered them a one year adjustable rate mortgage. The Wards accepted this change under protest. A formal denial of the fixed rate mortgage was sent to the Wards on December 18, 1989 by a form which indicated that their application for the fixed rate mortgage had been denied for (1) inadequate collateral, and (2) "we do not grant credit to any applicant on the terms and conditions you request." The "inadequate collateral" basis for denial noted, however, that a mortgage had been offered, accepted and closed with the Wards under an adjustable rate bank loan. On February 16, 1990, Mr. Ward wrote to Goldome expressing his concern over the denial of the fixed rate loan and the basis for denial. In response to Mr. Ward's letter, on March 7, 1990, Mr. Krohe, Goldome's vice president for residential lending, wrote to Mr. Ward and clearly stated that Goldome's denial of the fixed rate mortgage was based on several areas in the appraisal that caused concern. Mr. Krohe specifically pointed out that the fact that the property was described in the appraisal as being a "mobile home" was not the only reason for denial. In his testimony, Mr. Krohe cited several other reasons for denial. One was that the appraiser indicated that the predominant value of homes in the neighborhood was $35,000.00 and Mr. Ward's application was for a mortgage in excess of that. It is Goldome's policy typically to not make a loan in excess of the predominant value since there would be no way to sell the loan in the secondary market. In addition, comments on the appraisal indicated that homes in the area were a mixture of mobile homes and small CBS or frame houses located on paved and graveled roads, and the homes in the neighborhood reflected average maintenance. The zoning classification for the property was MH-3, which permits mobile home use on the property. Further, the room sizes and layout was indicated as "fair to average" and the appraiser pointed out an incurable functional problem with the room layout. This problem related to the fact that the only full bathroom in the house was located between the master bathroom and the second bedroom and could be reached only through one of those rooms. Further, the appraiser indicated there were no recent sales similar to the subject property in the neighborhood and those sales which were comparable were noted to have superior construction and functional utility. Mr. Krohe pointed out that not one of those concerns by itself necessarily would have caused the fixed rate mortgage applied for to be declined. He notes, however, that underwriting is not a science, and all of those reasons combined caused the underwriter to decline the loan. Notwithstanding his receipt of this letter, Mr. Ward filed a complaint with the Division of Real Estate which was referred to Investigator John Harris for inquiry in March, 1990. During the course of his investigation, Mr. Harris spoke only with the Petitioner, Ms. Wilcox, and with Mr. Ward. On or about March 22, 1990, he met with Petitioner at her place of business, Horizon Appraisal Service. During the course of that interview, Ms. Wilcox admitted she had made a mistake on the first page of the appraisal report whereon the property w as described as a manufactured home situated on a crawl space without a slab. She indicated she had corrected the form as soon as she found out about the mistake, occasioned not by a written description but by check marks to pre- printed descriptions which were to be marked if appropriate. The work was done by typewriter, not by pen. Mr. Harris also interviewed Mr. Ward, but did not interview anyone else during his entire investigation even though Ms. Wilcox pointed out that information she had from Ms. Selph and Mr. Krohe indicated that the declination of the loan was not primarily based on this erroneous information. In fact, Ms. Wilcox requested that Mr. Harris contact both Selph and Krohe to verify this but he chose not to do so, relying instead on the information provided to him by Mr. Ward and the March 7, 1990 letter from Krohe to Ward which he interpreted as indicating the denial was based on the description of the property as a "mobile home." That letter does not so indicate, however, and clearly shows that any such classification was not the sole basis for denial of the loan. Notwithstanding this, Mr. Harris considered the fact that Ms. Wilcox admitted to making the mistake as tantamount to an admission of culpable negligence and he recommended that action be taken against her. Thereafter, the matter was referred to a probable cause panel of the Real Estate Commission which, on May 15, 1990, considered the allegations against Ms. Wilcox and, after a review of the file and a presentation by a counsel to the Board, found probable cause. Review of the transcript of the probable cause panel as it relates to Ms. Wilcox reveals that even there, the case was inaccurately described to the panel by its counsel who claims that, "the loan was rejected on the basis of the appraisal which incorrectly described the structure as a manufactured house with a crawl space and no slab." Counsel completely omitted any mention of any of the other bases for denial which were described by Mr. Krohe in his deposition of which the Department was notified but declined to attend, and which could have been determined by an appropriate investigation into the matter. The discussion by the panel members, as documented in the transcript of its meeting, in no way related to the particulars of the alleged misconduct but instead concerned itself primarily with the status of the appraiser. In short, it is clear that the probable cause panel's finding of probable cause was based only on its review of the completely inadequate investigation by Mr. Harris and the slanted comments of the panel's counsel. Nonetheless, an Administrative Complaint was filed against the Petitioner which alleged culpable negligence, breach of trust and misrepresentation and concealment. Prior to the hearing, the Board dismissed the allegation of misrepresentation and concealment. A hearing was conducted on the remaining counts on October 11, 1990 in Ft. Myers before H.O. Parrish. In her Recommended Order dated December 12, 1990, Ms. Parrish concluded that the Department had failed to establish the Respondent committed any misconduct; that Ms. Wilcox had accurately described and evaluated the home within customary ranges; and that the lender verified the reasons for denial of the requested mortgage were not related to the typographical errors pertaining to the type of home, the crawl space, and the slab. Ms. Parrish thereafter recommended a Final Order be entered by the Commission dismissing the Administrative Complaint and such an Order was entered. By Motion dated March 4, 1991, Petitioner's counsel sought reimbursement for the Petitioner of attorney's fees and costs relating to her defense against the allegations made against her in the Administrative Complaint. Respondent has stipulated that the amount claimed for the original representation is reasonable as to both hours claimed and fee per hour. It claims, however, that fees and costs are not reimbursable here because, (1), Petitioner is not a small business entity, and (2), the Division had probable cause to initiate the Administrative Complaint. Petitioner has also submitted an additional affidavit, subsequent to the hearing, in which she claims 7.1 additional hours, at $110.00 per hour, for services rendered subsequent to the final hearing in the original action. Petitioner claims to be an independent contractor to Horizon Appraisal Service, Inc.. She works strictly on commission. She has a desk at the Horizon office and keeps almost all her business information there. She has no other office. She cannot do appraisals for other brokers because she can work for only one broker at a time. She claims to be licensed as an appraiser in Florida but the licensure information on file with the Department of Professional Regulation as of September 4, 1990, reflects she is licensed only as a real estate salesman. By affidavit dated December 6, 1985, and attached to the Independent Contractor Agreement of equal date, Petitioner outlines her working conditions with Horizon. She pays all her own license fees and dues; she is responsible for her own auto and transportation expenses; she pays all her client development costs without reimbursement; she is not required to maintain any set working hours; she takes vacations when she pleases; she is not required to meet any quotas; she receives no minimum salary, sick pay or other fringe benefits; she pays her own income and FICA taxes; and the association with the broker may be terminated by either party at any time. Under the terms of the Agreement referenced above, Petitioner is to get 45% of the fee charged by Horizon for the appraisal done by her. Any lawsuits for the collection of appraisal fees must be maintained only in the name of the Broker, however, since the appraiser is considered to be a subagent. Though the appraiser may conduct the actual appraisal, the Agreement requires that these completed appraisals be submitted to the broker for review, and Mr. Krohe, of Goldome, indicated that his institution would accept only appraisals signed by the broker, not the appraiser. The agreement also stipulates that all clients brought in by the appraiser will result in an additional 10% fee split, and will remain clients of the broker upon termination of the agreement. Notwithstanding the appraiser can take vacations when desired and work when she pleases, she must, however, notify the broker a minimum of two weeks in advance of vacation time and call in on days when she will not be available. The appraiser agrees to a five day turnaround on appraisals, may not solicit listings for the transfer of property other than owned by her, and, significantly, may perform her services only for this broker, Horizon Appraisal Services, Inc.,
The Issue Pursuant to chapter 287, Florida Statutes, and section 255.25, Florida Statutes,1/ the Department of Management Services (DMS) released an Invitation to Negotiate for a contract to provide tenant broker and real estate consulting services to the State of Florida under Invitation to Negotiate No. DMS-12/13-007 (ITN). After evaluating the replies, negotiating with five vendors, and holding public meetings, DMS posted a notice of intent to award a contract to CBRE, Inc. (CBRE) and Vertical Integration, Inc. (Vertical). At issue in this proceeding is whether DMS’s intended decision to award a contract for tenant broker and real estate consulting services to CBRE and Vertical is contrary to DMS’s governing statutes, its rules or policies, or the ITN’s specifications, or was otherwise clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Background5/ DMS released Invitation to Negotiate No. DMS-12/13-007 on March 18, 2013, and released a revised version of the ITN on May 14, 2013, for the selection of a company to provide tenant broker and real estate consulting services to the State of Florida. Thirteen vendors responded to the ITN. The replies were evaluated by five people: Bryan Bradner, Deputy Director of REDM of DMS; Beth Sparkman, Bureau Chief of Leasing of DMS; Rosalyn (“Roz”) Ingram, Chief of Procurement, Land and Leasing of the Department of Corrections; Clark Rogers, Purchasing and Facilities Manager of the Department of Revenue; and Janice Ellison, Section Lead in the Land Asset Management Section of the Department of Environmental Protection. Five vendors advanced to the negotiation stage: Cushman (score of 87), JLL (score of 87), CBRE (score of 87), Vertical (score of 89), and DTZ (score of 86). DTZ is not a party to this proceeding. The negotiation team consisted of Beth Sparkman, Bryan Bradner, and Roz Ingram. Janice Ellison participated as a subject matter expert. DMS held a first round of negotiations and then held a public meeting on July 16, 2013. DMS held a second round of negotiations and then held a second public meeting on August 1, 2013. A recording of this meeting is not available, but minutes were taken. Also on August 1, 2013, DMS posted Addendum 8, the Request for Best and Final Offers. This Addendum contained the notice that “Failure to file a protest within the time prescribed in section 120.57(3) . . . shall constitute a waiver of proceedings under chapter 120 of the Florida Statutes.” The vendors each submitted a BAFO. DMS held a final public meeting on August 14, 2013, at which the negotiation team discussed the recommendation of award. All three members of the negotiation team recommended Vertical as one of the two vendors to receive the award. For the second company, two of the three negotiation team members recommended CBRE and one negotiation team member recommended JLL. DMS prepared a memorandum, dated August 14, 2013, describing the negotiation team’s recommendation of award. The memorandum comprises the following sections: Introduction; The Services; Procurement Process (subsections for Evaluations and Negotiations); Best value (subsections for Selection Criteria, Technical Analysis, Price Analysis, and Negotiation Team’s Recommendation); and Conclusion. Attached to the memorandum as Attachment A was a memorandum dated April 30, 2013, appointing the evaluation and negotiation committees, and attached as Attachment B was a spreadsheet comparing the vendors’ BAFOs. DMS posted the Notice of Intent to Award to CBRE and Vertical on August 16, 2013. Cushman and JLL timely filed notices of intent to protest the Intent to Award. On August 29, 2013, JLL timely filed a formal protest to the Intent to Award. On August 30, 2013, Cushman timely filed a formal protest to the Intent to Award. An opportunity to resolve the protests was held on September 9, 2013, and an impasse was eventually reached. On October 10, 2013, DMS forwarded the formal protest petitions to DOAH. An Order consolidating JLL’s protest and Cushman’s protest was entered on October 15, 2013. Scope of Real Estate Services in the ITN Prior to the statutory authority of DMS to procure real estate brokerage services, agencies used their own staff to negotiate private property leases. Section 255.25(h), Florida Statutes, arose out of the legislature’s desire for trained real estate professionals to assist the State of Florida with its private leasing needs. The statutorily mandated use of tenant brokers by agencies has saved the state an estimated $46 million dollars. The primary purpose of the ITN was to re-procure the expiring tenant broker contracts to assist state agencies in private sector leasing transactions. Once under contract, the selected vendors compete with each other for the opportunity to act on behalf of individual agencies as their tenant broker, but there is no guarantee particular vendors will get any business. The core of the services sought in the ITN was lease transactions. The ITN also sought to provide a contract vehicle to allow vendors to provide real estate consulting services, including strategies for long and short-term leases, space planning, and space management as part of the negotiation for private leases. As part of providing real estate consulting services, vendors would also perform independent market analyses (IMAs) and broker opinions of value (BOVs) or broker price opinions (BPOs). In almost all instances, this would be provided at no charge as part of the other work performed for a commissionable transaction under the resulting contract. However, the resulting contract was designed to allow agencies to ask for an IMA or BOV to be performed independently from a commissionable transaction. In addition to the primary leasing transactions, the contract would also allow state agencies to use the vendors for other services such as the acquisition and disposition of land and/or buildings. These services would be performed according to a Scope of Work prepared by the individual agency, with compensation at either the hourly rates (set as ceiling rates in the ITN), set fees for the service/project, or at the percentage commission rate negotiated between the vendor and the individual agency. However, these services were ancillary to the main purpose of the contract, which was private leasing. In Florida, most state agencies are not authorized to hold title to land. However, the Department of Environmental Protection (DEP) serves as staff for the Board of Trustees of the Internal Improvement Trust Fund (“Board”), which holds title to land owned by the State of Florida. In that capacity, DEP buys and sells land and other properties on behalf of the Board. DEP recently began using the current DMS tenant broker contract for acquisitions and dispositions. The process was cumbersome under the current contract, so DEP asked to participate in the ITN in order to make the contract more suitable for their purposes. The ITN was revised to include DEP’s proposed changes, and DMS had Ms. Ellison serve first as an evaluator and later as a subject matter expert. At hearing, Ms. Ellison testified that she was able to participate fully, that her input was taken seriously, and that the proposed contract adequately addressed DEP’s concerns. While DEP anticipated that under the proposed contract it would use more BOVs than it had previously, there was no guarantee that DEP would use the proposed contract. DEP is not obligated to use the contract and maintains the ability to procure its own tenant brokers. Additionally, administration and leadership changes may cause a switch of using in-house agency employees instead of tenant brokers to perform real estate acquisition and disposition services. Specifics of the ITN The ITN directed vendors to submit a reply with the following sections: a cover letter; completed attachments; pass/fail requirements; Reply Evaluation Criteria; and a price sheet. The Reply Evaluation Criteria included Part A (Qualifications) and Part B (Business Plan). Qualifications were worth 40 points, the Business Plan was worth 50 points, and the proposed pricing was worth 10 points. For the Business Plan, the ITN requested a detailed narrative description of how the vendors planned to meet DMS’s needs as set forth in section 3.01, Scope of Work. The ITN requested that vendors describe and identify the current and planned resources and employees to be assigned to the project and how the resources would be deployed. Section 3.01, Scope of Work, states that the primary objective of the ITN is to “identify brokers to assist and represent the Department and other state agencies in private sector leasing transactions.” The ITN states that the contractor will provide state agencies and other eligible users with real estate transaction and management services, which include “document creation and management, lease negotiation and renegotiation, facility planning, construction oversight, and lease closeout, agency real estate business strategies, pricing models related to relocation services, project management services, acquisition services, and strategic consulting.” Id. The ITN also specifies: Other real estate consulting services such as property acquisitions, dispositions, general property consulting, property analysis and promotions, property marketing, property negotiation, competitive bidding or property, property auctions and direct sales or those identified in the reply or negotiation process and made part of the Contract (e.g., financial services, facilities management services, lease v. buy analyses). The ITN lists the following duties the contractor will perform: Act as the state’s tenant broker, to competitively solicit, negotiate and develop private sector lease agreements; Monitor landlord build-out on behalf of state agencies; Provide space management services, using required space utilization standards; Provide tenant representation services for state agencies and other eligible users during the term of a lease; Identify and evaluate as directed strategic opportunities for reducing occupancy costs through consolidation, relocation, reconfiguration, capital investment, selling and/or the building or acquisition of space; Assist with property acquisitions, dispositions, general property consulting, property analysis and promotions, property marketing, property negotiation, competitive bidding property, property auctions and direct sales; and Provide requested related real estate consulting services. The ITN set the commission percentage for new leases at 4 percent for years 1-10 and 2 percent for each year over 10 years; 2 percent for lease renewals, extensions, or modifications; and 2 percent for warehouse or storage space leases. Id. For “other services,” the ITN states: With respect to all other services (e.g., space management services, general real estate consulting services, property acquisitions, dispositions, general property consulting, property analysis and promotions, property marketing, property negotiation, competitive bidding or property, property auctions and direct sales), compensation will be as outlined in an agency prepared Scope of Work and will be quoted based on hourly rates (set as ceiling rates in this ITN), set fees for the service/project or by percentage commission rate as offered and negotiated by the broker and the using agency. The ITN also required that vendors specify the number of credit hours to be given annually to DMS. Each vendor gives a certain number of credit hours at the start of each year under the contract. The state earns additional credit hours as the vendors perform transactions. DMS manages the pool of accumulated credit hours and gives them to individual agencies to use on a case-by-case basis as payment for individual projects. These credit hours are commonly allocated to pay for IMAs and BOVs that are not part of commissionable transactions. With the exception of one legislatively mandated project, DMS has never exhausted its pool of credit hours. The ITN further specified that IMAs and BOVs must be offered at no cost when performed as part of a commissionable transaction. Historically, most IMAs and BOVs are performed as part of a commissionable transaction. They have only been performed separately from a commissionable transaction a handful of times under the current contract, and many of these were still provided at no cost through the allocation of free credit hours available to the agencies. Therefore, most IMAs and BOVs to be performed under the proposed contract will likely be at no cost. The ITN states that points to be awarded under the price criterion will be awarded based on the number of annual credit hours offered and the commission rate paid per transaction per hour of commission received. The ITN further provides that DMS will evaluate and rank replies in order to establish a competitive range of replies reasonably susceptible to award, and then the team will proceed to negotiations. Regarding negotiations, the ITN states: The focus of the negotiations will be on achieving the solution that provides the best value to the state based upon the selection criteria and the requirements of this solicitation. The selection criteria include, but are not limited to, the Respondent’s demonstrated ability to effectively provide the services, technical proposal and price. The Department reserves the right to utilize subject matter experts, subject matter advisors and multi-agency or legislative advisors to assist the negotiation team with finalizing the section criteria. The negotiation process will also include negotiation of the terms and conditions of the Contract. The ITN also states: At the conclusion of negotiations, the Department will issue a written request for best and final offer(s) (BAFOs) to one or more of the Respondents with which the negotiation team has conducted negotiations. At a minimum, based upon the negotiation process, the BAFOs must contain: A revised Statement of Work; All negotiated terms and conditions to be included in Contract; and A final cost offer. The Respondent’s BAFO will be delivered to the negotiation team for review. Thereafter, the negotiation team will meet in a public meeting to determine which offer constitutes the best value to the state based upon the selection criteria. The Department does not anticipate reopening negotiations after receiving BAFOs, but reserves the right to do so if it believes doing so will be in the best interests of the State. The ITN and draft contract permit subcontractors to perform under the contract and provide an avenue for a contractor to add subcontractors by submitting a written request to DMS’s contract manager with particular information. Best and Final Offers After the conclusion of negotiations, the negotiation team requested each vendor to submit a BAFO, to be filled out in accordance with the RBAFO format. The RBAFO noted that each vendor would get a set percentage commission for leasing transactions, but asked vendors to submit their prices for IMAs, BOVs, and BPOs performed outside a commissionable transaction and to submit the number of annual credit hours vendors would give DMS at the start of the new contract. In an effort to increase potential savings to the state, DMS lowered the percentage rates of the commissions for lease transactions in the RBAFO below the rates initially set in the ITN. By selecting only two vendors instead of three, the additional potential volume for each vendor on the contract could support the lower commission rates being requested of tenant brokers. The state would ultimately save money due to the impact of the reduced commissions on the overall economic structure of each lease. Beth Sparkman, Bureau Chief of Leasing of DMS, expounded on the rationale for reducing the number of vendors under the new contract to two: The Court: To me, it’s counterintuitive that having fewer vendors would result in more favorable pricing for the state of Florida; and yet you said that was the anticipated result of reducing the number of vendors from three to two – The Witness: Correct. The Court: -- for the new contract. I’m unclear. Tell me the basis for the team’s anticipation that having fewer vendors would result in better pricing. The Witness: When the original ITN was released, it had the same percentages in there that are under the current contract. And I’ll talk, for context, new leases, which right now is at 4 percent. So the discussion was – and 4 percent is typical of the industry. That’s typical for what the industry pays across the board. So the desire was to reduce the commission, to reduce those commission amounts to drive that percentage down. So we went out with the first BAFO that had a range that said for leases that cost between zero – and I can’t remember – zero and a half million, what would your percentage be? Thinking that when we had a tiered arrangement, those percentages would come down. They really didn’t. So when we sat down as a team and discussed: Well, why didn’t they – and you know, because typical is 4 percent. So we came back and said: Well, if we reduce the percentage on new leases to 3.25 but restrict the reward to two vendors, each vendor has the potential to make as much money as they would have made at 4 percent, but the savings would be rolled back into the state. Each of the five vendors invited to negotiate submitted a BAFO, agreeing as part of their submissions to comply with the terms and conditions of the draft of the proposed contract and agreeing to the lowered set percentage commission rates in the RBAFO. The RBAFO listed selection criteria by which the vendors would be chosen, to further refine the broad criteria listed in the ITN. The RBAFO listed the following nine items as selection criteria: performance measures (if necessary), sliding scale/cap, IMA set fee, broker’s opinion of value, balance of line (can be quoted per hour or lump sum), contract concerns, credit hours (both annual and per deal hour), hourly rates, and vendor experience and capability. CBRE’s BAFO submission followed the format indicated in the RBAFO, but CBRE included an additional section giving its proposed commission rates for acquisitions and dispositions of land. These rates were also submitted by other vendors at other parts of the procurement process, but CBRE was the only vendor to include such rates as part of its BAFO submission. DMS considered this addition a minor irregularity that it waived. In its BAFO submission, Cushman offered a three-tiered approach to its pricing for IMAs and BOVs. For the first tier, Cushman offered to perform IMAs and BOVs for free as part of a commissionable transaction. This is redundant, as the ITN required all vendors to perform IMAs and BOVs at no cost when part of a commissionable transaction. For the second tier, Cushman offered to perform IMAs and BOVs at no cost when the user agency has previously hired Cushman on tenant representative work. Ms. Sparkman testified that this provision was unclear, as Cushman did not define the scope of this provision or what amount of work qualified the agency for free services. For the third tier, Cushman offered to perform IMAs and BOVs for $240 when not part of a commissionable transaction for an agency with which it had never done business. Best Value Determination The five BAFOs were sent to the negotiation team for review on August 8, 2013, and on August 14, 2013, the team met in a public meeting to discuss the BAFOs, consider the selection criteria, discuss the team’s award recommendation, and draft a written award recommendation memorandum. During the August 14, 2013, meeting the team determined that CBRE and Vertical represented the best value to the state, by a majority vote for CBRE and by a unanimous vote for Vertical. Ms. Sparkman stated at the meeting that, from her perspective, CBRE and Vertical represented a better value than the other vendors because they were more forward thinking in their long term business strategies for managing Florida’s portfolio. Also at this meeting, Ms. Sparkman noted that CBRE’s prices for IMAs and BOVs were somewhat high but that she would attempt to convince CBRE to lower its prices during the contract execution phase. This was part of an attempt to equalize costs to ensure user agencies selected vendors based on individual needs rather than cost. However, CBRE represented the best value to the state regardless of whether its pricing changed. At hearing, Ms. Sparkman testified that if CBRE had refused to lower its pricing, DMS would still have signed a contract with them based on the pricing submitted in its BAFO. Ms. Sparkman also stated at the public meeting that if she were unable to come to contract with both CBRE and Vertical, she would arrange for another public meeting to select a third vendor with whom to proceed to the contract execution phase. This statement did not refer to DMS selecting a third vendor to replace CBRE should CBRE refuse to lower its price, but rather reflected the possibility that during the contract execution phase, DMS and either one of the vendors could potentially be unable to sign a contract because the vendor was unwilling to execute the written terms and conditions. The “contract negotiations” referenced during the public meeting are the remaining processes to be worked out during the contract execution phase and are distinct and separate from the negotiation phase. At hearing, Ms. Sparkman testified that in the past, vendors have refused to sign a contract because their legal counsel was unwilling to sign off on what the business representatives agreed to. Thus, if either CBRE or Vertical refused to sign the contract altogether, DMS would potentially have selected a third-place vendor in order to have a second vendor on the contract, according to Ms. Sparkman. International experience weighed in favor of CBRE and Vertical, according to team member comments made at the public meeting. Although the phrase “international experience” was not specifically listed in the selection criteria of the ITN or RBAFO, many vendors highlighted their international experience as part of the general category of vendor experience. Vendor experience and capability is specified in both the ITN and RBAFO as part of the selection criteria. Ms. Sparkman testified that international experience is indicative of high quality general vendor experience because international real estate market trends change more rapidly than domestic market trends. None of the negotiation team members recommended Cushman for a contract award, and in fact, Cushman's name was not even discussed at the award meeting. The Award Memorandum Also during the August 14, 2013, public meeting the negotiation team prepared a memorandum setting forth the negotiation team’s best value recommendation of CBRE and Vertical, and many of its reasons for the recommendation. There was no requirement that the memorandum list every single reason that went into the decision. For example, the memorandum did not state that the team found CBRE and Vertical’s focus on long term strategies more impressive than Cushman’s focus on past performance under the current contract. The award memorandum included a “Selection Criteria” section which simply repeated the nine selection criteria that had been previously identified in the RBAFO. The memorandum then went on to include a section labeled “B. Technical Analysis” that stated: Analysis of pricing is provided in section C below. As to the remaining selection criteria items, the Team identified the following key elements for the service to be provided: Long term strategies Key performance indicators Management of the portfolio Top ranked vendors had comprehensive business plans Pricing on the BOV and IMAs. The selection criteria provided above were used by the Team to make its best value recommendation. Ms. Sparkman testified that while the choice of wording may have been imprecise, the items listed in the Technical Analysis section were simply elaborations of the selection criteria in the ITN and RBAFO, and not new criteria. The first four are subsumed within vendor experience and capability, and the fifth was specifically listed in the RBAFO. Indeed, Cushman’s Senior Managing Director testified at hearing that Cushman had addressed the first four items in their presentation to DMS during the negotiation phase to demonstrate why Cushman should be chosen for the contract. The memorandum failed to note that CBRE had included non-solicited information in its BAFO regarding proposed rates for the acquisition and disposition of land. However, the negotiation team considered CBRE’s inclusion of these proposed rates a minor irregularity that could be waived in accordance with the ITN and addressed in the contract execution phase, since those rates were for ancillary services, and there was no guaranteed work to be done for DEP under that fee structure. The memorandum included a chart, identified as Attachment B, that compared the proposed number of credit hours and some of the pricing for IMAs and BOVs submitted by the vendors in their BAFOs. The chart listed Cushman’s price for IMAs and BOVs as $240 and failed to include all the information regarding the three-tiered approach to IMAs and BOVs Cushman listed in its BAFO. However, Ms. Sparkman testified that the chart was meant to be a side-by-side basic summary that compared similar information, not an exhaustive listing. The Cushman Protest Negotiations After Award of the Contract Cushman alleges that DMS’s selection of CBRE violates the ITN specifications because DMS selected CBRE with the intent of conducting further negotiations regarding price, which provided CBRE with an unfair advantage. Cushman further argues that the procedure of awarding to one vendor and then possibly adding another vendor if contract negotiations fail violates Florida’s statutes and the ITN. Amended Pet. ¶¶ 23, 28 & 31. Section 2.14 of the ITN specifically reserved DMS's right to reopen negotiations after receipt of BAFOs if it believed such was in the best interests of the state. Specifically, section 2.14 A. provides: The highest ranked Respondent(s) will be invited to negotiate a Contract. Respondents are cautioned to propose their best possible offers in their initial Reply as failing to do so may result in not being selected to proceed to negotiations. If necessary, the Department will request revisions to the approach submitted by the top-rated Respondent(s) until it is satisfied that the contract model will serve the state’s needs and is determined to provide the best value to the state. The statements made by Ms. Sparkman at the August 14, 2013, public meeting and in the award memorandum, that DMS would attempt to reduce CBRE's prices for ancillary services during the contract execution process were not contrary to the ITN or unfair to the other vendors. Both Ms. Sparkman and Mr. Bradner, the two negotiation team members who voted to award to CBRE, testified that they recommended CBRE as providing the best value even considering its arguably higher prices for ancillary services. Ms. Sparkman further confirmed that even if CBRE refused to lower its prices during the contract execution phase, DMS would still sign the contract, as CBRE's proposal would still represent the best value to the state. The anticipated efforts to obtain lower prices from CBRE were simply an attempt to obtain an even better best value for the state. Ms. Sparkman also testified that section 2.14 F. allowed continued negotiations, even though it was silent as to timeframe. Paragraph F states: In submitting a Reply a Respondent agrees to be bound to the terms of Section 5 – General Contract Conditions (PUR 1000) and Section 4 – Special Contract Conditions. Respondents should assume those terms will apply to the final contract, but the Department reserves the right to negotiate different terms and related price adjustments if the Department determines that it provides the best value to the state. Ms. Sparkman also cited section 2.14 I. as authority for reopening negotiations following receipt of the BAFO’s. That section provides: The Department does not anticipate reopening negotiations after receiving the BAFOs, but reserves the right to do so if it believes doing so will be in the best interests of the state. Ms. Sparkman’s statement that if DMS failed, for any reason, to successfully contract with either of the two vendors selected, it would consider pulling in another vendor, is not inconsistent with the clear language of the ITN. Selection Criteria Cushman alleges that DMS used criteria to determine the awards that were not listed in the ITN or the RBAFO. Amended Pet. ¶ 25. Section 2.14 E of the ITN established broad selection criteria, stating: The focus of the negotiations will be on achieving the solution that provides the best value to the state based upon the selection criteria and the requirements of this solicitation. The selection criteria include, but are not limited to, the Respondent's demonstrated ability to effectively provide the services, technical proposal and price. The Department reserves the right to utilize subject matter experts, subject matter advisors and multi-agency or legislative advisors to assist the negotiation team with finalizing the selection criteria. The negotiation process will also include negotiation of the terms and conditions of the Contract. (emphasis added). Following the negotiations, and with the assistance of its subject matter expert, the negotiation team provided in the RBAFO additional clarity as to the selection criteria, and identified the "Basis of Award/Selection Criteria" as follows: Performance Measures (if necessary) Sliding scale/cap IMA set fee Broker's opinion of value Balance of line (can be quoted per hour or lump sum) Contract concerns Credit hours (both annual and per deal hour) Hourly rates Vendor experience and capability The foregoing selection criteria, as well as the selection criteria stated initially in the ITN, make clear that pricing was only one of the criteria upon which the award was to be made. Indeed, Cushman's representative, Larry Richey, acknowledged during his testimony that criteria such as "Performance Measures," "Contract Concerns," and "Vendor Experience and Capability" did not refer to pricing, but rather to the expected quality of the vendor's performance if awarded the contract. As the principal draftsman of the ITN and DMS's lead negotiator, Ms. Sparkman explained that the RBAFO's statement of the selection criteria was intended to provide greater detail to the broad selection criteria identified in the ITN, and was used by the negotiation team in making its best value determination. Ms. Sparkman further testified that the best value determination resulted from the negotiation team's lengthy and extensive evaluation of the vendors' initial written replies to the ITN, review of the vendors' qualifications and comprehensive business plans, participation in approximately two and a half hours of oral presentations by each vendor (including a question and answer session with regard to the proposed implementation and management of the contracts), and a review of the vendors' BAFOs. Applying the selection criteria contained in the ITN and the RBAFO, the negotiation team selected Vertical for several reasons, including its performance indicators, employees with ADA certification, computer programs and employee training not offered by other vendors, its presence in Florida, and the strength of its business plan and presentation. Similarly, the negotiation team selected CBRE for an award based on the strength of its ITN Reply, its broad look at long-term strategies, its key performance indicators, the experience and knowledge of its staff, the comprehensiveness of its proposal and business plan, size of its firm, and creative ideas such as use of a scorecard in transactions. Ms. Sparkman observed that both Vertical and CBRE specifically identified the CBRE staff who would manage the state's business and daily transactions, while it was not clear from Cushman's ITN reply and related submissions who would actually be working on the account. Cushman likewise did not discuss out-of-state leases and how such leases were going to be handled, which was a significant concern because DMS considered out-of-state leases to be particularly complex. Ms. Sparkman also noted that with respect to the vendors' business plans, both Vertical and CBRE focused primarily on strategic realignment and plans for the future, whereas Cushman discussed their current transactions at length, but did not demonstrate forward thinking to the negotiation team. Cushman's reply to the ITN also included various discrepancies noted at the final hearing. While Cushman's ITN reply identifies a Tallahassee office, Cushman does not in fact have a Tallahassee office, but instead listed its subcontractor’s office.6/ Additionally, two of the business references presented in Cushman's ITN Reply appear not in fact to be for Cushman, but instead for its subcontractor, Daniel Wagnon, as Cushman's name was clearly typed in above Mr. Wagnon's name after the references were written. Finally, Cushman failed to provide in its ITN Reply the required subcontractor disclosure information for at least one of its "Project Management Partners," Ajax Construction. Based on all of the above, DMS's decision to award contracts to Vertical and CBRE as providing the best value to the state was not arbitrary, capricious, clearly erroneous, or contrary to competition. Simply stated, and as the negotiation team determined, the submissions by Vertical and CBRE were more comprehensive and reasonably found to offer better value to the state than Cushman's submission. Indeed the negotiation team did not even mention Cushman as a potential contract awardee, but instead identified only Vertical, CBRE and JLL in their deliberations as to best value. Cushman's argument that DMS award memorandum improperly relies on the following as "key elements" related to services does not alter this analysis: Long term strategies Key performance indicators Management of the portfolio Top ranked vendors had comprehensive business plans Pricing on the BOV and IMAs. While Ms. Sparkman acknowledged that the choice of language in the memorandum could have been better, it is clear that the foregoing are indeed "elements" of the selection criteria stated in the ITN and RBAFO, as the first four elements plainly relate to the vendors' ability to effectively provide the services, their technical proposal, performance measures, and vendor experience and capability, while the last element relates to the pricing portion of the criteria. Cushman also argues that the award memorandum failed to inform the final decision-maker that Cushman offered IMAs and BOVs at no charge when Cushman was engaged in a commissionable transaction or was performing other work for an agency under the contract. As a result, Cushman asserts, the Deputy Secretary was provided with inaccurate information relating to price. Cushman's argument that the award process was flawed because the pricing chart attached to the award memorandum did not accurately reflect Cushman's proposed pricing is without merit. As Ms. Sparkman testified, the chart was prepared by the negotiation team to provide for the decision-maker an apples-to- apples broad summary comparison of the vendor's proposed pricing for the proposed ancillary services. The chart was not intended to identify all variations or conditions for potential different pricing as proposed by Cushman.7/ Best Value Determination Cushman contends that the negotiation team’s decision to award a contract to CBRE did not result in the best value to the state. Amended Pet. ¶¶ 26, 28 & 29. Cushman further argues that DMS did not meaningfully consider differences in proposed pricing. The failure to consider price for potential ancillary services, Cushman argues, was contrary to competition as it gave an unfair advantage to CBRE whose prices were higher than Cushman’s prices in all but one category. Although pricing for the potential ancillary services was relevant, the ITN's initial scoring criteria made clear that DMS was primarily focused on evaluating the experience and capability of the vendors to provide the proposed services. For this reason, the ITN's initial scoring criteria awarded 90 percent of the points based upon the qualifications and business plan of the vendors, and only 10 percent of the points based on the pricing for potential ancillary services. The negotiation team members testified that this same focus on qualifications and the vendors' business plan continued during the negotiation phase and award decision, although without reliance on the mathematical scoring process utilized during the initial evaluation phase. Nothing in the ITN specifications altered this focus, and the negotiations were directed to gaining a greater understanding of the vendors' proposed services, the qualifications and bios of individuals who would actually do the work, vendors' approach to the work and parameters the vendors would use to evaluate their performance. Pricing remained of relatively minor significance primarily because the RBAFO established a uniform lease commission rate for all vendors, effectively removing pricing as a means to differentiate between the vendors. As a result, vendors were required to quote pricing only for certain potential ancillary services, including IMAs and BOVs, and the number of free credit hours to be provided to the state. Pricing for these potential ancillary services was not considered particularly important, since historically these services were seldom used, and the ITN required all vendors to provide IMAs and BOVs free of charge when related to a commissionable transaction (thereby greatly reducing the impact of any "free" IMA or BOV services). For these reasons, the negotiation team considered the potential ancillary services and pricing for these services not to be significant in the award decision and only incidental to the core purpose and mission of the intended contract, to wit, leasing and leasing commissions. As a result, the negotiation team referred to these potential ancillary services as "balance of line" items which were nominal and added little value to the contract. Notwithstanding Cushman's argument that it should have been awarded the contract because it offered the lowest pricing for these ancillary services, its prices were not in fact the lowest offered by the vendors. Indeed JLL offered to provide all IMA and BOV services (with no preconditions) at no cost. Cushman's pricing for the ancillary services also was not materially different than CBRE's pricing. CBRE's consulting services rates are comparable, if not lower, than Cushman's rates, and the difference between Cushman's and CBRE's proposed charges for IMAs and BOVs is only a few hundred dollars. When considered in terms of the anticipated number of times the ancillary services will be requested (rarely, based on the prior contract), the total "extra" amount to be spent for CBRE's services would be at most a few thousand dollars. The negotiation team reasonably considered this to be insignificant in comparison to the multimillion dollar leasing work which was the core purpose of the intended contract.8/ Because pricing for the potential ancillary services was of lesser significance to DMS's award decision, Cushman's position that DMS should have awarded Cushman a contract based upon its pricing for ancillary services is not consistent with the ITN and does not render DMS's intended awards to Vertical and CBRE arbitrary, capricious, clearly erroneous or contrary to competition. To the contrary, DMS articulated a rational, reasonable and logical explanation for the award. CBRE’s Proposal Non-Responsive to ITN and RBAFO? Cushman alleges that CBRE’s BAFO was not responsive to the ITN and the RBAFO because CBRE included a set rate for acquisitions and dispositions in its proposal. Amended Pet. 30. Since CBRE's BAFO materially deviated from the ITN's specifications, CBRE’s proposal should have been deemed non- responsive and therefore rejected, Cushman argues. The ITN originally requested pricing related only to credit hours as the ITN set the rates for leases. The ITN stated that “other services” would be determined on a case-by- case basis as negotiated by the agencies. However, as part of the ITN process, DMS discussed with the vendors the potential for them to assist the state in the sale and acquisition of property, and what commission rates might be charged for this work. For this reason, CBRE included proposed commission rates for acquisition and disposition services in its BAFO. DMS considered the inclusion of potential rates for acquisitions and dispositions to be a minor irregularity which did not render CBRE's BAFO non-responsive. This determination is consistent with the terms of the ITN, which at section 2.14(g) states "[t]he Department reserves the right to waive minor irregularities in replies." The form PUR 1001 incorporated by reference into the ITN likewise reserves to DMS the right to waive minor irregularities and states: 16. Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the state's best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents. Consistent with the above-cited provisions, the negotiation team noted at its August 14, 2013, meeting that CBRE's inclusion of the proposed rates was not material, and that during the contract execution process, DMS would either exclude the proposed rates from the contract, or possibly include such as a cap for these services. Both of these alternatives were available to DMS given CBRE's commitment to follow the terms of the draft contract, which specifically stated that fees for acquisitions and dispositions would be negotiated on a case-by-case basis. Finally, CBRE's inclusion of proposed commission rates for acquisitions and dispositions did not give CBRE an advantage over the other vendors, or impair the competition, because Cushman and JLL also submitted, as part of their ITN responses, proposed commission rates for the acquisition and disposition of property. Do the ITN Specifications Violate Section 255.25? Cushman's final argument is that the ITN specifications, and the proposed contract, violate section 255.25(3)(h)5., Florida Statutes, which states that "[a]ll terms relating to the compensation of the real estate consultant or tenant broker shall be specified in the term contract and may not be supplemented or modified by the state agency using the contract." Cushman's argument has two components. First, Cushman argues that the specifications included at Tab 5, page 13 of the ITN violate the statute by providing: "With respect to all other [ancillary] services, . . . , compensation shall be as outlined in an agency prepared Scope of Work and will be quoted based on an hourly rate (set as ceiling rates in this ITN), set fees for the service/project or by a percentage commission rate as offered and negotiated by the using agency.” Cushman also argues that the language in the award memorandum stating that the BOV rates are "caps" and "may be negotiated down by agencies prior to individual transactions," violates the statute. This latter reference to "caps" correlates to the "ceiling rates" stated in the above quoted ITN specification. Section 120.57(3)(b), Florida Statutes, requires vendors to file a protest to an ITN’s terms, conditions, or specifications within 72 hours of the release of the ITN or amendment; failure to protest constitutes a waiver of such arguments. DMS included this language with the release of the ITN and each amendment, so Cushman was on notice of its protest rights. Cushman's challenge to the ITN specifications as violating section 255.25 is untimely and has been waived. Having been fully informed of this specification since May 14, 2013, when the revised ITN was published, Cushman could not wait until the ITN process was completed some four months later, and then argue that the ITN specifications do not comply with section 255.25 and must be changed. Such argument plainly constitutes a specifications challenge, and such a challenge is now time-barred. Even were Cushman’s challenge not time-barred, it would still fail. Section 255.25 requires only that "[a]ll terms relating to the compensation of the real estate consultant or tenant broker shall be specified in the term contract," and not that all terms identifying the compensation be specified. The challenged ITN specification, actually added via Addendum 2 at the request of DEP and its subject matter expert, does specify the approved methods by which the state could compensate the vendor, which DMS determined would best be determined on a case-by-case basis. By stating the approved methods which can be used by the state agencies, the ITN specifications and term contract did specify the terms "relating to" the compensation of the vendor, i.e., an hourly rate (set as ceiling rates in the ITN), set fees for the service/project, or a percentage commission rate. DMS established these terms because the exact compensation would best be determined by the state agency on a case-by-case basis in a Statement of Work utilizing one of the specified compensation methods.9/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered denying the petition of Cushman & Wakefield of Florida, Inc., and affirming the Notice of Intent to Award to CBRE, Inc., and Vertical Integration, Inc. DONE AND ENTERED this 24th day of January, 2014, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2014.
The Issue Whether Respondent, Andrey Barhatkov, committed the violations alleged in the Administrative Complaint, and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is, and was at all times material hereto, a licensed Florida real estate sales associate issued License No. 660647 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was as a sales associate with All American Realty, Inc., 227 North John Young Parkway, Kissimmee, Florida 34741. On or about July 5, 2005, Respondent prepared a residential sale and purchase contract on behalf of a buyer and faxed the contract to Jerome Fortson, who is not a licensed Florida real estate sales associate, broker associate, or broker, for Mr. Fortson to present to the buyer and obtain the buyer's signature. Having obtained the buyer's signature, Mr. Fortson later appeared on behalf of the buyer at the closing. Respondent was not present at the closing. Respondent admitted that he had Mr. Fortson show the real estate property to the buyer, that he had an arrangement with Mr. Fortson to show properties for him, and that Mr. Fortson was to report back to him for follow-up. Respondent acknowledged that Mr. Fortson was a mortgage broker and that they had an informal business referral agreement wherein Mr. Fortson would arrange financing for buyers that he had shown properties. In the course of this activity, Mr. Fortson, who represented himself as a sales representative for the buyer, contacted the listing agent for information regarding the property and showed the property. Respondent never met the buyer. The real estate agent representing the seller was not aware of Respondent's involvement in the transaction until he requested his share of the commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Real Estate, enter a final order finding that: (1) Respondent, Andrey Barhatkov, violated Subsections 455.227(1)(j) and 475.42(1)(e), Florida Statutes; Respondent's license as a real estate salesperson be suspended for one year, followed by one year of probation; Respondent be fined $2,000; (4) Respondent be required to attend such remedial ethics and educational courses as are determined appropriate by Petitioner; and (5) Respondent be required to pay the costs of the investigation and prosecution of this case. DONE AND ENTERED this 25th day of June, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2009. COPIES FURNISHED: Thomas W. O'Bryant, Jr., Director Division on Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building, Suite N802 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Andrey Barhatkov 408 Pinewood Drive Davenport, Florida 33896 Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building, Suite N801 Orlando, Florida 32801
The Issue The issue in this case is whether Petitioner's real estate broker's license application should be approved or denied.
Findings Of Fact Petitioner, Rhonda S. Dietz, is a 36-year-old woman who currently holds a real estate sales associate's license. She was first licensed by the State of Florida in December 2001 and has held her license in good standing since that time. At the time Petitioner obtained her sales associate license, she disclosed in her application that she had a criminal background. That background included two grand larcenies, possession of a controlled substance, failure to appear, violation of probation, and obtaining property with a worthless check. Each of the offenses will be further discussed below. Despite the criminal history, Respondent approved Petitioner's sales associate's license, and Petitioner has been selling real estate for the past six years. In 2006, Petitioner first applied for a real estate broker's license. Petitioner maintains that in her 2006 application, she disclosed each of the aforementioned events in her criminal history.1 Nonetheless, her application was denied. In May 2007, Petitioner again filed an application for a real estate broker's license. That application clearly contained documentary evidence of her entire criminal history. The events in that history are hereby discussed: The first grand larceny in Petitioner's background was related to the purchase of goods from a K-Mart in 1994 with a bad check belonging to a roommate. Upon discovering the check was bad, Petitioner immediately turned herself in, made restitution, and paid court costs. She was sentenced to five years' probation for that charge. The second grand larceny involved allegations in 1994 by Petitioner's then-current roommates that Petitioner stole property from them when she moved out of the residence. Although Petitioner denied the charge because the claim was merely retaliation by her roommates for moving out, she agreed to a plea bargain at the advice of counsel. Again, she was given five years' probation and made to pay restitution. In 1998, Petitioner was charged with possession of a controlled substance: a vial of testosterone and some pain pills. She explained that these drugs came from a pharmacy where she was working. The pharmacy specialized in treatment of AIDS patients. She had the drugs in her possession so she could turn them over to a medical group that could disperse them to AIDS patients. The pharmacy supported Petitioner and paid for her defense against the possession charge. Petitioner was sentenced to 24 months' probation, court costs, and 50 hours of community service for that charge. Petitioner also had a probation violation in 1998 for failing to appear and for failing to pay a fine related to one of the aforementioned charges. She did not pay the fine due to lack of funds. She failed to appear due to lack of notice. She was placed on ten months' house arrest for the violation of probation. Petitioner met all other conditions of her probation and has not had any criminal activity since the charges listed above. She does not deny the existence of her prior criminal history and has not attempted to hide it from Respondent. When Petitioner applied for a broker's license in 2005, she filed an application that included her criminal history. The application disclosed all of the charges addressed above. Respondent confirmed the charges by referring to a Florida Department of Law Enforcement (FDLE) report. When Petitioner re-applied in 2007, she personally obtained a FDLE report on her criminal background, which she submitted along with her application. Again, she listed all of her prior history in the application. There is no competent evidence to suggest otherwise. Since the time of her last criminal charge, Petitioner has been gainfully employed. She has worked in an office doing medical billing, in a pharmacy, and as a real estate agent. In her current position, she has been entrusted with large sums of money for clients. She has had no adverse employment actions taken against her. Her co-workers state that she has good moral character and is trustworthy. Petitioner has passed the classroom work needed to become a broker; her application for licensure will complete that process. Meanwhile, she continues to sell real estate and is involved in an investor monitoring program. The broker's license will simply allow Petitioner to make a career move by expanding her capabilities in the area of real estate sales. Respondent did not call any witnesses at the final hearing and did not refute or rebut the facts as stated by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission granting Petitioner's application for a real estate broker's license. DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2007.
The Issue The issue presented is whether Petitioner's application for licensure as a real estate salesperson should be granted.
Findings Of Fact On July 14, 1989, a Final Judgment was entered in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, against Petitioner and in favor of Kandace Dimas, the Plaintiff in that action. That Final Judgment contained specific findings that Petitioner had acted as a mortgage broker without a license in a transaction which "was infested with usury." That Final Judgment awarded to the Plaintiff the sum of $29,700, together with interest at the rate of 12 percent. A Supplemental Final Judgment was entered against Petitioner on August 24, 1989, requiring Petitioner to pay the Plaintiff an additional sum of $7,728.90 to reimburse her for her attorney's fees and costs. Because Petitioner was a real estate broker licensed in the State of Florida at the time, the matter, and those final judgments, were brought to the attention of the Florida Real Estate Commission. On February 20, 1990, the probable cause panel of the Commission determined that probable cause existed, and an Administrative Complaint against Petitioner was issued by the Department of Professional Regulation on February 22, 1990, alleging that Petitioner had also violated the law regulating his conduct as a licensed real estate broker by his conduct in the mortgage transaction involving Kandace Dimas. In order to resolve the issues raised in that Administrative Complaint, Petitioner and the Department of Professional Regulation entered into a Stipulation whereby Petitioner neither admitted nor denied the facts contained in the Administrative Complaint but agreed that the Commission should take the following disciplinary action against him: 7. The [Petitioner] shall be reprimanded, pay restitution in the amount of $5,000 and pay an administrative fine of $300, which fine shall be made payable to the Department of Professional Regulation, Division of Real Estate within thirty (30) days from the date of filing of the Final Order. [Petitioner] shall also be placed on probation for a period of 1 year at which time the [Petitioner] shall complete a 45 hour salesman's course and work only as a salesman. If any of the above conditions are not met, the [Petitioner's] license shall be revoked. The Florida Real Estate Commission approved that Stipulation in a Final Order entered March 5, 1991. Over the next year, Petitioner continued with his licensed real estate activities. He did not pay the administrative fine. Petitioner made no effort to pay the required $5,000 as restitution and made no effort to take the required 45-hour salesman's course. At the time that the Final Order approving the Stipulation was entered, Petitioner was employed at Amber Realty, Inc., d/b/a Re/Max Dynamic, and he continued his employment there until June of 1991. He then became employed by Re/Max Dovesway Realty, Inc., where he worked until January of 1992. He then returned to Amber Realty and worked there until he was terminated on October 2, 1992. While Petitioner was employed performing licensed real estate activities, he was also employed in the mortgage business. He began working as a loan originator for Paragon Mortgage Company in late 1991 and was employed there until April or May of 1993. He was terminated from that employment for several reasons, one of which was the branch manager's belief that Petitioner was also operating an outside business selling time shares out of Paragon's offices. After Paragon, Petitioner was employed by First Financial of Boston in the mortgage business until the end of 1993. He is currently employed by Pakmail Centers of America with duties described vaguely as franchise development and working with new franchise applicants. By letter dated April 24, 1992, Respondent notified Petitioner of the imminent revocation of his license as follows: You were placed on probation in 1991 and ordered to submit proof of completion of a 45 hour salesman's course before April 5, 1992. This you have failed to do. Unless I receive proof within 10 days that you complied with the Florida Real Estate Commission's order, and paid the ordered restitution, your real estate license will be revoked forthwith. Petitioner did not respond to that letter/notice within 10 days. On May 11, 1992, Respondent received from Petitioner a "written request for an extension to complete my educational requirements for probation." That correspondence made no mention of the requirement for restitution. The Commission considered Petitioner's request on June 16, 1992, and entered an Order denying it. The Order specifically recited that Petitioner's probation expired March 5, 1992, that Petitioner's request for an extension was filed more than two months after the probationary period had ended, that Petitioner had failed to comply with the terms of the Stipulation, and that Petitioner had not paid the restitution or the administrative fine although Petitioner had alleged that he had enrolled in a course. Petitioner subsequently requested that the Commission reconsider its order denying his request to extend probation. That request came before the Commission on July 21, 1992, and was denied. The Order entered August 4, 1992, concluded that Petitioner had sufficient time to comply with the terms he had agreed to, that Petitioner had chosen to not comply with the requirements of his probation until after a year had passed, and that Petitioner had stated no grounds for extending his probation. On September 1, 1992, Petitioner filed with the Florida Real Estate Commission a Notice of Appeal of the August 4, 1992, Order. On May 19, 1993, that appeal was dismissed for lack of prosecution by the Fourth District Court of Appeal. On October 2, 1992, someone advised Stan Amber, the real estate broker employing Petitioner at that time, that a notice had been published in the Florida Association of Realtors magazine that Petitioner's real estate license had been revoked. Amber looked in the magazine and verified that information. He also called the Department of Professional Regulation and again received verification. Amber terminated Petitioner's employment that day. On October 29, 1992, Petitioner filed with Respondent an application for licensure as a real estate salesperson. Section (a) of question numbered 13 reads as follows: Has any license, registration or permit to practice any regulated profession, occupation or vocation been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending? Petitioner answered that question in the affirmative. In explanation of his affirmative answer to question numbered 13 (a), Petitioner wrote the following: I entered into a stipulated agreement in 1991 with FREC wherein I was to pay a 300.00 fine serve one year as a salesman only and take a 40 hr. cont. education course I complied with all of the above except taking the 40 hour course within the 1 year probationary period. I appealed to FREC for more time to take the course and was denied. My licence was revoked. I have been working since then as loan officer for PMC Mgt. I am now completing the entire 63 hour FREC I course and would like to apply to retake the state exam and get a new salesman's lic. I was told by the Chairman of FREC after the hearing that if I did take FREC I, state exam, and reapply for a new license, then I probably would be granted that new license as I will have completed more than the original requirement of my stipulated agreement. Petitioner's explanation is not truthful since it omits mention of the requirement that he make restitution in the amount of $5,000. Between April 5, 1992, and at least October 2, 1992, Petitioner engaged in real estate activities requiring licensure although his license had been revoked. During that time, Petitioner knew that he had not complied with the conditions of his probation and that his license had been revoked. It is not certain that Petitioner has refrained from engaging in real estate activities requiring licensure since October 2, 1992. By the time of the final hearing in this cause, Petitioner had still not attempted to make restitution as required by the Stipulation accepted by Respondent on March 5, 1991. In approximately May of 1990, Petitioner gave his attorney $500 to apply toward the final judgment Kandace Dimas had obtained against Petitioner. After some time, Petitioner authorized his attorney to apply that money to the outstanding fees Petitioner owed to his attorney instead. No other attempt has been made by Petitioner either to satisfy that final judgment or to pay the restitution amount ordered by the Florida Real Estate Commission. Instead, Petitioner has attempted to avoid his obligation to Dimas by filing for bankruptcy approximately a year ago. Between June or July 1991 and January 1992, while Petitioner was employed at Re/Max Dovesway, he obtained $10,000 from the broker at that office for some investment purpose. Although Petitioner repaid some of that money, he has not repaid all of it. When attempts to collect the money from Petitioner pursuant to the final judgment he had obtained proved too stressful, that broker "cancelled" the remaining approximate $2,000 that Petitioner still owed in order to rid himself of that source of stress. Petitioner has not demonstrated that he is of good character. He is not financially responsible and has not lived up to his legal obligations. He has demonstrated an unwillingness to comply with the licensure laws of a regulated profession. Petitioner has not demonstrated rehabilitation since the revocation of his real estate license. He continued engaging in activities requiring licensure. He has still made no attempt to live up to his agreement, which became a legal requirement, to pay $5,000 in restitution. Petitioner maintains that his real estate license was revoked and his application for relicensure was denied because of one single mistake that he made in 1985 relating to Kandace Dimas. Petitioner fails to acknowledge that his license was revoked and his application for a new license denied for his own failure to comply with the conditions of probation to which he had agreed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a real estate salesperson. DONE and ENTERED this 30th day of June, 1994, at Tallahassee, Florida. Hearings 1550 LINDA M. RIGOT Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- Hearings (904) 488-9675 Filed with the Clerk of the Division of Administrative this 30th day of June, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-2115 Respondent's proposed findings of fact numbered 1-4 and 9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 5-8 and 10-21 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Edward Scott Kies, pro se 2452 Northwest 98th Lane Coral Springs, Florida 33065 Steven D. Fieldman, Esquire Assistant Attorney General Suite 107, South Tower 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller, Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
