Findings Of Fact In June 1987, petitioner, Karl T. Christiansen, was an examinee on Sections 3, 4 and 5 of the Uniform National Examination for landscape architects. He had previously passed Sections 1 and 2 in the June, 1986 examination. The test is administered by the Office of Examination Services of the Department of Professional Regulation, and licensure is granted by respondent, Board of Landscape Architects. The examination in question is a uniform multi-state examination adopted for use in Florida. The questions are prepared by the Council of Landscape Architectural Registration Boards. The same organization also prepares a comprehensive Evaluation Guide for use by graders in scoring the test. All Florida graders must be professional landscape architects with at least five years' experience. In addition, they are given training by the Office of Examination Services before grading the examination. After the examination was completed by the candidates, all examinations, including that of Christiansen, were blind-graded by the graders using the Evaluation Guide as a tool. By notice dated October 23, 1987, petitioner was advised by the Office of Examination Services that he had received the following scores on Sections 3, 4 and 5 of the examination: Design Application 84.4 PASS Design Implementation 70.8 FAIL Florida Section 76.2 PASS On December 14, 1987, petitioner was given an opportunity to meet with Board representatives in Tallahassee and present objections concerning his score on Section 4 of the examination. Because of Christiansen's concerns, the Board regraded his examination a second time and raised his overall score from 70.8 to 72.4. This was still short of the 74.5 needed for passing. After being given the results of the second grading, petitioner requested a formal hearing. At hearing petitioner lodged objections to scores received on twenty- one questions in Subparts A, B and C of Section 4 of the examination. These objections are contained in joint composite exhibit 1 received in evidence. It was Christiansen's position that the graders had used subjective standards in evaluating his solutions, and that they had failed to take a sufficient amount of time to evaluate his answers. In addition, Christiansen contended that the examiners had failed to note a number of correct answers for which he was not given credit. Other than his own testimony, petitioner did not present any other evidence to support his contentions. Indeed, his own witness, a Fort Lauderdale landscape architect with thirty years experience, concluded that the Board was correct in failing Christiansen and that Christiansen had not demonstrated adequate competence on the examination to justify a passing grade. In support of its position, respondent presented an expert, Michael Oliver, a longtime registered landscape architect with three years experience in grading this type of examination. In preparation for the hearing, Oliver reviewed the examination, instruction booklet and grader's Evaluation Guide. He then regraded petitioner's examination and assigned it a score of 73.4, which was a failing grade. In doing so, Oliver assigned higher scores than did the previous two graders to certain questions but lower scores to others, for an overall average of 73.4. Through a detailed analysis, Oliver pointed out the infirmities in each of Christiansen's objections and why an overall failing grade was appropriate. It was demonstrated by a preponderance of evidence that, where petitioner had not received the desired grade, he had misinterpreted the instructions, prepared unsafe designs, failed to satisfy all criteria, or gave incorrect answers. Therefore, petitioner's grade should not be changed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Board denying petitioner's request to receive a passing grade on section 4 of the June, 1987 landscape architecture examination. DONE AND ORDERED this 23rd day of May, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1988.
The Issue The issue is whether the City of Winter Springs' (City's) plan amendment adopted by Ordinance No. 2005-29 on June 12, 2006, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City was incorporated in 1959 and is located just inside Seminole County in a highly developed area surrounded by the City of Oviedo to its east, the City of Casselberry to the south, the City of Longwood to the west, Lake Jesup to the north, and the City of Orlando a few miles to the southwest. The City adopted the amendment in question. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the City. Keewin is a Florida corporation and has a contract to purchase the property that is the subject of the challenged plan amendment. It offered comments in support of the plan amendment during the adoption process. The Association is a Florida Homeowners Association operating as a not-for-profit corporation under Section 720.301, Florida Statutes. It currently comprises approximately 1,378 residential units on 550 acres within the City, including single-family attached and detached dwellings, apartments, and condominiums. The Association is made up of nineteen separate subassociations of residents; however, the Association serves as the "master association." One of the subassociations (Greens Point) lies "a stone's throw" to the east from the subject property, while the others lie further east, separated from the subject property by another residential subdivision known as Wildwood (which is not a part of the Association). Wildwood has a MDR land use category, which is the same land use being sought for the Keewin property. Besides five miles of nature trails, the Association also owns and maintains five parks, a tennis facility, a pool, and a clubhouse. A representative of the Association offered comments, recommendations, or objections to the City during the adoption of the amendment. As a property owner within the City who submitted objections to the plan amendment during its adoption process, the Association meets the definition of an affected person under Section 163.3184(1)(a), Florida Statutes, and accordingly has standing. As discussed below, however, the City and Intervenor (but not the Department) argue that the Association still lacks standing because its Board of Directors never authorized the filing of the initial Petition in this matter. Background In 2005 the City began consideration of an application by Keewin (on behalf of the current owner, Dittmer Properties, Inc.) to change the land use on the 47.7-acre tract of property. The land use change was also accompanied by a proposed change in the zoning of the property; however, that matter is not of concern here. The amendment was initially considered and approved by the City Commission at a meeting conducted on February 13, 2006. An amendment transmittal package was then sent to the Department for its review. After the Department issued an Objections, Recommendations, and Comments Report (ORC Report) on April 20, 2006, which noted four specific objections to the map change, the City provided further information to the Department to resolve these concerns. On June 12, 2006, the City voted to adopt Ordinance No. 2005-29, which approved the map change in issue. On August 4, 2006, the Department published in the Seminole County Edition of the Orlando Sentinel its Notice of Intent to Find the City of Winter Springs Comprehensive Plan Amendment in Compliance. Sometime in September 2006, the Association filed its initial Petition for a hearing to contest the plan amendment. The Petition was apparently dismissed without prejudice by the Department, with leave to file an amended petition. On September 25, 2006, the Association filed its Amended Petition raising the following objections: the new land use would be incompatible with the surrounding land uses; the land use change "further erodes" the City's ability to meet the requirements in its Plan for industrial uses; the amendment will have a "negative overcrowding impact on schools, particularly Highlands Elementary"; the amendment will cause overcrowding of the nearby roadways; the amendment will negatively impact the City's level of service standards for recreational facilities; and the amendment conflicts with various provisions within Florida Administrative Code Rule Chapter 9J-5 and Section 163.3177, Florida Statutes. Authorization by the Board of Directors Citing various provisions within the Articles of Incorporation and the By-Laws, and the sometimes conflicting testimony of two members of the Association's Board of Directors, the City and Intervenor have argued extensively in their Joint Proposed Recommended Order that the Association's Board of Directors did not formally authorize its outside counsel to file the initial Petition in this matter. They point out that under the By-Laws, in order for the Board of Directors to initiate a legal action, as it did here, prior to the filing of a petition, it must have either had a vote of the majority of the Directors at a meeting at which a quorum was present or consent in writing by all members of the Board of Directors. See Art. VI, §§ 6.5 and 6.8, By-Laws. They further contend that the president of the Board of Directors, Paige N. Hinton, had no authority, as she assumed she did here, to advise another member of the Board of Directors, Helga R. Schwarz, that Ms. Schwarz could authorize outside counsel to file a petition with the Department. The affairs of the Association are managed by a Board of Directors made up of seven members. See Art. V, § 5.1, By- Laws. When this matter arose, Ms. Hinton served as president of the Board of Directors while Ms. Schwarz served as its secretary and a member. Both testified at the final hearing. When the plan amendment was first being processed and considered by the City in its early stages, a number of Association residents approached members of the Board of Directors and voiced their concerns with the proposal. Based upon those concerns, the Board of Directors held a special meeting on January 13, 2006, to discuss the issue. All seven directors were present at the meeting. A copy of the minutes of that meeting has been received in evidence as Respondents' Exhibit 3. The minutes are normally prepared by Bonnie J. Whidden, a full-time employee who serves as property manager, and "are not required to be detailed." After preparation by Ms. Whidden, the minutes are then reviewed at the following month's meeting and approved for form. There is no indication in the record that the Board of Director's outside counsel attended the meeting in question. The minutes reflect that the following action was taken at that meeting: The Board discussed the implications facing The Highlands if the Dittmer parcel were to be rezoned from light industrial to medium density residential as proposed by Keewin Real Property. Discussion ensued on impacts to The Highlands' recreational amenities, neighborhood roads, school capacities, and other concerns. The Board agreed that the proposed change in zoning was not in the best interest of The Highlands. The Board agreed to hold a community town hall meeting on the Keewin Large Scale Plan Amendment for The Highlands' residents in order to provide residents with information and to seek their input and feedback prior to the public hearing. The Board discussed committing funds for Clayton & McCulloh's legal services to represent The Highlands' interests on this issue. A motion was made to empower Ms. Schwarz to work with Clayton & McCulloh on this matter and to represent the Association at any city meeting related to the Dittmer rezoning. The motion was seconded and passed unanimously. Discussion ensued regarding having Clayton & McCulloh represent the Association at the city's public hearing on February 13, 2006. Ms. Schwarz would discuss the matter with counsel and apprise Ms. Hinton. Although the minutes refer primarily to the Association's opposition to the rezoning of the property, it is fair to infer that the Board of Directors was opposed to both the rezoning of the property and a change in the land use on the FLUM. According to Ms. Hinton, the Association intended that Ms. Schwarz act as the Board of Director's "primary point of contact with Clayton & McCulloh [its outside counsel] should [the Association] need to petition the [S]tate, and also to speak on behalf of the Association at City [C]ommission meetings for the City of Winter Springs." However, authorization to file a petition with the Department was not discussed at the meeting nor voted on. This is because it would have been premature to do so at that point as the amendment had not yet even been formally considered or adopted by the City. As the minutes disclose, the Board of Directors directed that Ms. Schwarz, a long-time resident and its secretary, represent the Association "at all city meetings" and to liason with its outside counsel. Acting on those instructions, she attended the February 13, 2006, meeting of the City Commission, when the Commission voted to transmit the amendment package to the Department for its preliminary review, and the meeting on June 12, 2006, when the map change was finally approved. (She also attended several meetings of the City Planning and Zoning Board, which presumably considered the zoning change.) At least twice, Ms. Schwarz presented oral objections on behalf of the Association at City Commission meetings. On an undisclosed date before the Association's initial petition was filed, Ms. Hinton spoke with Ms. Schwarz by telephone and advised Ms. Schwarz that pursuant to the Board's decision on January 13, 2006, Ms. Schwarz should instruct its outside counsel to file a petition challenging the new amendment. This information was given to outside counsel, who presumably filed the initial Petition, which was later amended on September 25, 2006. After the January 13 meeting, the Board of Directors was given a number of "updates" concerning the status of the plan amendment throughout the adoption and Department review process, including advice that a petition had been filed by outside counsel with the Department. However, no other formal action was taken by the Board concerning this matter before the initial petition was filed in September 2006. On advice of outside counsel, on November 16, 2006, a special closed meeting of the Board of Directors was called by Ms. Hinton to discuss "pending legal matters," including ratification of the Petition that had previously been filed. One reason for calling this meeting was the fact that the issue of whether the Board of Directors had authorized the petition to be filed had just arisen during the course of discovery for the hearing. A copy of those minutes is not of record since they were not reviewed and approved until the Board of Directors held its December 2006 meeting. Although the record is somewhat confusing (due to conflicting testimony) as to what action was taken at the meeting, it is clear that the Board of Directors (of whom six were present) orally ratified the filing of the Petition by "unanimous consensus." The Amendment The amendment consists only of a change in the FLUM on the subject property from Industrial to MDR. There are no accompanying changes to the text of the Plan. The property is currently vacant, but carries an Industrial land use and PUD zoning. The land uses surrounding the subject property are industrial to the north (across Shepard Road), medium density residential (including multi-family units) to the east, industrial and low density residential to the south, and predominately industrial and commercial to the west. There are "public lands" on the southeast side of the property. Less than one thousand feet west of the subject property and running in a north-south direction is U.S. Highway 17-92, a major arterial roadway maintained by the State. (Just across that road is the City of Longwood.) Shepard Road, a two- lane collector road which runs in an east-west direction, adjoins the northern boundary of the subject property and part of the Association and eventually exits to the west into U.S. Highway 17-92 at a major intersection with a traffic signal. Petitioner's Objections Petitioner has challenged the amendment based on compatibility, need, schools, roads, recreational facilities, and alleged violations of various provisions of Florida Administrative Code Rule Chapter 9J-5 and Chapter 163, Part II, Florida Statutes. There are no challenges to the amendments based upon internal inconsistency with the City's plan, inconsistency with the East Central Florida Planning Council's Strategic Regional Policy Plan, or inconsistency with the State Comprehensive Plan. Compatibility. The Amended Petition contains allegations that the MDR designation is incompatible with surrounding land uses, and, in particular, with the Association property that is located to the east of the subject property that is designated as MDR on the FLUM. The ORC Report raised an objection regarding land use compatibility of the amendment with the industrial land use designation to the west. The concern was that the amendment was not supported by data and analysis demonstrating that the amendment was compatible with the industrial use. In response to the objection, the City set forth Plan provisions that require buffering and also provided a Development Agreement in which the developer agreed to build a buffer between the amendment site and the industrial properties to the west. By doing so, the City adequately responded to the objection by indicating that the subject property would contain a buffer to address the potential compatibility concerns with the adjoining industrial property. The MDR designation on the subject property provides a transition from the commercial and industrial uses fronting U.S. Highway 17-92 and is compatible with the MDR to the east. Thus, the MDR use on the subject property is appropriate as a transitional use between the residential to the east and the industrial and commercial properties to the west that front U.S. Highway 17-92. Based on the evidence, it is fairly debatable that the MDR land use is compatible with the industrial use to the west and the MDR to the east. Need for Industrial Lands The Amended Petition alleges that the change from Industrial to MDR "further erodes" the ability of the City to meet requirements in its plan for industrial uses. There is no Plan policy that calls for a certain number of acres of industrial property. Rather, the Plan contains an analysis of the existing industrial acreage and a projection for future acres. Looking only at the industrial land use category, the City has 170 acres, and the plan amendment reduces that number by 47 acres or approximately twenty-eight percent. However, industrial is allowed in other future land use categories besides the industrial category. Moreover, the industrial land use designation has been on the property since at least 1991, but has remained vacant. Thus, the appropriateness of the industrial designation at this location did not come to fruition. By contrast, the City's analysis indicated a need for approximately 328 additional acres of MDR land. The FLUM change on the Keewin property furthers the need for that land use. Also, as found above, the subject property is an appropriate location for the MDR because it serves as a transition, and the property had remained vacant under the industrial future land use designation since 1991. Coordination With Schools The Association has also contended that the amendment "will have a negative overcrowding impact on schools, particularly Highlands Elementary," which lies just north of Shepard Road and serves the Association residents. Unless elected by local option, local governments are not required to have a school facilities element in their comprehensive plans at this time, are not required to have a level of service (LOS) standard in their plan for school facilities, and are not required to implement school concurrency. The City has not elected the local option of school concurrency. At this time, the Department requires only coordination of the plan amendment with the Seminole County School Board (School Board) so that the School Board and the City have a general understanding of the potential implications of the plan amendment. The ORC Report contained an objection regarding coordination of the amendment with the School Board. In response to the objection, the City indicated that it provided notice of the amendment to the School Board and an additional opportunity for School Board comment. The City also provided an analysis from the School Board indicating that the amendment would generate only 76 students. Additionally, in the Development Agreement between the City and the Developer, the Developer agreed to pay $1,235.00 for each residential unit to the School Board in addition to the school impact fees required for each residential unit. The Agreement for this mitigation represents an additional step toward helping to address what is the understanding of the impact on schools and is a further indication of coordination between the land use and school planning. The Department does not currently have a standard to use to measure the adequacy of the dollar amount since school concurrency is not required at this time. Therefore, the City has not established LOS standards. Given these considerations, it is fairly debatable that the City has demonstrated adequate coordination with the School Board regarding school facilities. Impact on Transportation The Association further contends that the LOS on public streets serving the Association's members and serving property owned by the Association will deteriorate. It also contends that traffic flowing from the subject property will overcrowd and/or negatively impact the Association. In support of these contentions, the Association presented the testimony of Harry A. Burns, Jr., a professional engineer, regarding potential traffic impacts based upon his review of the Plan and transportation element. According to the Plan, the segment of U.S. Highway 17-92 north of Shepard Road is currently operating at LOS F, which is below the adopted LOS standard. As noted earlier, U.S. Highway 17-92 is a major arterial very close to the subject property. Although the Plan indicates that U.S. Highway 17-92 is slated for a six-lane project by 2010, the Plan also indicates that it is anticipated the LOS will still remain at F. Mr. Burns opined that Shepard Road and Sheoah Boulevard, a minor two-lane collector road which winds through the Association in a north-south direction, will be "impacted" by the MDR land use designation. He concluded that a traffic study should be done for Sheoah Boulevard because it is a collector road and is in the amendment's impact area. Although he testified that Shepard road would be impacted, he had no information indicating that Shepard Road would be negatively impacted. Also, he did not know whether the plan amendment would result in a reduction in the operating LOS for Shepard Road and Sheoah Boulevard. Petitioner's expert also opined that traffic generated by a change in the land use would have a different trip distribution than traffic generated by industrial. He testified that, from a traffic circulation standpoint, it was likely that residential traffic would be more willing to travel east through the Association than would industrial traffic because the industrial traffic would prefer to access the nearby U.S. Highway 17-92 to the immediate west. He further opined that there were not "attractors" for industrial traffic to travel east through the Association. He admitted, however, that the City's Town Center as well as the Greenway toll road (State Road 417) were located to the east of the subject property. Although the expert believed that the trip generation characteristics of an industrial land use would be different than those for a residential land use, he agreed that he would need to model the trip distribution to accurately determine where the traffic would go. The witness had not done that prior to the hearing. Data and analysis relative to traffic impacts were submitted to the Department by the City and the Florida Department of Transportation (FDOT). Based upon its review of the plan amendment, on March 22, 2006, FDOT provided a letter to the Department in which it determined that an Industrial land use would generate 7,176 average daily trips (ADT) and 1,308 PM (afternoon) peak hour trips. On the other hand, a MDR designation would generate only 3,936 ADT and 394 PM peak hour trips, resulting in a decrease of 3,240 average daily trips. This is a substantial reduction. All experts in this case agreed with the FDOT's assessment. FDOT further concluded that because the "amendment would result in a decrease in daily trips . . . FDOT has no comments on this amendment." The letter did not raise any concerns regarding impacts to U.S. Highway 17-92, a state road under its jurisdiction. The City Engineer and the City's expert planner established that a further traffic study or analysis at this stage was unnecessary because the land use change resulted in a substantial decrease in trips. In addition, the Department's planner opined that reducing the trip generation potential from the amendment parcel is a strategy to reduce the potential traffic on the road network that, in combination with other actions, can have a significant effect on helping improve the coordination between land use and transportation relative to the operating LOS on the roadways. Due to the specific nature and context of this particular amendment, he also agreed that no further general planning or transportation analysis was warranted at this stage. In fact, the reduction helps the Plan better coordinate land use and transportation in terms of the potential trips that might occur on the road system. Coordination of land use and transportation facilities was appropriately addressed at the plan amendment stage through the significant reduction in trip generation potential on the property. Finally, although Petitioner's expert pointed out that the City's Plan indicates that even with scheduled improvements the segment of U.S. Highway 17-92 north of Shepard Road will have deficiencies by the year 2010, he could not say that the amendment would cause LOS deficiencies on that road or indicate with any degree of precision the effect the amendment would have on the LOS. As noted above, he did not perform a traffic analysis of the amendment. Given these considerations, it is found that Petitioner did not demonstrate beyond fair debate that the amendment will result in LOS deficiencies on U.S. Highway 17-92, Shepard Road, or Sheoah Boulevard. Further, it failed to prove beyond fair debate that the amendment is not in compliance with respect to transportation issues. Open Space and Recreational Land and Facilities Contrary to the Association's assertion, the plan amendment will not impact or adversely affect the City's LOS standards for recreational facilities. There have been increased recreational facilities in the City since the Plan was written, which has increased the LOS that is available, and there is no LOS deficiency for parks through the year 2010. Indeed, the LOS will be met even if park lands are not built on the subject property. The Development Agreement between Keewin and the City requires Keewin to include park lands on the subject property. The Agreement specifically provides a paragraph on "Parks and Recreation" which includes the following language in paragraph 4: In accordance with Winter Springs Code Section 20-354 and other applicable provisions of the City’s Comprehensive Plan and Code, the Developer agrees to dedicate an appropriate amount of land as a park for the residents of the Project. Such park shall have recreational facilities built in accordance with the standards of the National Recreational Association. In addition, such park shall be protected through deed restrictions . . . which shall ensure the preservation of its intended use, the payment of future taxes, and the maintenance of the park and facilities for a safe, healthy and attractive living environment. The park shall be included in the phasing plan, if any, and shall be constructed and fully improved by Developer at an equivalent or greater rate than the construction of the residential structures for which it serves. Therefore, the subject property will provide its own park and recreation area on-site. There is sufficient land on the site to accommodate on-site park facilities based on the residential densities that might be allowed on the subject property. The Department established that the land use is being adequately coordinated with recreational facilities. There is appropriate coordination between the land use and recreational facilities, and the residents of the subject property would not have to make use of any other city park facilities. Petitioner acknowledges that the Developer's Agreement indicates that the Developer will provide for a park; however, Petitioner still complains that there is not enough detail about the parks to be provided on-site. However, there is no requirement at this stage of the process that such a degree of specificity for parks be provided. The evidence supports a finding that a change to MDR is compatible with adjacent land uses and will have no impact on private parks and recreation areas on adjacent lands. There is insufficient evidence to support a finding that the plan amendment will impact the Association. Indeed, the subject property will have two City parks that service the area and a 315-acre county-owned community park facility less than a mile from the subject property. Consistency With Rule and Statutory Provisions The Amended Petition alleges that the amendment is inconsistent with various provisions of Florida Administrative Code Rule Chapter 9J-5 and Chapter 163, Florida Statutes. However, Petitioner did not present any testimony addressing any of the rule or statutory provisions. Conversely, the evidence presented by Respondents and Intervenor demonstrates that the amendment is consistent with these provisions. Accordingly, it is found that the amendment is not inconsistent with Florida Administrative Code Rules 9J-5.006(3)(b)1., 9J-5.006(2)(a), 9J- 5.006(3)(c)2. and 3., 9J-5.016(1)(a) and (b), 9J-5.016(2)(b), 9J-5.016(3)(b)1. and 5., 9J-5.016(3)(c)5., 9J-5.0055(2)(a), and 9J-5.0055(3)(b) and (d), and Section 163.3177(3), (6)(a) and (e), Florida Statutes, as alleged in the Amended Petition. Trespass and Vandalism Concerns Finally, Petitioner has alleged that residential development of the subject property will increase the unauthorized use of its private recreational facilities and amenities, as well as increase vandalism to its personal property by non-residents. However, allegations regarding potential trespass and unauthorized use of recreational facilities on nearby lands is not a compliance issue under Chapter 163, Florida Statutes. Issues Under Section 120.595(1), Florida Statutes In its Amended Petition filed on September 25, 2006, the Association raised five grounds for determining the plan amendment to be not in compliance: increased traffic that would impact the Association's members; school overcrowding, and particularly the elementary school just north of Shepard Road; inadequate open space and recreation land and facilities, including unauthorized use of Association facilities, as a result of the new development's residents and children; reduced industrial zoning; and inconsistencies with various provisions within Florida Administrative Code Rule Chapter 9J-5 and Chapter 163, Florida Statutes. There is no evidence that the Association has ever participated in a prior proceeding involving the City or Keewin and the same project. The Association representative, Ms. Schwarz, acknowledged that before the Amended Petition was filed, the Association did not consult with any experts regarding the issues raised in that filing. According to Ms. Schwarz, the allegations represented concerns expressed by various members of the Association to the Board of Directors. Most of these concerns are specifically reflected in the minutes of the meeting held on January 13, 2006. However, the Association did consult with outside counsel in drafting the issues in the Petition. This is evidenced by the fact that at least three of the concerns in the Amended Petition (traffic, school overcrowding, and inadequate open space and recreational facilities) were previously discussed in detail in a letter from outside counsel to the City on February 7, 2006, or just before the City Commission initially met to consider the amendment. Although the case was originally scheduled to be heard in February 2007, on October 31, 2006, Intervenor filed its demand for an expeditious hearing under Section 163.3189(3), Florida Statutes. Accordingly, by Order dated November 1, 2006, this case was rescheduled to be heard on November 29, 2006, under the mandatory fast track timelines in that statute. Because of this short timeframe, Association counsel represented during a status conference on November 10, 2006, that he was experiencing difficulty in interviewing and hiring outside experts on such short notice, particularly with the intervening Thanksgiving holidays. This was confirmed by Ms. Hinton at final hearing, who represented that if the hearing had been held in February 2007, the Association had planned on hiring a number of experts. Even so, on short notice, the Association was able to engage the services of a professional engineer who offered expert testimony on the traffic issue. The remainder of its evidence was presented through lay witnesses, by cross- examination of the other parties' experts, and by documentation. No direct evidence was affirmatively presented on the issue of whether the plan amendment was in conflict with various provisions of Department rules or Florida Statutes. As to all other issues, even though the Association did not prevail on any of its claims, it did present some evidence, albeit minimal in some respects, in support of its position. There is no evidence, direct or circumstantial, to support a finding that the Association's primary motive in filing its Petition was to simply harass the City or developer, delay the project (which will be built on the property after the land use change is approved and building permits obtained), or needlessly increase the cost of litigation for those parties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2005-29 is in compliance. Jurisdiction is retained to consider the City's Motion for Sanctions Against Petitioner and Intervenor's Motion for Sanctions, Fees and Costs filed under Sections 120.569(2) and 163.3184(12), Florida Statutes, if renewed within 30 days after issuance of the final order. DONE AND ENTERED this 3rd day of January, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 3rd of January, 2007.
The Issue The issue presented for decision herein is whether or not Respondent exhibited financial mismanagement, misconduct, diversion, gross negligence or incompetence, failed to properly supervise a construction project in violation of sections 489.129(1)(h), (j) and (m); 489.119 and 489.105(4), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: At times material herein, Respondent was a certified general contractor in Florida having been issued license number CG C016802. On November 27, 1985, Respondent contracted with Dr. Blaine Woods, a chiropractor, to construct a residence at Lot 188, Whispering Woods Subdivision, 8020 NW 47th Drive, Coral Springs, Florida for a price of $248,307.00. According to the terms of the contract, the construction was to be completed in five months. (Petitioner's Composite Exhibit 16, Article 2) Construction commenced on the Woods' residence during December, 1985. During construction, Dr. Woods made draw payments to Respondent totaling $211,44.00 or approximately 85% of the contract price. The contract provided that the final draw payment, amounting to 15% of the contract price, was to be paid upon issuance of a Certificate of Occupancy (CO). During the latter stages of construction, Respondent frequently was on the job site by himself. On several occasions, Dr. Woods personally assisted Respondent in the construction. Dr. Woods had contracted to sell his home when construction commenced on his new home. He sold it in early August and was forced to move. Based on that fact, a temporary CO was issued on August 1, 1986 and Dr. Woods moved into the new home on August 2, 1986. As of August 2, many of the contract items had not been installed or were defective including: the pool heater, two shower enclosures, cabinets in a game room, spa decking and floor tile at the entrances, three garage door openers, 13 ceiling fans, pantry shelving, a roof that leaks, numerous electrical outlet problems and the pool deck which was not installed as Respondent agreed by the contract. Upon occupying the home, Dr. Woods began receiving phone calls and personal visits from subcontractors and materialmen who had supplied either services or materials, demanding payment. The majority of the subcontractors had been told by Respondent that they could not be paid because Dr. Woods had not paid him. Over the next several weeks, approximately twenty (20) subcontractors and materialmen approached Dr. Woods for payment of invoices totaling $71,451.37. Dr. Woods attempted, unsuccessfully, to have the subcontractors return to the house to finish the work. As a result, Dr. Woods was forced to hire additional subcontractors to complete his home. Dr. Woods spent a majority of the $37,000 final draw reserve completing his home. Eleven liens have been filed against the Woods residence as a result of Respondent's failure to pay subcontractors and/or materialmen. Dr. Woods, through legal counsel, was able to remove most of the liens filed against his home based on legal technicalities. However, in so doing, he incurred legal fees in the amount of $12,791.76. At the time of hearing, four outstanding liens remained on the Woods' residence. Jerry Hicks, a licensed architect and general contractor in Florida, was tendered as an expert in the areas of architecture and contracting. Hicks opined that Respondent significantly underbid the Woods' residence and was therefore grossly negligent or incompetent for entering into a contract which he could not perform. (Deposition of Jerry Hicks, Petitioner's Exhibit 5). Julio Aldecocea, also a licensed architect and general contractor, was tendered as an expert in the fields of architecture and general contracting. Aldecocea also opined that when Respondent found himself unable to pay subcontractors because he underbid the project, he committed gross negligence or incompetence in entering into a contract he could not perform. Aldecocea noted that it is standard procedure for contractors to monitor the progress of a job to ensure that costs are running within budget and to take corrective measures if costs begin to exceed budget. Respondent, by failing to take this step, committed financial mismanagement when he let outstanding bills to subcontractors in the amount of $71,451.37 remain unpaid. During the hearing, Respondent admitted that he expected to make a profit of approximately $24,000.00 on the Woods residence when he entered into the contract. Based on the amount of money outstanding to subcontractors and materialmen, Aldecocea opined that it was misconduct for Respondent to tell the subcontractors and supplies that they cannot be paid because Dr. Woods had not paid the final draw when he had been, in fact, paid. Valid liens have been recorded against Dr. Woods' property for supplies and services ordered by Respondent for the Woods' project. Respondent has received funds from Woods to pay for those suppliers and services. Respondent failed to remove the liens from the Woods' property. Respondent admitted, in a telephone conversation with Dr. and Mrs. Woods, that he could not pay subcontractors because he had made an investment which "went down the tubes". (Testimony of Dr. and Mrs. Woods). Respondent appeared and testified that the Woods' residence was, in his opinion, more than what they had paid for and therefore he was due excess monies for items over and above what he contracted for. In the areas where there deficiencies, Respondent contends that such items were "service items" which were routine in any newly built house and could have been easily repaired if afforded an opportunity. In this regard, Respondent alluded to several areas where the Woods got more than they bargained for. Specifically, he mentioned that the property had to be regraded and needed a retention area and he refused to pay Mr. Allen, manager of Coral Springs Property Services Incorporated, for the additional grading and paving that was needed. Respondent also contends that the pool was larger than what was contracted for and that the Woods ordered several plants and shrubbery from Tropical Trees which was over and above the amount allotted under the contract. Finally, Respondent contends that the driveway was larger than what was called for in the plans and therefore he would not pay the difference which resulted from his having to build a larger driveway. Respondent, as a certified general contractor, was familiar with the manner in which a change order could be instituted in the contract and no change orders were completed respecting the above-referenced items. (Petitioner's Exhibits 11 and 12) Moreover, the Woods made a change in the contract and a change order was written for a brick wall and a sum of $4,941.00 was added to the contract price. Respondent was aware of this procedure and did not avail himself of the opportunity to effect a change order as provided in the contract. Since Respondent knew, or should have known that the proper procedure to be reimbursed for a charge in the plans, which is over and above what was originally included in the contract, is through the use of a change order, his claims that the Woods received more than they bargained for is without merit.
The Issue The issues are whether the Department of Transportation may declare Petitioner non-responsible and ineligible to bid on Department contracts based upon Petitioner's alleged unsatisfactory performance and default on Department contract number E-5G08; and if so, for what period of time should Petitioner be declared non-responsible.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner is a Florida corporation whose principal business is road and bridge maintenance. Petitioner also does some landscape installation work. Petitioner's president is Charles Welch. Petitioner has received between ten and 20 contracts from the Department since 1993. However, the contract at issue in this proceeding is the first landscape installation project that Petitioner has done for the Department. The Department is the state agency responsible for maintaining and regulating the use of the right-of-way along the state highway system. That responsibility includes overseeing the installation and maintenance of landscaping within the right-of-way. Department Contract No. E-5G08 In November 2001, the Department awarded Petitioner a contract to install landscaping around six interchanges in the central Florida area. The interchanges were identified and prioritized in the bid specifications as follows: (1) I-95/US 192 interchange; (2) I-4/Lake Mary Boulevard interchange; (3) SR 25/SR 200 interchange; (4) SR 482/SR 435 interchange; (5) I-95/SR 518 interchange; and (6) US 441/SR 46 interchange. The SR 482/SR 435 interchange was subsequently deleted from the project, and the I-4/Lake Mary Boulevard interchange was subsequently prioritized ahead of the I-95/US 192 interchange. The Department's contract identification number for the project was E-5G08. The contract required Petitioner to prepare and mulch 66,667 square yards of beds for the landscaping and then to install a total of 63,667 plumbago shrubs and 927 sabal palm trees. The plumbagos were required to be ten to 18 inches in height, and the palm trees were required to be nine to 20 feet in height. Petitioner did not challenge the specifications for the project. Petitioner bid $745,160.90 for the contract, and the Department accepted the bid at that amount. Petitioner's bid amount was calculated by multiplying a unit price for each plant type by the number of plants required under the contract, plus a unit price for the mulching/bed preparation multiplied by the total number of square yards in the beds. No separate amount was bid by Petitioner for "maintenance," and the bid form did not include a separate line for that item. The contract generally described the work to be performed by Petitioner as "furnish[ing] and install[ing] palms, plants and associated landscape materials at various locations." A similar description of the project was provided on the first page of the bid specification package. The contract and the bid specification package incorporated by reference the 2000 edition of the Department's Standard Specifications for Road and Bridge Construction (Standard Specifications). Mr. Welch was generally familiar with the Standard Specifications as a result of the prior contract work that he and Petitioner had done for the Department. He understood that the Standard Specifications were part of each Department construction and maintenance contract. Section 580-10 of the Standard Specifications, entitled "Contractor's Responsibility for Condition of the Plantings," requires the contractor to: [e]nsure that the plants are kept watered, that the staking and guying is adjusted as necessary, that all planting areas and beds are kept free of weeds and undesirable plant growth and that the plants are maintained so that they are healthy, vigorous, and undamaged at the time of acceptance. Section 580-11 of the Standard Specifications, entitled "Plant Establishment Period and Contractor's Warranty," requires the contractor to: [a]ssume responsibility for the proper maintenance, survival and condition of all landscape items for a period of one year after the final acceptance of all work under the Contract in accordance with [Section] 5-11. [The contractor shall also] [p]rovide a Warranty/Maintenance Bond to the Department in the amount of the total sums bid for all landscape items as evidence of warranty during this plant establishment period. The costs of the bond will not be paid separately, but will be included in the costs of other bid items. * * * [The contractor shall] [t]ake responsibility to apply water as necessary during this period and include the cost in the various landscape items. No separate measurement of payment will be made for water during the plant establishment period. Pursuant to Sections 5-10 and 5-11 of the Standard Specifications, "acceptance" of a project does not occur until the Department determines that the contractor has satisfactorily completed all work on the project and informs the contractor in writing that the project is accepted. Sections 5-10.2 and 5-10.3 of the Standard Specifications allow for acceptance of portions of the project, called "partial acceptance." Those provisions do not, however, require the Department to accept projects on a piecemeal basis. At the pre-construction conference held on November 19, 2001, Mr. Welch asked, "if a single location [would] be accepted as it is completed." The Department's project manager, Stephen Bass, replied that he would "check to see if this is possible," and he told Mr. Welch that "[i]n the meantime, as you complete a site, advise me in writing and I will respond " Based upon the subsequent correspondence between the parties, it can be inferred that the Department decided against accepting the project on a site-by-site basis. No partial or final acceptance was ever given for the project or any of the individual sites. The first page of the specification package provided that the contract period was "270 days for installation," and "365 addtl [sic] days after acceptance for establishment." The 365-day, post-acceptance establishment period referred to in the specification package is the same as the one- year period referred to in Section 580-11 of the Standard Specifications. Petitioner's obligations during the establishment period were specifically discussed at the pre-construction conference. At that time, Mr. Bass made it clear to Mr. Welch that the contract included the one-year establishment period, in addition to the 270-day installation period. The installation period began on December 3, 2001, and ended on September 8, 2002. The latter date takes into account the ten "[bad] weather days" added to the installation period under the terms of the contract. Mr. Welch understood the project to be an installation-only contract. That understanding was based upon the reference to a 270-day installation period in the specifications, and the fact that the bid form did not have a separate line-item for maintenance. Mr. Welch did not read the specifications word-for- word prior to bidding on the project, nor did he take into account Section 580-11 of the Standard Specifications or the language on the first page of the specification package which clearly referenced the 365-day, post-acceptance establishment period. Mr. Welch did not understand the contract to require Petitioner to weed or otherwise maintain the beds after the plants were installed. He understood the contract to only require Petitioner to install the plants and then water them through the end of the 270-day installation period. In reaching this conclusion, Mr. Welch did not take into account Section 580-10 of the Standard Specifications, which clearly requires pre-acceptance weeding and which makes the contractor the absolute insurer of the plants until acceptance by the Department. The Department did not in any way contribute to Mr. Welch's misunderstanding of the scope of the contract. The contract documents were clear and unambiguous on the issue and the Department made it clear from the outset that the contract included a one-year establishment period. Petitioner's Performance Under the Contract Petitioner performed its work under the contract in a series of steps. Petitioner first sprayed the areas at each site where the landscaping would be installed with a herbacide to kill any existing vegetation. Two herbacide treatments were done at each site. Petitioner then "mulched" the planting areas at each site by mowing the dead vegetation and marked the locations at each site where the palm trees were to be installed. Petitioner then planted the palm trees at each site. Next, Petitioner installed "weed fabric" at the I-4/Lake Mary Boulevard interchange (hereafter "the Lake Mary site"). The weed fabric has two purposes: it blocks the light that reaches the ground thereby reducing or eliminating weeds, and it also helps prevent erosion. After installing the weed fabric, Petitioner began planting the plumbago shrubs at the Lake Mary site. To do so, Petitioner cut and folded back the weed fabric where each plumbago was to be located and then dug the hole within which the plant was placed. After the plant was placed in the hole, the weed fabric was then re-folded around the base of the plant. After the plumbagos were planted, Petitioner completed its work at the Lake Mary site by spreading pine straw mulch in the landscaped beds. The contract required a four-inch layer of mulch. After completing its work at the Lake Mary site, Petitioner moved to another site and installed the weed fabric, planted the plumbagos, and spread the pine straw mulch at that site. Petitioner continued working on a site-by-site basis in this manner until all of the sites had been completed. In June 2002, the Department expressed concern to Petitioner that it had fallen behind its installation schedule. In response, Petitioner put more people on the job and was able to get back on schedule. Petitioner completed the installation of the plants within the 270 days allotted for installation. Petitioner periodically watered each of the sites as the plants were being installed. Petitioner had two water trucks that it used for watering. The truck used at the Lake Mary site sprayed a stream of water out of a hose at a relatively high flow rate. Because large portions of the landscaped beds at the Lake Mary site were on steep slopes around the interchange, the stream of water from the water truck caused some of the pine straw to wash down the slope. Heavy rains also caused the pine straw to wash down the slope and, in some areas, to wash away completely. As a result, some of the landscaped areas were not covered with the four inches of mulch required by the specifications. Mr. Welch acknowledged the loss of mulch in some areas, and he attributed it to the weed fabric being too "slick" to hold the mulch. Nevertheless, because Mr. Welch considered the replacement of the mulch to be maintenance, which he did not consider to be part of the contract, Petitioner never replaced the pine straw. Petitioner did not consider using a "drip line" or other watering system which would have applied the water at ground level or at a lower rate of flow than the stream of water being sprayed from the water truck. Such an alternative system may have minimized the amount of mulch that washed down the slope from watering, but it may not have affected the mulch that washed away due to heavy rains. Such a system may have also gotten more water to the plants' roots. Despite the watering done by Petitioner, plumbagos and palm trees died at the Lake Mary site, as well as at the other sites. Mr. Welch acknowledged the "loss" of a number of trees and plants, although he testified that fewer plants had died than he had projected at the outset of the project. The precise number of trees and plants which died before Petitioner was declared in default on the contract and told to stop work on the project is not clearly reflected in the record. The loss of the plumbagos at the Lake Mary site may be partially attributable to the weed fabric selected by Petitioner not being permeable enough to allow the water to reach the plant roots, but Petitioner's failure to utilize an alternative watering system to compensate for the "problems" it encountered with the weed fabric also contributed to the loss of the plumbagos. On August 12, 2002, the Department and Petitioner "agreed that substantial completion has been achieved" on each of the sites. That means that all or substantially all of the plants had been installed by that date; it does not mean that the Department had accepted the work, either partially or conditionally. By letter dated August 13, 2002, the Department informed Petitioner that maintenance of the completed sites was necessary. Specifically, the letter informed Petitioner that there were dead palm trees and plumbagos at all of the sites which needed to be replaced, that the pine straw mulch needed to be replaced at most of the sites, and that weeding needed to be done. Petitioner did not perform the weeding or other maintenance directed by the Department. Indeed, the only work that Petitioner did on the project after August 13, 2002, was on August 20, 2002, when it watered two of the sites. By letter dated August 15, 2002, Petitioner responded to the Department's direction that maintenance be commenced at the completed sites. In that letter, Petitioner characterized the maintenance as "extra work" and requested additional compensation for the maintenance work. The Department denied Petitioner's request for additional compensation by letter dated August 15, 2002. That letter informed Petitioner that "a Deficiency Letter would be forthcoming if weed removal operation does not begin immediately." Petitioner did not respond to the letter. By letter dated August 21, 2002, the Department issued a "performance deficiency" based upon Petitioner's failure to maintain the planted areas as required by the contract and as directed by the Department in the letters dated August 13 and 15, 2002. Petitioner did not contest the deficiency within the ten-day period prescribed by the letter. By letter dated August 22, 2002, the Department requested that Petitioner submit the Warranty/Maintenance Bond required by the contract since "substantial completion has been achieved on the . . . project." The letter further advised Petitioner that the one-year establishment period would not commence until the bond was received by the Department. Petitioner did not respond to the letter. By letter dated August 27, 2002, the Department provided Petitioner with a "punch list" of items that required correction before the project could be accepted. The list included the replacement of dead palm trees and dead or under- sized plumbago shrubs at all of the sites; missing pine straw mulch at all of the sites; weeding and general clean-up of all of the sites; and submittal of the Warranty/Maintenance Bond. At the time of the Department's August 27, 2002, letter, 12 days still remained in the installation period. Petitioner did not respond to the letter and it made no effort to complete the punch list items identified by the Department. The Department never accepted the work performed by Petitioner under the contract because of the deficiencies identified above. As a result, the 365-day post-acceptance establishment period never commenced. Petitioner never provided the Department the Warranty/Maintenance Bond required by Section 580-11 of the Standard Specifications, which was incorporated by reference into the contract. The Lake Mary site is highly visible because the adjacent roads are very heavily traveled. The Department received complaints regarding the appearance of the Lake Mary site. The complaints came from Seminole County officials and members of the public. Alternative Weed Fabric Proposed by Petitioner The specifications package for the contract provided general requirements for the weed fabric to be used on the project. It did not, however, specify a specific brand of fabric which must be used. The specifications package provided that "[t]he fabric shall conform to the physical requirements on Roadway and Traffic Design Standards, Index No. 199 according to its application." Index No. 199 refers to the weed fabric as an "erosion mat," and requires it to have an ultra violet (UV) rating of 2,000 hours. Index No. 199 does not prescribe criteria for water permeability for the weed fabric. Petitioner provided the information in the specifications package relating to the weed fabric to its material supplier, who then provided Petitioner a fabric that met the specifications. The Department was not involved in those discussions. As required by the specifications package, Petitioner provided the Department a copy of the product data sheet for the selected fabric so that the Department could confirm that the fabric met the requirements of Index No. 199. The weed fabric which Petitioner selected was called "gold line." It had a UV rating of 2,500 hours, which met the requirements of Index No. 199. It had a water permeability rating of 15 gallons per minute per square foot (gal/min/SF). After encountering the problems described above at the Lake Mary site, Petitioner began looking for an alternative weed fabric which would be more permeable to water. The alternative fabric identified by Petitioner was "Style 125EX" from Linq Industrial Fabrics, Inc. The water permeability rating for that fabric was 150 gal/min/SF, but its UV rating was only 500 hours. Mr. Welch provided the data sheet for the Style 125EX fabric to Mr. Bass and requested that Petitioner be allowed to substitute that fabric for the fabric that it had used at the Lake Mary site. The Style 125EX fabric would have been used on the remaining sites, because the Lake Mary site had been completed with the original weed fabric by that time. That request was denied by the Department because the UV rating for the Style 125EX fabric did not meet the requirements of Index No. 199. The lower UV rating meant that the fabric would not hold up as long and, therefore, could create maintenance problems in the future. After the request to substitute the Style 125EX fabric was denied, Petitioner did not attempt to locate an alternative material which met the UV rating specified in Index No. 199, but was more permeable to water than the gold line fabric. Petitioner's Default and Unsatisfactory Performance Rating Section 8-9.1 of the contract provides that: The following acts or omissions constitute acts of default and . . . the Department will give notice, in writing, to the Contractor and his surety for any delay, neglect or default, if the Contractor: * * * performs the work unsuitably, or neglects or refuses to remove materials or to perform anew such work that the Engineer rejects as unacceptable and unsuitable; discontinues prosecution of the work, or fails to resume discontinued work within a reasonable time after the Engineer notifies the Contractor to do so; * * * (j) for any other cause whatsoever, fails to carry on the work in an acceptable manner, . . . . For a notice based upon reasons stated in subparagraphs (a) through (h) and (j): if the Contractor, within a period of ten calendar days after receiving the notice described above, fails to correct the conditions of which complaint is made, the Department will . . . have full power and authority, without violating the Contract, to take the prosecution of the work out of the hands of the Contractor and to declare the contractor in default. On September 16, 2002, the Department notified Petitioner that it intended to "default" Petitioner under the contract based upon its failure to maintain the planted areas, its failure to replace the dead plumbagos and palms, and its failure to provide the required Maintenance/Warranty Bond. As required by the contract, the letter gave Petitioner 10 days to cure the deficiencies in its performance. Petitioner did not respond to the Department's default letter, nor did it take any action to cure the deficiencies identified by the Department. As a result, on September 30, 2002, the Department formally declared Petitioner in default on the contract and directed Petitioner not to perform any additional work on the project. By letter dated October 22, 2002, the Department advised Petitioner of its "preliminary" field performance rating for the contract. Petitioner received a raw score of 53 (out of 90), which is a scaled score of 59. That is an unsatisfactory rating. Petitioner did not contest its rating within the time allowed by the Department's October 22, 2002, letter. As a result, the preliminary rating became final. Petitioner was not scored in the area of "maintenance of traffic operations." The Department had not received any complaints from the public on that issue, which is the primary consideration upon which that score is based. Had Petitioner received a "satisfactory" grade in that category, Petitioner's total score would have been 60. If Petitioner received a higher grade in that category, its total score could have been as high as 63. In either event, those scores still result in an unsatisfactory rating. By letter dated February 12, 2003, the Department advised Petitioner that it intended to declare Petitioner non-responsible for a period of two years based upon its default and unsatisfactory performance on Department contract number E-5G08. Petitioner timely requested a formal hearing, and this proceeding followed. The Department stipulated at the hearing that its decision to declare Petitioner non-responsible was not based on Petitioner's numerical performance rating (whether it is 59, 60, or 63), but rather on the actual unsatisfactory performance that is described above. Subsequent Department Contract With Vila & Sons After Petitioner's default, the Department contracted with another entity "in order to salvage the Department's investment in this landscaping project, i.e., ensure that the plantings become established, " That contract, entered into in May 2003 between the Department and Vila & Sons Landscaping Corporation, is identified as contract number E-5H09 (Vila & Sons Contract). The contract amount was $112,461.36. The Vila & Sons Contract was for "one-time maintenance" of three of the sites that Petitioner was responsible for under its contract with the Department. The sites were the I-4/Lake Mary Boulevard interchange, the SR 25/SR 200 interchange, and the US 441/SR 46 interchange. The Vila & Sons Contract was only for a 60-day period and consisted of the following landscape maintenance functions: 1) weeding [which includes pruning of existing live shrubs], 2) removal and replacement of dead shrubs, 3) fertilizing [which includes "watering in"], 4) remulching as necessary, 5) watering for plant establishment and/or maintenance. (Brackets in original). The Vila & Sons Contract called for the installation of 3,700 plumbago shrubs. It does not make reference to the removal of dead palm trees, the re-erection of fallen palm trees, or the installation of new palm trees. The bid form for the Vila & Sons Contract included separate line-items for water, mulch pine bark, plumbago shrubs, slow-release fertilizer, and "landscape maintenance (weed removal, manual)." The record does not establish whether the Vila & Sons Contract was satisfactorily performed or whether it was successful in "salvaging" the installation work which had been done by Petitioner. Between the time that Petitioner was declared in default in September 2002 and May 2003 when the Vila & Sons Contract was entered into, the Central Florida area had periods of cold weather. The cold temperatures during those periods may have killed some of the plumbagos and palm trees installed by Petitioner, but the record does not establish how many plants, if any, were killed by the cold weather as compared to the plants that were already dead at the time of Petitioner's default.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order which declares Petitioner non-responsible and ineligible to bid on Department contracts for a period of two years, commencing on the date of the final order. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 18th day of September, 2003. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32308 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Petitioner is an unsuccessful candidate for the landscape architects examination given in June, 1990, (the "examination"). Petitioner achieved a passing grade on Sections 2 and 5 of the examination but failed Sections 3 and 4. Petitioner received a score of 72.8 percent on Section 3 of the examination. The minimum passing score is 75 percent. At Petitioner's request, Respondent regraded Petitioner's answers to Section 3 of the examination. Petitioner's score upon regrade was 73 percent. Petitioner needs 2 percentage points to pass Section 3 of the examination. Petitioner received a score of 54.3 percent on Section 4 of the examination. The minimum passing score for Section 4 of the examination is 75 percent. At Petitioner's request, Respondent regraded Petitioner's answers to Section 4 of the examination. Petitioner's score upon regrade was 60 percent. Petitioner needed 25 percentage points to pass Section 4 of the examination, but waived his challenge to Section 4 during the formal hearing. Petitioner was given proper credit for his answers to Section 3 of the examination. Petitioner should have received and received a score of 73 percent when Respondent regraded Petitioner's answers to Section 3 of the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's challenge to the score he received for Section 3 of the landscape architect examination given in June, 1990. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of September 1991. DANIEL MANRY 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 24th day of September 1991. APPENDIX TO RECOMMENDED ORDER Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs. Petitioner did not submit proposed findings of fact. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Accepted in Finding 2 Accepted in Finding 3 Accepted in Findings 3-4 COPIES FURNISHED: Angel Gonzalez Executive Director Board of Landscape Architecture Board 1940 N. Monroe Street Tallahassee, Florida 32399-0750 Jack McRay General Counsel 1940 North Monroe Tallahassee, Florida 32399-0792 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe Tallahassee, Florida 32399-0792 Case No. 91-2120 (continued) Mr. Dale R. Smith 28225 Southwest 172d Avenue Homestead, Florida 33030
The Issue Whether Respondent violated Subsections 481.325(1)(g), 481.325(1)(j), 481.325(1)(k), and 455.227(1)(a), Florida Statutes (2001), and, if so, what discipline should be imposed.
Findings Of Fact At all material times relevant to this proceeding, Maestre was licensed as a landscape architect in the State of Florida, having been issued license number LA 00001744. Maestre provided landscape architectural services through Tropicare Landscape, Inc. (Tropicare). Tropicare has never possessed a certificate of authorization for the practice of landscape architecture in the State of Florida. Stephen Kidd (Kidd) and his wife Jaqueline Hansen (Hansen) contacted Maestre to help them with a landscaping project in their backyard. Hansen found Maestre using the yellow pages in the telephone directory. Maestre came to the Kidd/Hansen residence sometime in June 2001 to discuss the project. Hansen provided Maestre with a sketch for the design of the project, which included a deck, a koi pond, a stream, and a waterfall. Hansen paid Maestre $40 for the consultation, although she and Kidd understood that the initial consultation was to be free. On June 15, 2001, Kidd and Hansen entered into a contract with Maestre for landscape architectural design services. The cover letter which accompanied the contract was on Tropicare letterhead. The contract provided that Maestre was to "examine surrounding conditions, locate and identify all existing amenities for the purpose of producing the necessary site plan." After the owners approved the preliminary phase, Maestre was to prepare working plans, which were to include the following: Planting: Shall name quantity and size all plantings {proposed & existing}, as well as depicting all proposed site amenities (sitting areas, walkways/deck, pond . . .) for various areas of the project site. Lighting: This plan shall show the location and type of light fixture to be used as decorative landscape lighting. Wiring and routing of electrical circuits are not part of this plan. If practical, this information will be depicted on the captioned planting plan. Layout & Details: As required, for all proposed hard-scape items referenced above, and such elements of the design solution proposed, shall be provided as needed for construction. The contract provided that Maestre may provide other services as requested by the owners such as obtaining subcontractor bids and making changes to completed working drawings. Maestre's role during the project installation was set forth in the contract as follows: Upon authorization of budgets & estimates by Owner, Tropicare Landscapes, Inc., shall implement and contract the Project, as phased by the Owner. The Landscape Architect shall oversee all work in progress. [50% of the Professional Fees disbursed by Owner as shown in Section II.b, shall be credited appropriately towards project installation.] Maestre's hourly fees were to be billed at $45 per hour for the preliminary work and other services and $65 per hour for the working plans. Hansen and Kidd provided Maestre with a copy of the deed restrictions for the subdivision in which the Kidd/Hansen residence was located. Kidd and Hansen received a statement from Maestre dated June 26, 2001, for $287.50, which represented 3.5 hours for site analysis and conceptual plan at $45 per hour and two hours for working drawings and base sheets at $65 per hour. Hansen paid Maestre $300 based on this statement. On his second meeting with Hansen, Maestre provided her with a conceptual plan, which was similar to the drawing that Hansen had originally provided to Maestre, except that Maestre had included gravel in some open areas where Hansen had wanted sod. Maestre sent Kidd and Hansen a statement dated July 5, 2001, for $393.75, which represented 6.25 hours for working drawings of the layout and planting design. Hansen paid Maestre $400 based on this statement. Kidd and Hansen provided Maestre with a copy of the survey of the property after the first site plan was completed. Maestre sent a statement to Kidd and Hansen dated July 10, 2001, in which he charged them $2,391.25, representing a project implementation deposit of $2,115 and 4.25 hours for working drawings for a new layout. Hansen paid Maestre $3,000 based on this statement. By letter dated July 11, 2001, Maestre advised Kidd and Hansen that the $2,115 deposit would be applied toward implementation of the project and that 50 percent of the professional fees paid for the working drawings would be credited toward project implementation. By statement dated July 23, 2001, Maestre charged Kidd and Hansen $650 for the working drawing of the final plan, representing ten hours of work. Hansen paid Maestre $650 based on this statement, bringing the total amount paid to Maestre to $4,390. By mid-August 2001, Hansen became nervous because no physical work was being done on the project. Maestre had not given her a project schedule, and she was uncomfortable with his work on the project. On August 20, 2001, Hansen advised Maestre by telephone that she and her husband no longer desired to continue with the project due to their financial circumstances. Kidd and Hansen were not having financial problems, but Hansen did not want to tell Maestre that they did not trust him. By letter on Tropicare letterhead dated August 20, 2001, Maestre advised Kidd and Hansen that the deposit that had been made for the installation had been applied towards an oriental wooden bridge and bamboo plants. Neither the bridge nor the purchase of the bamboo had been authorized by Hansen or Kidd. The letter included a statement of the costs for the bamboo and bridge and for six hours of additional services for meeting with potential subcontractors and for blueprints. The charge for the bamboo was $2,016, and the charge for the bridge was $372.80. As of the final hearing, Kidd and Hansen have not received either the bridge or the bamboo. By letter dated August 22, 2001, Hansen and Kidd advised Maestre that they were terminating the contract and wanted their money returned minus the money that had been paid for the plans. The correspondence and statements from Maestre to Kidd and Hansen were either on Tropicare's letterhead or a hybrid letterhead which showed both Maestre and Tropicare. It is clear that Tropicare was offering landscape architectural services with Maestre as the registered landscape architect. Maestre produced a layout plan dated August 2, 2001, and a plan with a plant list and construction notes (plant plan) dated June 5, 2001, with revisions on July 10 and 23, 2001. The plans were not in conformance with the deed restrictions for the subdivision in which the Kidd/Hansen residence is located. The deed restrictions required that "no structure of any kind, including but not limited to dwellings, garages, swimming pools, and screened cages, shall be erected nearer . . . than 8 feet from any side lot line, nor nearer than 15 feet from the rear lot line of any lot." The planting plan last revised on July 23, 2001, shows a mansard screened enclosure with eight-foot set backs from the rear lot line and a side line. The layout plan shows a setback of less than five feet from the mansard enclosure and the rear lot line. Both plans are in violation of the deed restrictions which require a 15-foot set back from the rear lot line. The waterfall structure has a five-foot set back from the rear lot line on the layout plan and an eight-foot set back on the planting plan. Both plans are violations of the deed restrictions requiring a 15-foot set back. The planting plan should contain the common names and the botanical names of the plants to be used in the project. The planting plan prepared by Maestre did not contain both the botanical and common names of the plants. The planting plan should specify the size, spacing, quality, and quantity of the plants. Maestre's planting plan did not specify the size, spacing, quality, or quantity of the plants to be used. The inadequate plant and planting specifications would not have permitted contractors to bid appropriately in the interests of Kidd and Hansen. Maestre's plans should have included specifications of location or of the type, size, and spacing of beams, joists, decking, and fasteners necessary for the construction of the deck structure. The plans prepared by Maestre did not include this information, which would be necessary to bid the deck portion of the project. Plans for water features such as the waterfall for the Kidd/Hansen residence should consider spray height or water fall, free board and operating water levels, water depth, water level and wave action, pool shape, color, materials for pipes and fittings, water volume and pressure, pump sizing, pump types and filtration systems. Maestre's plans did not specify or inadequately specified the characteristics of water flow, the water depth of the pond, pool shape, weir elevations, height of the waterfall, waterfall structure and components, pumping requirements, characteristics of the piping, and pump specifications. Maestre's plans for the deck were inadequate. The plans did not include specifications or details such as type, size, and spacing of beams, joists, decking, and fasteners for the construction of the deck structure. Additionally, the plans did not include the type of deck finish that would be applied after construction. The plans were inadequate in that they did not show how the bamboo screens were to be constructed or the height of the structures. This information would have been necessary to bid the bamboo structure portion of the project. Maestre met with potential subcontractors. The evidence does not clearly and convincingly show that these meetings were improper. However, Maestre did improperly charge Kidd and Hansen for the time he spent meeting with the subcontractors. Maestre charged Kidd and Hansen six hours for meeting with potential subcontractors at the rate of $65 per hour. The contract specified that the rate for such services was $45 per hour.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Manny F. Maestre violated Subsections 481.325(1)(g) and (j), Florida Statutes (2001); finding that he did not violate Subsections 481.325(1)(k) and 455.227(1)(a), Florida Statutes; imposing an administrative fine of $1,000 for a violation of Subsection 481.325(1)(g), Florida Statutes; imposing an administrative fine of $1,000 for a violation of Subsection 481.325(1)(j), Florida Statutes; issuing a written reprimand; and imposing two years of probation with conditions as the Board of Architecture and Interior Design deems necessary. DONE AND ENTERED this 23rd day of February, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 23rd day of February, 2004. COPIES FURNISHED: Manny F. Maestre, Jr. Post Office Box 20816 Bradenton, Florida 34204 Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sherry Landrum, Executive Director Board of Architecture and Interior Design Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Talbott and Drake, Inc. is and was at all times alleged herein a registered real estate broker corporation. William F. Talbott is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Paul P. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Helen C. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. On or about January 18, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated a contract for sale and purchase between the High Ridge Water Company -- John H. McGeary, Jr., sellers, and William Montaltos and Genevieve L. Montaltos, his wife, buyers, for the purchase of lot in a new housing area known as River Forest in the Boca Raton area, Palm Beach County. A copy of said contract, Petitioner's Exhibit 1, is received into the record pursuant to the Stipulation of the parties. Said contract, Petitioner's Exhibit 1, was subject to the declarations of restrictions filed by High Ridge Water Company as seller on June 28, 1976, wherein, in Paragraph 7, the developer retained the right to approve or disapprove the plans and specifications for the construction of any structure, building, fence, wall or sign in the River Forest area. A copy of said declarations of restrictions is received into the record as Petitioner's Exhibit 2, pursuant to the Stipulation of the parties. As a part of the restrictions and provisions of the contract, the purchasers, Mr. and Mrs. Montaltos, were required to use a builder selected from a list of designated builders, approved and designated by Talbott and Drake, Inc. and the High Ridge Water Company. Mr. and Mrs. Montaltos decided to build on the subject property and contacted numerous builders designated by Talbott and Drake, Inc. to submit the bids for the construction of a home on the property. On or about June 9, 1976, the McGeary partnership, as developer of the River Forest area, entered into a joint venture agreement with Group Six Developers Collaborative, Inc., whereby Group Six Developers Collaborative, Inc. purchased lots in the River Forest area and agreed to pay Talbott and Drake, Inc. a five-percent commission on all homes constructed on said lots by Group Six Developers Collaborative, Inc. in the River Forest area. A copy of said joint venture agreement is received into the record as Petitioner's Exhibit 3 pursuant to the Stipulation of the parties. Petitioner's Exhibit 3 recites on the first page of said agreement as follows: WITNESSETH: WHEREAS, by that certain Purchase Agreement intended to be executed this date, BUILDER (Group Six Collaborative, Inc.) is agreeing to purchase certain real property as set forth herein, a copy of which Purchase Agreement is attached hereto as Exhibit 1; . . . (emphasis added) WHEREAS, the parties hereto are desirous of forming a joint venture for the purpose of finan- cing, constructing and selling single family residences upon the property described in Exhibit 1; NOW THEREFORE, in consideration of the pro- mises and of the mutual covenants of the parties hereto, and for other good and valuable considera- tion, the parties agree as follows: 9. BROKER. The parties agree that TALBOTT AND DRAKE, INC., a Florida real estate brokerage corporation, shall have an exclusive listing agree- ment with BUILDER, as owner and joint venturer, for the sale of residences to be constructed pursuant to this Agreement, a copy of which Agreement is attached hereto as Exhibit 2. As a commission for their services, which shall include but not be limited to, advertising, manning model houses, showing receiving of deposits, qualifying prospects, assisting in obtaining financing for purchasers, they shall receive five percent (5 percent) of the pur- chase price, according to the provisions contained in Exhibit 2. The joint venture agreement, Petitioner's Exhibit 3, is clearly limited to houses to be constructed on the lots purchased from the McGeary partnership. The agreement does not constitute an agreement to pay Talbott and Drake, Inc. a fee of five percent of the construction cost of any custom home built by one of the designated builders on a lot purchased by an individual. When Mr. and Mrs. Montaltos received the bid statement from Group Six Developers Collaborative, Inc. there was noted thereon: "Add Real Estate Commission as per Talbott and Drake contract." A copy of said bid statement is received into the record as Petitioner's Exhibit 4 pursuant to the Stipulation of the parties. Although Mr. and Mrs. Montaltos were informed that Talbott and Drake, Inc. was to be paid a ten-percent commission by the seller on the sale of the property to Mr. and Mrs. Montaltos, they were at no time informed directly by the Respondents that the builders on the "approved list" were required to pay a five-percent commission to Talbott and Drake, Inc., nor that the said five- percent commission would be passed on to Mr. and Mrs. Montaltos when they contracted with an "approved" builder to construct a home on the subject property. On or about February 4, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated the contract for sale and purchase between High Ridge Water Company, as seller, and Donald James Kostuch and Mary Louise Kostuch, his wife, buyers, for purchase of a lot in the River Forest area of Palm Beach County. A copy of said contract is received into the record as Petitioner's Exhibit 5 pursuant to the Stipulation of the parties. Mr. and Mrs. Kostuch were required by the contract to select a builder from an approved list of designated builders approved and supplied by Talbott and Drake, Inc. and seller, High Ridge Water Company. Mr. and Mrs. Kostuch selected Snow Realty and Construction, Inc. from the list supplied by Talbott and Drake, Inc. Snow Realty and Construction, Inc. had an agreement with the McGeary partnership and Talbott and Drake, Inc. similar to that outlined in the joint venture agreement between the McGeary partnership in Group Six Developers Collaborative, Inc., Petitioner's Exhibit 3, whereby Snow Realty and Construction, Inc. agreed to pay Talbott and Drake, Inc. a five-percent commission on any residence that Snow Realty and Construction, Inc. built in the River Forest area. The bid supplied by Snow Realty and Construction, Inc. on March 7, 1977, to Talbott and Drake, Inc. contained a listing of real estate commission to Talbott and Drake, Inc. in the amount of $3,652. A copy of said bid statement is received into the record as Petitioner's Exhibit 6 pursuant to the Stipulation of the parties. The Kostuchs were advised of a five-percent fee to be paid by the builder by a salesman working for another broker who first introduced the Kostuchs to the real property in River Forest. The salesman advised the Kostuchs prior to their entry into the contract for the purchase of the lot in River Forest in which they agreed to limit their choice of builder to one approved by the McGeary partnership and Talbott and Drake, Inc. This disclosure would be sufficient to comply with the provisions of Rule 21V-10.13, Florida Administrative Code, because the fee was revealed by a salesperson involved in the transaction prior to the execution of the contract under which the favor, if any, was granted. Talbott and Drake, Inc., in addition to performing services as listing agent for the sale of homes in River Forest, also functioned as the prime developer in this project pursuant to an agreement with High Ridge Water Company and the McGeary partnership. Regarding the Montaltos' transaction, the limitation of the owners to the use of one of the approved builders constitutes the granting or placement of favor, because it narrows the competition to one of five builders out of all the builders available in the Fort Lauderdale area. The affidavits introduced indicate that, notwithstanding the absence of a written agreement, the designated builders had agreed to pay to Talbott and Drake, Inc. a fee of five percent of the cost of construction of any custom home as compensation for the efforts of Talbott and Drake, Inc. in developing the property. While compensation for these services is reasonable, it still constitutes a fee to be paid Talbott and Drake, Inc. from one of the five designated builders who would benefit from the contract. The potential adverse effect of this arrangement was to transfer a cost generally allocated to the cost of the lot to the cost of the house. Therefore, people shopping for a lot could be misled in the comparison of similar lots in different subdivisions in the absence of being advised of the fee to be paid by the builders to Talbott and Drake, Inc. However, the evidence shows no attempt to keep this fee a secret and thereby mislead buyers. The existence of such a fee is referred to in sales literature prepared by Talbott and Drake, Inc. The Kostuchs were advised of the fee by a participating salesman for another real estate company. The builders set out the fee as a separate cost item as opposed to absorbing it in general costs within their bids. While the Respondents could not produce evidence that the Montaltos' had been advised of the existence of the fee, and the Montaltos' testified that they had not been advised, this appears to be an isolated incident as opposed to a course of conduct. Notwithstanding proof of the above, no evidence is presented that the Montaltos' contracted with a designated builder to build their house, and that a designated builder paid a fee to Talbott and Drake, Inc. To the contrary, the testimony of William Talbott was that the Montaltos' had breached the terms of their contract regarding the use of a designated builder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission issue a letter of reprimand to Talbott and Drake, Inc. which, in fairness to the Respondents, should set out the specifics of the violation and to further apprise other registrants of the potential dangers of such fee arrangement. DONE and ORDERED this 4th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Charles M. Holcomb, Esquire 653 Brevard Avenue Post Office Box 1657 Cocoa, Florida 32922
The Issue Whether the certificate of registration as a salesman of Respondent, Permit 2000S, should be revoked or suspended, or whether Respondent should be fined.
Findings Of Fact The Respondent, Gary Steinman, was a licensed lot salesman, who worked as an employee of Suncoast Highland Corporation for about eight (8) years prior to October, 1978. Respondent had begun to work as a salesman at Shadow Run, a subdivision owned by Suncoast Highland Corporation, in November of 1974. Shadow Run is the subdivision involved in the Administrative Complaint filed herein. Respondent Steinman made application for renewal of his Land Sales Board license in August of 1978, but said license was not renewed for the reason that the broker bad not renewed his license. Respondent Steinman has had a suspended license since October of 1978, and has not been selling since that time. On or about October 18, 1978, a notice to show cause why the Petitioner Division should not suspend or revoke the license of Respondent or impose a fine of not more than $1,000.00 was served on Respondent Steinman. A request for an administrative hearing was entered by Respondent's Counsel. Respondent Steinman, as an employee of Suncoast Highland Corporation, attempted to sell and sold lots in Shadow Run subdivision from November of 1974, to October, 1978. Mr. and Mrs. Fred Reed purchased a lot from Respondent, built a home upon it, and moved into the Shadow Run subdivision in November of 1975. Prior to the purchase of their lot, the Reeds were furnished a colored advertising map of the subdivision by Respondent Steinman indicating that underground utilities would be furnished the subdivision, that tennis courts and a boat ramp would be built in a recreational park, that the Lake Grady Road and Bridge District would be formed, and that assessments would be levied at a future date against each lot. Respondent Steinman and the Reeds examined and viewed the large map together, and Respondent pointed out the placement of the proposed tennis court and boat ramp. Respondent told the Reeds that underground utilities and telephone lines would be provided and later pointed out black conduit pipes in the front of each lot, which he stated were to be used for said underground facilities. Respondent told the Reeds that the assessment cost indicated on the Florida Public Offering Statement dated September 16, 1974, and furnished by Respondent to the Reeds, would be a total of approximately $200.00. Subsequently, the Reeds learned that underground utilities would not be provided. At the time of this hearing, no tennis court has been constructed, and the boat ramp is little more than a marshy opening at the water's edge. The roads are said by the Reeds to be in poor repair and not constructed or maintained properly, and street signs have just recently been placed. Respondent's Exhibit 2 is a letter dated November 30, 1978, from an engineering firm stating that part of the streets of the subdivision were constructed in accordance with 1973 plans and were up for final inspection. At the time of this hearing the roads had not been accepted by the County. The Reeds were told that the building restrictions would be enforced, but said restrictions were violated while Respondent Steinman was a member of the approving board. A house was constructed in the subdivision that violated the restrictions but was approved by Respondent Steinman, who was a member of the Architectural Board of Shadow Run. The Architectural Board at that time consisted of three (3) members: the President of Suncoast Highland Corporation, an engineer employed by the corporation, and Respondent Steinman. Similar representations as to recreational facilities and underground utilities and telephone wires as were made to the Reeds were made to John Castellana, a purchaser and home owner in Shadow Run. Mr. Castellana was told by Respondent Steinman that a dirt dike in the lake would be removed, but at the time of this hearing said dike had not been removed. Mr. Castellana was told that the assessment on his lot by the Lake Grady Road and Bridge District would be much less than his estimated total of $600.00 or $700.00. Similar representations as to recreational facilities, underground utilities and telephone lines, and assessments were made by Respondent Steinman to James Dovin, who purchased two (2) lots in April of 1975, from Respondent upon which to build a house. Mr. Dovin had not built his house at the time of this hearing and has filed a suit to require Suncoast Highland Corporation to buy back from him one lot. Mr. Dovin's other lot was bought back because of a buy-clause and lack of an offering statement. Similar representations were made to Phillip Midulla, who bought two lots in May of 1975, and built a home, and to Mrs. Cherie Pacheco. Mrs. Pacheco was told by Respondent Steinman that there would be nature trails and a concrete boat ramp. She was furnished a receipt for the required HUD report but not the report itself. Mrs. Pacheco had read the public offering statement and was not misled by Respondent Steinman into believing the assessment would be only $100.00 to $200.00. Mr. Chester Fennell, who purchased a lot in February of 1976, and began construction of his home the following May, was told by Respondent Steinman that Lake Grady was completely private and for the use of the subdivision home owners, that the above-ground utilities then in place were temporary in nature, and that the roads would soon be accepted by the County. Mr. Fennell's understanding from Respondent was that the assessment would be at most $200.00 or $300.00, and that he would be assessed only after the development was completed. Mr. Alfred Vetrano purchased a lot from Respondent, and similar representations were made to him as to the recreational facilities, underground utilities, and lot assessment. Mr. Vetrano was also told that the earthen dike across Lake Grady, which was very close to his backyard and blocked his view of the lake, would be removed within a few months. Mr. Vetrano relied upon the representations of Respondent Steinman and purchased the lot, but the dike has not been removed as promised. Respondent Steinman later told Mr. Vetrano that a permit could not be obtained to remove the dike, but Mr. Vetrano was informed by the Southwest Water Management District that a permit could be obtained upon payment of $16.00. Mr. Vetrano had also been told that the subdivision would have a children's playground, but no playground exists at the time of this hearing. Peter Scaglione, employed as Counsel for Suncoast Highland Corporation since August of 1976, was produced as the only witness for Respondent. The representations made by Respondent Steinman, which are the subject matter of this hearing, were made to purchasers between late 1974, and late 1978. Mr. Scaglione testified that Suncoast Highland Corporation will soon be constructing a tennis court and another court when 400 lots are sold, that the corporation will construct a picnic area, and that some reconstruction will be done on the boat ramp, providing a proposed agreement is entered into with the Shadow Run Homeowners Association. Respondent Steinman's employer, Suncoast Highland Corporation, represented by Mr. Scaglione, began receiving complaints about the representations concerning recreational facilities and other misrepresentations involving the Shadow Run subdivision in February of 1977. Mr. Scaglione was familiar with six (6) of the witnesses for the Petitioner Division and served as "middleman" between the corporation and the Shadow Run Homeowners Association, receiving for the corporation the complaints about Shadow Run and Respondent Steinman. Mr. Scaglione testified that the assessment on the lots made by the Road and Bridge District was about $4,500.00 on the platted lots and $1,300 on the unplatted land. Because of the complaints of misrepresentation and fraud on the part of Suncoast Highland Corporation, Shadow Run, and Respondent Steinman, the assessment on each lot was reduced from $4,480.52 to the sum of $975.00, to be paid either in a lump sum or amortized over a period of approximately twenty- eight (28) years. This compromise was worked out some four (4) years after the lots began to be sold in Shadow Run. A plan for correcting deficiencies in the roads of Shadow Run was presented for the fourth or fifth time to the Road and Bridge District by the owner of the subdivision a few days before this hearing, and it was learned that the County had inspected the roads and could not approve them. There were still thirteen (13) deficiencies to be corrected before approval of the roads would be considered. Mr. Scaglione had no personal knowledge of the selling methods of Respondent Steinman and had not worked with Respondent. Respondent Steinman testified in his own behalf, quoting what was told to him by Mr. Peterson, the President of Suncoast Highland Corporation, and a Mr. Estep, an engineer, but no witnesses were called to corroborate Respondent's statements. Respondent denied that he had told purchasers that the total assessment would be approximately $100.00 to $700.00. He stated that after some two (2) years he stopped telling prospective buyers that there would be underground utilities, having learned in January of 1975, that there would be none. Respondent testified that he had furnished the Florida Public Offering Statement to all prospective purchasers, and that he knew of its contents, however said Statement is inconsistent with the representations of Respondent. Respondent Steinman acknowledged that there were two (2) home owners on Lake Grady whose homes were not in Shadow Run. This allowed nonresidents of Shadow Run entrance to the lake, and therefore the lake was not a privately owned lake. Respondent's main answer to the complaints against him was that he believed the representations of the President of Suncoast Highland Corporation and its engineer, and that the things Respondent told prospective buyers were true. The various public offering statements on Shadow Run filed with the Petitioner Division did not provide information as to whether the utilities would be above ground or underground. The public statements indicated that recreational facilities are in Brandon, within eight (8) miles of the subdivision. The promotional brochure, an attractive blue and yellow folder used to promote sales and either given to prospective purchasers or placed in the sales office where it can be easily secured, shows park and recreational areas on a large map of Shadow Run. The first brochure was revised, and the map of the revised brochure shows a portion of the lake as not included in the subdivision but a more extensive park area. The brochure states there will be protective restrictions and all roads will be paved and curbed, but unlike the first brochure the map shows outside access to the lake. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, Gary Steinman, be reprimanded and his license be suspended for a period of six (6) months from the date hereof. DONE and ORDERED this 12th day of September, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William A. Hatch, Esquire John W. McWhirter, Jr., Esquire Department of Business 1776 Exchange National Bank Building Regulation Post Office Box 2150 725 South Bronough Street Tampa, Florida 33601 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, Petitioner, vs. DOCKET NO. 78183RS CASE NO. 78-2210 GARY STEINMAN, (Salesman's Certificate of Registration - Permit No. 2000S issued 10-17-77) Respondent. /
The Issue Whether the specifications set forth in Respondent's Invitation To Bid for Lease No. 590:2029 are in accordance with law.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Department of Health and Rehabilitative Services (Department) determines space need annually pursuant to a letter of agency staffing, primarily generated as a result of legislatively allocated new positions. Based on the letter of agency staffing showing the need for additional office space in the Inverness, Florida service area of the Department's District Three, the Department caused an ITB to be advertised regarding Lease No. 590:2029 seeking some 19,373 square feet of office space, plus of minus 3%. The Petitioners presently lease office space to the Department in the Inverness, Florida, District Three service area. This office space is located within the preferred zone set forth in Attachment B to the ITB. In addition to the presently leased space, the Petitioner intends to offer additional space within the preferred area. The Department's Leasing Manual HRS M 70-1 (Manual) sets out the procedure to be followed when the Department is seeking to lease office space of 2,000 square feet or more in privately owned buildings. Within this manual are the forms to be utilized for this purpose and, among other forms, is an ITB packet that contains a Bid Submittal Form (BSF) and, within the BSF is a page entitled Evaluation Criteria. The Department followed the procedure set forth in the manual in advertising for competitive bids on Lease No. 590:2029 for office space in Inverness, Florida service area of District Three and, in doing so, used the ITB packet that contains the BSF with the Evaluation Criteria page. The BSF, including the Evaluation Criteria page, is a slightly modified version of the Department of General Services' (DGS) Request For Proposal Submittal Form - BPM 4136, incorporated by reference in Rule 13M-1.015(3)(e), Florida Administrative Code, as a suggested format. The Evaluation Criteria page of the Department's BSF contains nine of the eleven evaluation criteria set forth on the evaluation criteria page of the BPM 4136, but does not place any limit on the weight of award factors as does BPM 4136 on two of the same criteria used by the Department. The Evaluation Criteria set out in paragraph C. 2. and 4. of BPM 4136 which corresponds to paragraph 1(a) and 2(c) of the Department's Evaluation page, provide that award factors for these two criteria should not exceed ten, whereas the Department does not place a limit on the award factors for any of the criteria. The two Evaluation Criteria on BPM 4136 that do not appear on the Department's Evaluation Criteria page address the availability of dining facilities and proximity of offered space to other Department activities and public services. Both the BSF and BPM 4136 are used in bidding for space in existing facilities and, therefore, require a scaled floor plan showing present configuration, with measurements that equate to the net rentable square footage using the Standard Method of Space Measurement. The BSF does not attach a "floor plan for suggested configuration of offices and rooms" as does the BPM 4136 but does provide the number, types and sizes of rooms to be placed in the existing facility. Both forms leave the final configuration of the floor plan to the successful bidder and the lessee. The Department's reasoning for not including a "suggested floor plan" is that this may reduce the number of prospective bidders due to the varied configuration of existing facilities in the bid area. The majority of the clients to be served by the Department in Citrus County, Florida reside within the preferred zone shown as Attachment B. However, there may be other areas where a lesser concentration of clients may be served by "outposting". That is, servicing those clients on a regular scheduled basis at other smaller facilities within an area outside of the preferred zone. The Department no longer requires the facility to be under one roof but how co-location is accomplished is important to the efficient utilization of services and supervision of staff. Elderly and handicapped clients experience difficulty in utilizing needed services (when more than one service is needed) because of distance between buildings. Department clients frequently utilize the services of more than one program and such multi-service utilization is projected to increase in the future. Public transportation in Citrus County, Florida is partially funded by the Department to assist its clients and is uniformly available to the clients in the Inverness services area. The Department did not prepare any studies of functional space needs, staff space needs, client needs, client demographics or client transportation needs before or after the ITB was advertised. The Evaluation Criteria did not include a factor for future expansion even though the Department's caseload is projected to increase. In accordance with the procedure set forth in the Manual an Evaluation Committee (Committee) was appointed to determine, among other things, the award factor or weight to be placed on the nine Evaluation Criteria set forth on the Evaluation Criteria page of the BSF. The committee determined the significance of the nine criteria on the Evaluation page to the Department's needs in regard to Lease No. 590-2029 and awarded a weight factor in accordance with the significance of the criteria. Those criteria most significant to the Department's needs received the highest weight. These award factors were added to the Evaluation page of the BSF at the time the ITB was advertised. No additional Evaluation Criteria were used by the Committee. There was insufficient evidence to show that Committee's action in determining the weight to be given the nine criteria was arbitrary or capricious or unlawful even though different weights had been placed on some of the same criteria in the 1988 ITB. Likewise, there was insufficient evidence to show that any of the specifications set forth in the ITB did not promote fair competition or otherwise reflect normal policy or, that the criteria were designed to favor a specific location or prospective bidder within the preferred zone. The procedure and the forms set forth in the Manual and used by the Department, including the procedure followed by the Evaluation Committee in putting together the ITB for Lease No. 590:2029, comports substantially with all substantive provisions of Chapter 13M-1, Florida Administrative Code, and more specifically with Rule 13M-1.015, Florida Administrative Code. The differences, such as they are, are not substantial, nor is there any extrinsic or intrinsic divergence from the substance of the rule such as to mislead any potential bidder who sought to address the ITB.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED that a Final Order be entered by the Department dismissing Petitioners' Formal Notice of Written Protest. DONE and ENTERED this 2nd day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6017BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings Of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. - 3. Covered in the Preliminary Statement 4. 6. Adopted generally in Findings of Fact 4 - 11, otherwise not material or a restatement of testimony and stated as a finding of fact. 7. - 8. Not material or relevant. 9. - 22. Adopted generally in Findings of Fact 4 - 11, 15, 17 and 18, otherwise not material or a restatement of testimony and not state as a finding of fact. 23. - 24. Not material or relevant. 23. - 24.*Covered in the Conclusions of Law, otherwise not material or a restatement of testimony and stated as a finding of fact. 25. - 27. Adopted in Findings of Fact 2 and 16. 28. - 31. Not material. Adopted in Finding of Fact 16, otherwise a restatement of testimony and not stated as a finding of fact. - 37. Not material or a restatement of testimony and stated as a finding of fact. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 1. 2. - 3. Not material. 4. 6. Adopted in Findings of Fact 14, 15 and 13, respectively. 7. - 9. Not material. 10. - 12. Adopted in Findings of Fact 11, 12 and 13. 13. - 15. Rejected as not being supported by substantial competent evidence in the record. 16. Adopted in Finding of Fact 13. 17. Not material. 18. Adopted in Finding of Fact 11. 19. - 22. Not Material COPIES FURNISHED: Thomas V. Infantino, Esquire Post Office Drawer 30 Winter Park, FL 32609 Arthur R. Shell, Esquire 1000 Northeast 16th Avenue Gainesville, FL 32601 Sam Powers, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Case No. - 89-6017BID
