Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility for prosecuting Administrative Complaints pursuant to chapters 455 and 489, and the rules promulgated thereunder. In September, 1983, license number CR C012950 was issued to Respondent, David A. Taylor, as the qualifying agent for Energywise Homes, Inc., 3305 S.W. 1st Court, Deerfield Beach, FL 33441. License number CR C01295p remained in effect until June 30, 1987. License number CR C012950 was delinquent and invalid from July, 1987, through May 10, 1988. In July, 1987, license number CR C012950 was placed on a delinquent status for non-renewal and considered invalid. On April 19, 1988, Respondent applied for renewal and reinstatement of license number CR C012950. Respondent's application for renewal and reinstatement was approved May 11, 1989. At that time, license number CR C012950 was changed from a qualifying business to an individual license. In April, 1988, Respondent applied to the City of Sebastian, Florida Construction Board (the "City") for an occupational license in order to obtain building permits for jobs he had contracted in that jurisdiction. License number CR C012950 was delinquent and invalid at the time Respondent applied to the City for an occupational license and permits. Respondent presented an altered license to Ms. Kathryn Nappi, the person responsible for issuing occupational licenses for the City in April, 1988, for the purpose of obtaining building permits from the City. The typeface on the license presented by Respondent to Ms. Nappi does not match either that used on the bottom portion of the same license or the copy of the licenses admitted as Respondent's Exhibit 1. Further, the date used on the altered license is not a date normally used by the Construction Industry Licensing Board. Finally, the license presented by Respondent to Ms. Nappi indicated the license was held by Respondent individually rather than as qualifying agent for Energywise Homes, Inc. The testimony of the witnesses for Petitioner was consistent and credible. The procedures followed by Ms. Nappi and her supervisor, Mr. Bruce Cooper, Director of Community Development and Building Official for the City of Sebastian, were customary procedures followed in the ordinary course of their business. Neither witness had any discernible motive for fabricating the events to which they testified. Respondent presented the altered license to Ms. Nappi sometime in April, 1988, for the purpose of obtaining building permits for the five homes to be constructed in the City. Ms. Nappi noticed that the type on the top of the license submitted by Respondent did not match the bottom portion. She brought the discrepancy to the attention of Mr. Cooper. Mr. Cooper confirmed with the Department of Professional Regulation that the license submitted to Ms. Nappi by Respondent had been altered. Mr. Cooper set up a meeting between himself, Respondent, and two detectives to ascertain Respondent's position concerning the altered license. Mr. Cooper did not believe Respondent's position and placed the matter on the agenda for the May 3, 1988, meeting of the Sebastian Construction Board (the "Board") 3/ Respondent and the owner of the five homes for which permits were being sought appeared at the May 3, 1988, meeting of the Board. The Board voted to approve the building permits subject to the issuance of a valid license by the Department of Professional Regulation. The owner requested issuance of the permits because delay was causing his investment to dwindle. The Board also considered the fact that the properties were becoming an eyesore in the City. The Board voted to approve the permits, subject to Respondent obtaining a valid license, and leave the issue of the altered license to the Department of Professional Regulation. Respondent's testimony that he did not present an altered license for the purpose of obtaining building permits from the City, and that he had never previously seen the altered license, is rejected as not credible. Such testimony is inconsistent with statements by Respondent to Mr. Cooper and at the May 3, 1988, meeting of the Board, which were admitted in evidence as exceptions to hearsay under Section 90.8C3(18). Respondent's testimony is also inconsistent with the greater weight of evidence. Financial pressures caused by previous delays in obtaining permits provided a motive for Respondent to present an altered license to obtain building permits for the five homes to be constructed in the City. Previous attempts by others to obtain building permits for five homes to be constructed in the City had been unsuccessful. Respondent made several further attempts to obtain building permits for the five homes to be constructed in the City. The delays in obtaining the permits had caused the investment of the owner of the homes to dwindle. Furthermore, the homes were becoming an eyesore for the City. Respondent committed an act of fraud, deceit, and misconduct in April, 1988, when Respondent intentionally presented an altered license to Ms. Nappi to obtain building permits for the five homes to be constructed in the City. No evidence has been presented to support a finding that Respondent altered the license presented to Ms. Nappi. However, Respondent knew or should have known that the license submitted by him had been altered, and Respondent submitted the altered license for the purpose of obtaining the needed building permits. Even without the requisite intent for fraud, deceit, and misconduct, Respondent is not exonerated. Inadvertently presenting an altered license to Ms. Nappi in April, 1988, at a time when Respondent knew his license was delinquent and invalid constitutes gross negligence and incompetence in the practice of contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting in violation of Section 489.129(1)(m). Florida Administrative Code Rule 21E-17.001 provides in relevant part: "The following guidelines Shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter. (emphasis added) * * * (19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit. (a) Causing no monetary harm to licensee's customer, and no physical harm to any person. First violation, $250 to $750 fine; repeat violation, $1,000 to $1,500 fine and 3 to 9 month suspension. Florida Administrative Code Rule 21E-17.002, describes aggravating and mitigating circumstances which may be considered in determining the penalty to be imposed in a particular proceeding. Petitioner produced no evidence of any aggravating circumstances other than the alleged violations of Sections 489.113 and 489.115. There was no evidence of monetary or other damage to the licensee's customer, actual job site violations, repetitive offenses, the number of complaints filed against Respondent, or actual damage to the licensee's customer. See Fla. Admin. Code Rule 21E-17.002(1),(2),(s),(6), and (8). Considering the absence of any aggravating factors, the length of time Respondent has practiced contracting without any complaint, the de minimis danger to the public, and the fact that the Board approved the permits sought by Respondent because of the beneficial effect the permits would have on the owner and the City, it is recommended that Respondent be fined $250. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of February, 1990. DANIEL MANRY 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 26th day of February, 1990.
The Issue The issue in this case is whether the challenged portions of Rule 14-22.012, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority as defined by Section 120.52(8), Florida Statutes.
Findings Of Fact The Parties The Respondent The Department is the state agency charged with the responsibility of building and maintaining the state’s transportation system. Each year the Department lets out hundreds of road and bridge construction projects totaling over one billion dollars. The projects range from sidewalk improvements to major bridge construction. Accordingly, there is a wide range of expertise and qualifications necessary for the different kinds of projects let by the Department in Florida. Section 337.14(1), Florida Statutes, requires any person desiring to bid on any Department construction contract in excess of $250,000 to first be certified by the Department as qualified to perform the work to be let. Pursuant to Section 337.164, Florida Statutes, the Department qualifies contractors to preserve the integrity of the public contracting process, to ensure an open and competitive environment for the benefit of the taxpayers, and to ensure a quality project in terms of public works. Pursuant to Section 337.14, Florida Statutes, persons seeking to bid on contracts in excess of $250,000 must first file an application for a Certificate of Qualification with the Department. The statute specifically authorizes the Department to enact rules addressing the qualification of persons to bid on contracts in excess of $250,000, including requirements with respect to competency, responsibility, equipment, past record, experience, financial resources, and organizational personnel of the applicant. Gregory Xanders is the State Construction Engineer. His duties include setting policy and reviewing contractor responsibility and qualifications under Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code. In conjunction with reviewing a contractor’s qualifications, the State Construction Engineer’s Office receives input from other personnel, including contract managers in the field, the Department General Counsel’s Office, the Department Inspector General’s Office, and other cities and counties who may work with the contractor. The State Construction Engineer’s Office also reviews any intended decision to deny, suspend, or revoke a contractor’s Certificate of Qualification with the Assistant Secretary of the Department. When the State Construction Engineer’s Office makes a preliminary determination that a contractor’s Certificate of Qualification should be suspended, revoked, or denied, the contractor is notified and informed of its rights to an administrative hearing to contest the intended decision under Section 120.569, Florida Statutes. The Petitioner MBI is a company which engages in road building and asphalt paving. Since the early 1980s MBI has been qualified to bid on and awarded several Department projects. Approximately 80 percent of MBI's workload involves Department projects. Pursuant to Department rules, MBI annually submits an application to renew or obtain an updated Certificate of Qualification in order to continue bidding and performing Department projects. In 1997, MBI was denied qualification to bid on Department projects for approximately ten months. However, MBI was subsequently qualified by the Department during calendar year 1999. On or about March 31, 2000, MBI filed an Application for Qualification with the Department. By letter dated May 18, 2000, the Department gave MBI notice of its intent to deny MBI’s Application for Qualification, and stated that any subsequent application would not be considered for a period of two years. The Department’s letter advised MBI that the denial of the application constituted "a determination of non-responsibility to bid on any other construction or maintenance contract" for the same period. Specifically, the letter provided: Please be advised that pursuant to Chapter 337, Florida Statutes, and Rule Chapter 14- 22, Florida Administrative Code, it is the intent of the Department of Transportation (hereinafter Department) to deny Mitchell Brothers, Inc.’s (hereinafter Mitchell Brothers) Application for Qualification dated March 31, 2000. This denial shall preclude consideration of any subsequently submitted Application for Qualification for a period of two (2) years. Additionally, this denial shall constitute a determination of non- responsibility to bid on any other construction or maintenance contract and shall prohibit Mitchell Brothers from acting as a material supplier, contractor, or consultant on any Department contract during the period Mitchell Brothers is not qualified by the Department. The Department’s Notice of Intent denied MBI’s Application based upon a determination that MBI had demonstrated "a pattern of exorbitant and false, deceptive or fraudulent statements, certifications, or materials in claims for payment," and "a lack of management expertise and continuity." By Petition for Formal Hearing dated May 30, 2000, MBI challenged the Department’s Notice of Intent to Deny MBI’s Application for Qualification. MBI’s Petition for Formal Hearing was referred to the Division of Administrative Hearings and assigned DOAH Case No. 00-2431. On September 18, 2000, the Department served on MBI a Modified Notice of Intent to Deny MBI’s application. The Modified Notice gave additional grounds for the Department’s decision to deny MBI’s Application for Qualification. Among the additional grounds for denying MBI’s Application were the following: MBI submitted false, deceptive, fraudulent, erroneous or unreasonable statements, certifications, or materials in its claims for payment to the Department, the City of Tallahassee, the Leon County School Board, and other owners; MBI submitted claims or statements for services not performed or expenses not incurred; MBI failed to avoid, diminish or otherwise mitigate the effects of construction delays; and MBI failed to reasonably cooperate with the Department’s efforts to investigate the accuracy of MBI’s delay claims and statements. On October 13, 2000, MBI filed it’s Petition Seeking Administrative Determination that Rule 14-22.012, Florida Administrative Code, is an invalid exercise of delegated legislative authority (DOAH Case No. 00-4234RX). Specifically, in paragraph 11 of its Petition, MBI alleges that the Rule enlarges, modifies, or contravenes specific provisions of the law implemented, and that the Rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency. MBI later alleged that the Department had also exceeded its grant of rulemaking authority. A three-week final hearing was scheduled to commence in DOAH Case No. 00-2431 on October 26, 2000. Shortly prior to hearing, Petitioner filed a Motion to consolidate DOAH Case Nos. 99-2431 and 00-4234RX. The Department opposed the motion based on their counsel's inability to be adequately prepared for the 00-4234RX rule challenge proceeding. In lieu, the parties agreed to temporarily break from the 00-2431 hearing during the second week and commence the rule challenge. However, on the morning of October 26, 2000, MBI filed a Notice of its Withdrawal of its Petition for Formal Hearing in DOAH Case No. 00-2431. Consequently, DOAH Case No. 00-4234RX was scheduled for hearing on November 14, 2000. Based on MBI’s Notice of Withdrawal of its Petition, an Order Closing File was entered in DOAH Case No. 00-2431 on November 1, 2000. On November 2, 2000, the Department entered a Clerk’s Order of Dismissal of MBI’s Petition challenging the denial of its Application for Qualification. "Good Cause" Defined in Section 337.16(2), Florida Statutes Section 337.16(2), Florida Statutes, provides: For reasons other than delinquency in progress, the department, for good cause, may determine any contractor not having a certificate of qualification nonresponsible for a specified period of time or may deny, suspend, or revoke any certificate of qualification. Good cause includes, but is not limited to, circumstances in which a contractor or the contractor’s official representative: Makes or submits to the department false, deceptive, or fraudulent statements or materials in any bid proposal to the department, any application for a certificate of qualification, any certification of payment pursuant to s. 337.11(10), or any administrative or judicial proceeding; Becomes insolvent or is the subject of a bankruptcy petition; Fails to comply with contract requirements, in terms of payment or performance record, or to timely furnish contract documents as required by the contract or by any state or federal statute or regulation; Wrongfully employs or otherwise provides compensation to any employee or officer of the department, or willfully offers an employee or officer of the department any pecuniary or other benefit with the intent to influence the employee or officer’s official action or judgment; Is an affiliate of a contractor who has been determined nonresponsible or whose certificate of qualification has been suspended or revoked and the affiliate is dependent upon such contractor for personnel, equipment, bonding capacity, or finances; Fails to register, pursuant to chapter 320, motor vehicles that he or she operates in this state. Section 337.16(2), Florida Statutes, authorizes the Department to deny, suspend, or revoke an Application for Qualification based upon a determination of "good cause." "Good cause" is defined by six examples specified in Section 337.16(2), Florida Statutes, but the statute further provides that "good cause includes, but is not limited to" the six circumstances specified in the statute. "Good Cause" Defined in the Rule 14-22.012, Florida Administrative Code Rule 14-22.012, Florida Administrative Code, is entitled: "Suspension, Revocation, or Denial of Qualification." Subsection (1) of this Rule provides in pertinent part: (1) The Department will, for good cause, as that term is defined in Section 337.16(2), Florida Statutes, suspend, revoke, or deny any contractor’s qualification to bid. A suspension, revocation, or denial for good cause pursuant to this rule shall prohibit the contractor from bidding on any Department construction contract for which prequalification is required by Section 337.14, Florida Statutes, and shall constitute a determination of non- responsibility to bid on any other construction or maintenance contract and from acting as a material supplier, subcontractor, or consultant on any Department contract or project during the period of suspension, revocation, or denial. As provided in Section 337.16(2), Florida Statutes, such good cause shall include, but shall not be limited to, the provisions of paragraphs (a) through (e) below. When a specific period of revocation, denial, or suspension is not specified by this rule, the period shall be based on the criteria of Rule 14-22.0141(4), F.A.C., as well as Department contractor certification activities. (a) The contractor’s Certificate of Qualification shall be denied or revoked for at least one year when it is determined by the Department that any of the following has occurred: One of the circumstances specified under Section 337.16(2)(a), (b) or (d), Florida Statutes, has occurred. Affiliated contractors submitted more than one proposal for the same work. In this event the Certificate of Qualification of all of the affiliated bidders will be revoked or denied. All bids of affiliated bidders will be rejected. The contractor made or submitted to the Department false, deceptive, or fraudulent statements, certifications, or materials in any claim for payment or any information required by any Department contract. The contractor defaulted on any Department contract or the contract surety took over any Department contract from the contractor. Rule 14-22.012(1), Florida Administrative Code, authorizes the Department to deny, suspend, or revoke a contractor’s qualification to bid based on a determination of "good cause" as that term is defined in Section 337.16(2), Florida Statutes. The term is defined by examples contained in Section 337.16(2), Florida Statutes, and in the Rule, but it is not exhaustive. In addition to the list of examples of "good cause" specified in Section 337.16(2), Florida Statutes, and Rule 14- 22.012(1), Florida Administrative Code, the Department consistently considers other criteria contained in Chapter 337, Florida Statutes, which relate to the qualifications of a contractor. Section 337.14, Florida Statutes, requires the Department to consider a contractor’s equipment, past record, experience, financial resources and organizational personnel. Other factors considered are contained in Rule 14-22.003, Florida Administrative Code, which addresses the rating of the applicant, work performance record, quality of work performed, history of payment, timeliness of completing projects, cooperative attitude, contract litigation, claims, defaults, integrity, and responsibility. Both Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code, provide the industry with sufficient guidance as to the criteria for "good cause." Responsibility A contractor bidding on projects of less than $250,000 is presumed to be responsible unless one of the circumstances specified in Rule 14-22.0141, Florida Administrative Code, occurs, in which case the contractor may be deemed "non- responsible." In addition to being "qualified," a contractor seeking to bid on projects over $250,000 must also be deemed to be "responsible." By statute, a contractor must be "responsible" as a prerequisite to being "qualified." Section 337.14(3), Florida Statutes, provides: (3) Upon the receipt of an application for certification, the department shall examine it, verify its statements when necessary, and determine whether the applicant is competent, is responsible, and possesses the necessary financial resources to perform the desired work. The Department must consider the responsibility of the contractor during the review of its Application for Qualification. If a contractor’s qualification has been denied, suspended, or revoked for "good cause," then the contractor is deemed to be non-responsible and not allowed to bid on any project. Under Section 337.16(2), Florida Statutes, the Department may determine the time period in which a contractor is deemed to be non-responsible. Period of Disqualification As to the period of disqualification, Section 337.16(2), Florida Statutes, and Rule 14-22.012, Florida Administrative Code, provide a framework of guidelines and, in some instances, detailed timeframes relating to specific circumstances. For example, Section 337.165(2)(b)1, Florida Statutes, specifically requires the Department to deny or revoke a contractor's certification for a period of 36 months when the Department determines that the contractor has been convicted of a contract crime. This statute provides a frame of reference for the Department in establishing the period of disqualification. Within the framework provided by Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code, the Department considers a period of disqualification ranging from 0 to 36 months. Rule 14-22.012, Florida Administrative Code, states that when a Certificate of Qualification is denied or revoked for any of the specified reasons in Rule 14-22.012(1)(a), Florida Administrative Code, the denial or revocation is "for at least one year." This revocation period only provides a lower limit. Rule 14-22.012(1), Florida Administrative Code, further provides: "When a specific period of revocation, denial, or suspension is not specified by this rule, the period shall be based on the criteria of Rule 14-22.0141(4), Florida Administrative Code, as well as Department contractor certification activities." Rule 14-22.0141(4), Florida Administrative Code, provides that a contractor will be "ineligible to bid on Department contracts for a period of time based on the seriousness of the deficiency." Rule 14022.0141(4), Florida Administrative Code, provides examples of factors affecting the seriousness of the deficiency. Under the Rule, the examples of factors affecting the seriousness of the deficiency include impacts on project schedule, cost, quality of work, unsafe conditions allowed to exist, complaints from the public, delay or interference with the bidding process, and the potential for repetition. It is not possible to codify in a rule the precise time period of disqualification for every single instance. Because the facts and circumstances supporting a determination of "good cause" vary, it is impracticable to compile an exhaustive list for each instance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background On August 16, 1991, respondent, Department of Professional Regulation (DPR), issued Request for Proposal No. 92-002 (RFP) to various firms inviting them to submit proposals for assisting DPR and the Florida Real Estate Commission (Commission) in the production and scoring of the Florida Real Estate and Appraisal Examination for the period beginning January 1, 1992, through June 30, 1993, with a renewal option for one to two years. More specifically, the contract called for the successful firm to develop examinations from a bank of questions provided by the Commission, administer periodic examinations, score and analyze tests, and perform other related support services. Such proposals were to filed no later than 2:00 p.m. on September 20, 1991. Thereafter, and in accordance with the RFP, a six-person committee composed of representatives of the DPR, Commission and Division of Real Estate (Division) would evaluate the proposals and make a recommendation to the Secretary of DPR, who retained final authority to award the contract. Proposals were timely filed by three firms, including petitioner, Professional Testing Service, Inc. (PTS), Applied Measurement Professionals, Inc. (AMP), and National Assessment Institute (NAI). After these proposals were evaluated by the committee, AMP was recommended for award of the contract. By a 4-3 vote, the Commission concurred with this recommendation. On October 24, 1991, the Secretary of DPR selected AMP as the recipient of the contract, and notice to that effect was posted. Citing various alleged irregularities in the review process, PTS filed its formal protest to the award of the contract on November 4, 1991. After efforts to informally resolve this dispute were unsuccessful, this proceeding ensued. The Vendors Who Submitted Proposals Petitioner is a Florida corporation with offices located at 223 Pasadena Place, Orlando, Florida. It has provided various licensure examination services to DPR for the past eighteen years. Except for a two year break in 1984 and 1985, for the last eleven years PTS has held the contract with DPR to provide licensure examination services on the real estate examination, and pending resolution of this dispute, it continues to provide such services. AMP did not intervene as a party in this cause. However, according to its proposal, AMP is a Kansas corporation with offices at 8310 Nieman Road, Lenexa, Kansas, and has been in the business of developing and administering examinations since 1984. Among other things, it now provides assistance to the State of Michigan for the real estate licensure examination. AMP maintains no offices or personnel in the State of Florida. Although NAI submitted a response to the RFP, it is not a party to this action. Located in Clearwater, Florida, with branch offices in other cities in Florida and throughout the country, NAI has provided assessment services to various state governments since 1976. It has administered the DPR contractor examination for the last fourteen years. Events Leading to the Issuance of RFP 92-002 In May 1991, DPR issued RFP 91-009 requesting proposals for assistance in the development and administering of real estate examinations. That RFP requested proposals on three components of the real estate examination services, including (a) application processing, (b) test development, grading and review, and (c) administration of the examination. Items (a) and (c) and a portion of item (b) had previously been handled by the Division, the administrative arm of the Commission. In response to RFP 91-009, proposals were filed by PTS, AMP, NAI, and two other vendors. PTS was recommended for award of the contract as to two components while AMP was recommended for the award of the contract as to one component even though its proposal had been deemed to be nonresponsive. However, DPR eventually decided to reject all proposals and issue a new RFP. The new RFP (91-002) did not call for proposals on items (a) and (c) and the test development portion of item (b) since the Division determined that it would continue to perform those functions. Even so, while RFP 91-002 was more narrow in scope of services than was 91-009, it nonetheless contained some of the same terms, conditions and requirements as did the earlier RFP. It is also noted that, with one minor exception relating to on-site grading, the scope of services under the existing contract held by PTS and those enumerated in RFP 91- 002 are the same. Prior to the time for submitting responses to RFP 91-009, the Division, whose director was designated as contract manager, and Commission conducted a pre-bid conference with interested vendors to answer questions concerning the RFP. Both RFP 91-009 and 91-002 contained an identical requirement that the successful firm "(m)aintain an office/center in the greater Orlando area." In response to a question by a vendor as to whether DPR would "accept proposals that identify Tallahassee as the office/center site for the provider's office in lieu of Orlando", the response given was "no, Orlando is the designated site." Other questions and answers concerning the same topic were as follows: Q. Would the Department consider allowing the contractor (for application processing function only) to maintain offices in Tallahassee instead of Orlando, provided that 1)regular meetings are held in Orlando, and 2) reports can be delivered to the Department's offices in Orlando? A. No. Because the application processing function relating to deficient applications must be closely coordinated with the records section, the investigative section, the legal section, administrative section of the Division of Real Estate and the Florida Real Estate Commission. Florida Statutes require that the office of the Division of Real Estate and the Florida Real Estate Commission be located in Orlando. Therefore, Divisional functions must be performed in the Orlando area. Q. Is Orlando the only site the Department will agree to, or is the Department flexible to the location if all requirements can be met from another site in the State of Florida? Orlando is the only site. The above questions and answers, together with others asked and answered at the conference, were transcribed by DPR and then furnished to all interested vendors. Since AMP filed a proposal in response to RFP 91-009, it may be reasonably inferred that AMP was privy to the above clarifying information. It is noted that there was no pre-bid conference prior to the filing of proposals in response to RFP 91-002. The RFP A copy of RFP 91-002 is found on pages 90 through 108 of petitioner's composite exhibit 1. The RFP includes sections relating to statement of need, purpose, scope of work, DPR responsibilities, provider responsibilities, general information, documents required in submitting a proposal, the proposal format, proposal rating criteria, and an appendix delineating the manner in which points would be awarded in the evaluation process. Prior to the submission of the proposals, no vendor formally challenged any provision in the RFP as being unreasonable, ambiguous, or otherwise unlawful in any respect. A number of provisions within RFP 91-002 are relevant to this controversy and are cited below. First, there is a general requirement found in Article VIII which requires all responses to be prepared in a manner consistent with the requirements of the RFP. More specifically, this article provided that Respondents must follow the proposal format as set forth under Section III in this request for proposal. The provider shall refer to the request for proposal to ensure all required information is submitted. By following the designed format of proposals, respondents will have a uniform method of presenting information helping assure complete fairness by the review team in evaluating proposals. Next, Article VII set forth those documents that were required to be submitted with the proposal. Among them was a requirement in paragraph 1 that the vendor submit "evidence that the organization is a legal entity." The purpose of this requirement was to ensure that DPR could enforce the agreement in the event the successful firm later attempted to back out of its commitment. The RFP also prescribed twenty-three major services that were within the scope of work to be provided by the successful firm. Indeed, the RFP stated in unequivocal language that "(t)he provider shall perform the following services as outlined below." (Emphasis added) Specifically, paragraphs 22 and 23 of Article III specified that the successful firm would Furnish to each candidate an unofficial grade report at the examination site at no additional cost to the candidate according to specifications approved by the Department. Maintain an office/center in the greater Orlando area. These two requirements, both unambiguous, were reasonably construed by participating vendors to mean that (a) the successful firm would furnish, at no cost to the candidate, on-site grade reports to those candidates who desired an unofficial grade after the examination was completed, and (b) the successful firm would maintain an office in the Orlando area to provide technical and other assistance to Commission and Division personnel regarding the examination. The interpretation as to paragraph 23 was especially reasonable since it conformed to clarifying information given to vendors at the pre-bid conference prior to the submission of proposals for RFP 91-009. Finally, despite DPR's contention to the contrary at hearing, the requirements in paragraphs 22 and 23 were considered material by the Division and Commission. From DPR's perspective, an important consideration was the costs to be charged both the candidate who sat for the examination and the candidate who made application but did not take the examination. This was because DPR's experience indicated that each year a large number of candidates apply for the examination but then fail to appear and sit for the examination. Indeed, during the most recent fiscal year of record, DPR had received 38,886 applications to take the various real estate and appraiser examinations but almost 3,000 did not appear. These figures were contained in RFP 91-009 and thus were available to all vendors, including AMP. Accordingly, DPR inserted a provision in the RFP directing each vendor to develop a cost schedule reflecting the cost for both the candidates scheduled for examination and the candidates who were actually examined. This material requirement was embodied in paragraph 1 of Article VI, which provided the following instructions to the vendors: The costs schedule for this proposal shall be priced on a per candidate examined for the first year and each of the option years provided. *Differences between the number of candidates scheduled for exam and the number of candidates examined shall be compensated for at a specific rate per candidate to be set forth by the provider.* (Emphasis added between *) The above provision was consistent with the manner in which the existing contract holder (PTS) had calculated its candidate costs for DPR during the preceding five years. Very simply, this meant that the proposal had to include one cost figure for candidates examined and another cost figure for scheduled candidates who did not appear. In calculating the costs for scheduled candidates, Appendix I, Section IV, page 3 of 3, required that all vendors develop a cost for services, including a "cost per candidate scheduled" to be made up of eight cost components: scan sheet costs, examination booklet production costs, scanning and microfilming costs, on-site grading costs, scoring costs, grade reporting/grade summary costs, security costs, and item bank maintenance costs. Therefore, each vendor was required to segregrate its costs per candidate into the eight prescribed categories, with the sum of those eight components representing the total costs per candidate scheduled. The Responses A copy of AMP's proposal filed on September 20, 1991, is found at pages 257 through 392 of petitioner's exhibit 1. In response to the requirement that the vendor give "evidence that the organization is a legal entity", AMP responded that it was a private stock corporation incorporated in 1982 in the State of Kansas. Although AMP represented that "a Certificate of Good Standing with the State of Kansas is available upon request," no such certificate was enclosed with its proposal. Documentation offered by PTS confirmed that AMP is not a Florida corporation, and there is no evidence to show that AMP, as an out- of-state corporation, has registered with the Department of State to transact business in the State of Florida. In its proposal, AMP provided an overall price "per candidate" but failed to differentiate between the costs incurred for candidates examined and candidates who were scheduled to take the examination but did not appear. This was contrary to the requirement in Article VI that such costs be identified for both categories and caused the proposal to be nonresponsive in a material respect. Although the RFP specifically required the vendor to set out eight cost components in developing the cost per candidate scheduled, AMP submitted nine specific costs as follows: 1. Test Development $3.72 2. Scan Sheet 0.10 3. Examination Booklet Production 2.47 4. Scanning 1.01 5. Scoring 1.05 6. Grade Tape Preparation 0.43 7. Security 0.32 8. Item Bank Maintenance 0.50 9. On-Site Grading 0.20 TOTAL $9.80 It should be noted that the first item, "Test Development" costs, which included 38 percent of AMP's total price, was not a category contained in or authorized by the RFP. Thus, the proposal was nonresponsive in this material respect. According to its proposal, AMP did not intend to maintain an office/center in the greater Orlando area. Rather, it proposed that: as an alternative to staffing an office in Orlando, AMP proposes to conduct regular monthly meetings in Orlando with the Division and key AMP project staff, typically the doctorate level Program Director and a Test Development Specialist. AMP will bring its portable computer equipment, and paper and computer files of the draft test and the item banks to these meetings. Any changes to examinations, as required by the Division, can then be immediately made in the draft tests and reviewed by the Division. It is AMP's opinion that this procedure will provide the Division with the direct responsiveness desired, and ensure efficient communication between the Division and the key project staff, without information being filtered through a lesser qualified individual in a satellite office. Additional urgent concerns can be discussed using the telephone or FAX equipment with the Program Director. (page 272, petitioner's exhibit 1) By filing this response, AMP contravened the material requirement in paragraph 23 of Article III that it maintain an office/center in the greater Orlando area. In response to the material requirement that it "furnish to each candidate an unofficial grade report at the examination site at no additional cost to the candidate according to specifications approved by the Department", AMP responded that it would: train the Department's test administration personnel to use this equipment to this end . . . . AMP's cost proposal is based on using the Department's personnel. If this is not possible, an additional per candidate fee will be determined based on using AMP personnel. Thus, AMP's response unilaterally modified the RFP requirement that AMP personnel rather than DPR personnel perform the task of providing unofficial grade reports at the examination site. Moreover, AMP's proposal did not state what its price per candidate would be if DPR enforced the RFP requirement. Under AMP's proposal, it calculated a cost of 20 cents per candidate for providing this service assuming DPR personnel were used. This was $2.27 less per candidate than the charge given by PTS ($2.47). Thus, AMP gained an economic advantage by its failure to provide on-site grading with its own personnel. Accordingly, this portion of the proposal was nonresponsive. The proposal of PTS was responsive to the RFP in all respects. This finding was not contradicted by DPR. It is noteworthy that two potential vendors, H. H. Block & Associates, Inc., a Gainesville, Florida firm, and Psychological Services, Inc., a firm located in Glendale, California, both advised DPR in writing that because of the requirement in the RFP that the successful vendor locate a center/office in the greater Orlando area, they would not be filing a proposal. The latter two vendors were obviously prejudiced by DPR's failure to advise them that it did not intend to enforce the requirement in paragraph 23 of Article III. This failure by DPR to enforce the provision also gave AMP an economic advantage over other vendors since AMP did not have to incur the costs of operating an Orlando office. The Evaluation Process The committee selected to evaluate the proposals was made up of six individuals appointed by the Secretary of DPR. It met in Tallahassee on September 30, 1991, to evaluate the proposals. The committee was chaired by Ella D. Hall, a DPR psychometrician. In accordance with the instructions in the RFP, the committee reviewed only the technical aspects of the proposals and did not review the cost data. Article IX of the RFP outlined the responsibilities of the evaluation committee and the procedure for evaluating proposals. Among other things, the committee was assigned the responsibility to: first determine if all required documents are included, that the proposal format is followed, and that all responses to the request's responsibilities of the provider are properly addressed. The cost data will not be reviewed as part of the technical evaluation. The committee utilized both a scoring guide and an evaluation guide in arriving at its recommendation. A total of 300 possible points were to be given to a vendor, of which 226 were related to technical matters. As noted above, the committee did not consider cost in its evaluation. Contrary to Article IX of the RFP, the committee did not initially determine whether the proposals were responsive. More specifically, the committee did not "first determine if all required documents (were) included, that the proposal format (was) followed, and that all responses to the request's responsibilities of the provider (were) properly addressed." According to the committee's chairperson, the committee was never told to determine if the proposals were responsive before evaluating them on their merits. Indeed, the chairperson assumed, albeit incorrectly, that someone else had previously evaluated the proposals in terms of responsiveness. As it turned out, none of the proposals were evaluated for responsiveness prior to or during the committee evaluation process. Through its chairperson, the committee issued a written report on October 9, 1991, recommending that AMP be awarded the contract. Although the committee considered the responses by AMP and PTS to be almost equal in terms of technical ratings, it gave a slight edge to AMP's proposal in the cost rating and recommended that AMP be awarded the contract. NAI was a very distant third in the evaluation process. Because of the committee's report, and AMP's announcement on October 16, 1991, as discussed below, that its price per candidate scheduled but not examined would be zero, the Commission voted 4-3 to endorse the committee's recommendation. The Secretary received the proposals in that posture. Events Occurring After the Committee Evaluation On October 4, 1991, or before the contract was awarded but after the committee evaluation was completed, AMP's president, Steven K. Bryant, sent a letter to the Secretary of DPR. The letter was received by DPR on October 9, 1991, and a copy of same has been received in evidence as petitioner's exhibit It provides in relevant part as follows: Dear Secretary Stuart: At the request of Lou Ritter, I am writing to you due to our concerns about the opportunity for our company to fairly compete for testing services business in your state. The recent rebidding of the Florida Cosmetology and Real Estate Programs have generated some serious questions in my mind as to whether or not it is in our interest to continue to respond to Florida RFPs. I hope you will investigate the following concerns and use the power of your office to correct these circumstances: The second RFP regarding real estate was clearly written to ensure that the current vendor retains the contract. The requirement that the vendor have an office in Orlando staffed by an individual whose only job would be to serve as a liaison with the Real Estate Commission makes it basically impossible for any organization based outside of the state of Florida to compete with the current vendor. An organization such as ours cannot afford to put a doctorate level individual in an office in Florida to be at the beck and call of the Real Estate Commission to answer examination development questions and economically survive. At best, we could put a clerical person in an office in Orlando who would be unable to answer any of the Commission's test development concerns. In our response to the RFP, we indicated that we would not establish an Orlando office, but would provide a doctoral level measurement expert and a test development specialist to meet once a month with the Real Estate Commission to revise the real estate examinations to their specifications using very highly qualified individuals. The second real estate RFP also requires that the examination booklets be printed and shipped to Florida examination centers within a seven day time frame, after the examinations are reviewed by the Real Estate Commission. This item was clearly written for the current vendor, which is basically photocopying examination materials as soon as the Commission provides approval on examination copy. There is no real reason why the examinations could not be reviewed and approved by the state to allow a longer time frame for printing, so that higher quality offset printed examination booklets could be prepared and shipped to Florida by a vendor residing out of state. In fact, we could provide several months of examinations in advance for the Commission's approval and avoid the crisis mode of printing which a seven day turnaround would cause. Although, we could provide the seven day turnaround through the use of overnight air carriers and the like, clearly the Real Estate Commission had in mind the current vendor when making this unreasonable requirement. * * * The letter also carries a handwritten note by the Secretary in the upper right hand corner which reads "Discussed with Lou Ritter/Steve Bryant - file 10/21". According to the Secretary, Ritter (a former Secretary of DPR) is now a consultant for AMP. The Secretary acknowledged that he spoke with Ritter and Bryant concerning the letter and advised them the agency was proceeding with the RFP. The Secretary's assertion that he followed up on the letter only to the extent that he wanted to ascertain if AMP had been unfairly penalized in the evaluation process was not contradicted. On October 16, 1991, Bryant sent a second letter on behalf of AMP to the Secretary of DPR. It read as follows: Dear Secretary Stuart: This is to confirm our telephone discussion regarding our price proposal for RFP #92-002 (sic) for Real Estate Examination Services. Since the RFP calls for AMP to provide examination booklets to the test centers the department administers, it was our intention to charge the state $9.80 per candidate tested, based on the number of answer sheets actually scored by AMP. Thus, there would not be a charge for candidates who do not appear for testing. Thank you for the opportunity to provide this information. Please let me know if there are any other questions. The above letter was solicted by the Secretary after he and Bryant spoke by telephone on or about October 15, 1991. The purpose of the letter was to allow AMP to clarify and amend its proposal which failed to include a cost for candidates who were scheduled to take the examination but did not appear. In contrast, neither PTS nor NAI were offered the opportunity to clarify or change their proposals after being filed. Thus, AMP was allowed to correct a material deviation from the terms of the RFP thereby giving it an advantage over its competitors. The contract was thereafter awarded to AMP on or about October 24, 1991. Summary of Errors in the RFP Process By failing to file evidence that it was a "legal entity", failing to file a cost per candidate scheduled but not examined, and submitting a price per candidate based on nine cost components rather than the prescribed eight, AMP failed to follow the proposal format required of all vendors by Article VIII. AMP's proposal was materially nonresponsive in four respects. First, it failed to differentiate between costs incurred for candidates examined and candidates who were scheduled but did not appear. Second, it utilized nine cost components in developing the cost per candidate scheduled instead of the eight components specified by the RFP. Third, in declining to establish an office in the greater Orlando area, AMP deviated from a material requirement. Fourth, contrary to the RFP, AMP proposed that DPR personnel rather than its own personnel provide unofficial grade reports to candidates at the examination sites. If this was unsatisfactory to DPR, AMP proposed to assess DPR an unspecified charge for providing this service. By waiving the enforcement of a material requirement (paragraph 23, Article III) after the proposals had been filed and evaluated, DPR gave a competitive advantage to AMP not enjoyed by other vendors. Further, by allowing AMP to correct a material variance from the RFP on October 16, 1991, as to the price charged for candidates scheduled but who did not take the examination, DPR gave a competitive advantage to AMP not enjoyed by other vendors. Collectively, these considerations support a finding that (a) the proposal submitted by AMP was materially nonresponsive and should be rejected, and (b) DPR created unfair competition and favoritism by waiving material requirements and allowing AMP to amend its proposal after being filed and evaluated.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is, RECOMMENDED that a final order be entered by respondent rejecting the proposal filed by Applied Measurement Professionals, Inc. in response to RFP 91- 002 and awarding the contract to one of the other vendors who filed a response. DONE and ENTERED this 3rd day of January, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of January, 1992. APPENDIX Petitioner: Partially adopted in finding of fact 1. Partially adopted in findings of fact 11, 12, 13 and 22. Partially adopted in findings of fact 6 and 7. Partially adopted in finding of fact 7. Partially adopted in findings of fact 2, 3 and 4. Partially adopted in finding of fact 24. Partially adopted in findings of fact 10 and 14. Partially adopted in findings of fact 7, 11, 17, 19 and 29. Partially adopted in findings of fact 11, 18 and 29. Partially adopted in findings of fact 12, 15, 28 and 29. Partially adopted in findings of fact 13, 16, 28 and 29. Respondent:* 1. Partially adopted in finding of fact 1. 2-3. Partially adopted in finding of fact 22. Partially adopted in findings of fact 1, 20 and 24. Partially adopted in finding of fact 24. Partially adopted in finding of fact 13. 6a. Partially adopted in findings of fact 3, 15 and 19. 6b. Rejected as being contrary to the evidence. 6c. Partially adopted in finding of fact 16. 7-8. Partially adopted in finding of fact 24. 9-10. Partially adopted in finding of fact 26. Partially adopted in findings of fact 10 and 14. Partially adopted in finding of fact 16. Partially adopted in finding of fact 17. The second sentence is specifically rejected as being contrary to the evidence. Partially adopted in finding of fact 16. Partially adopted in finding of fact 11. Partially adopted in finding of fact 18. Rejected as being unnecessary. * Respondent's proposed findings of fact included numbers 4, 5, 6, 4, 5, 6. Therefore, the second set of findings numbered 4, 5 and 6 have been renumbered 6a, 6b and 6c for purposes of this Appendix. Note - Where a proposed finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, redundant, or a conclusion of law. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Post Office Box 1116 Fort Lauderdale, FL 33302 Vytas J. Urba, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 George Stuart, Secretary Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact The Respondent, at all times material to the Administrative Complaint in this proceeding, was a land surveyor licensed by the State of Florida, having been issued license number 1305. The Respondent is also a licensed professional engineer and a licensed architect. The Petitioner is an agency of the State of Florida charged under Chapter 472, Florida Statutes, and appurtenant rules with the licensure and regulation of licensure status of land surveyors in Florida and the regulation and enforcement of their practice methods and standards. The Board of Land Surveyors published "Minimum Standards for Land Surveyors (Rule 21HH-6) effective September 1, 1951. The Respondent was unaware of the promulgation of those minimum standards. The Respondent had not attended meetings of the "Manasota" Chapter of the Florida Society of Professional Land Surveyors at which those standards were discussed and a checklist for the standards was distributed. On August 24, 1982, the Respondent prepared a land survey of a part of Lot 306, Overbrook Gardens, in Sarasota County. The survey was submitted to the Sarasota County Building Department in connection with an application for a building permit pertaining to that real property, filed on August 26, 1982. The offenses charged are alleged violations of the minimum standards with respect to that survey. The Respondent's client had delivered to him a survey prepared by Lemonde Surveying, Inc., of Port Charlotte, Florida, which was prepared on February 28, 1980. That survey contained a metes and bounds land description. The client engaged the Respondent to survey the same parcel of land with that description and provide a survey drawing to be used in conjunction with an application for the subject building permit. The survey gas not certified by the Respondent in accordance with minimum standards. The Respondent admitted this and it was undisputed that the signature and seal of fixed on the survey complied with the legal requirements enforced before the adoption of the abovementoned minimum standards, of which the Respondent was unaware. The Respondent admitted to failure to refer to all sources of information upon which the survey was predicated. The Respondent used a legal description from a previous survey provided him by Darrell Newell, the contractor who was agent for the owner of the property. The survey the Respondent submitted to the building department only showed the name of the owner. The older survey submitted by the Respondent's client was his only source of information in this regard. The parties stipulated that the allegation regarding failure to show measured distances to the nearest intersection was incorrect and that indeed the Respondent had shown the distance to the nearest intersection. The Respondent failed to show the location of a telephone company underground terminal pedestal and an abandoned wire fence of unstated dimensions which is outside the surveyed property near the north and east boundaries. The fence does not encroach on the surveyed property at all. The telephone terminal pedestal is approximately one foot or less in height, located just inside the northerly boundary of the property, approximately midway between the two northerly corners. The telephone terminal was not visible at the time of the survey due to high grass, weeds, and undergrowth covering the property when the fieldwork was conducted by the Respondent's survey party chief. The triangular parcel of property involved was located with reference to an established, identifiable real property corner. All three corners were monumented prior to the survey by the Respondent, so that the location of boundaries near the abandoned, partial, non-encroaching fence could be established with reasonable certainty. On September 15, 1932, personnel of the county building department charged with the responsibility of issuing the building permit for the property requested advice with regard to the efficacy of Respondent's survey from Mr. Emerson, the County Surveyor, who testified for the Petitioner. Mr. Emerson spoke with the Respondent by phone and mailed him copies of the "minimum standards" and the "Surveyor's Checklist" of the Manasota Chapter of the Florida Society of Professional Land Surveyors, which relates to those minimum standards in the rule cited below. The Respondent then promptly and voluntarily prepared a new survey which fully complied with those minimum standards which he had at that point first become aware of, and the building permit was duly issued to the Respondent's client. The Respondent's client's interests were not shown to be prejudiced and the complaint to the Board of Land Surveyors did not emanate from the Respondent's client, but rather from Mr. Emerson of-the county building department, who did not bother to consult the Respondent or obtain his explanation prior to lodging the complaint with the Board. The survey originally submitted to the Sarasota Count Building Department would have been adequate support for the issuance of the building permit before adoption of the minimum standards. The survey was shown to be totally adequate in terms of its substance and reflection of technical surveying competence, as opposed to the particular format prescribed by the minimum standards. This is the first disciplinary action ever taken against the. Respondent as a land surveyor licensee, and the Respondent's practice of his profession has always been characterized by a high degree of technical competence and professional integrity.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent, William J. Lindh, be accorded the penalty of a private, written reprimand for violation of Rule 21HH-6.03(1) and (6),,Florida Administrative Code, and Section 472.033(1)(g) , Florida Statutes (1951) , and that the Administrative Complaint, in all other respects, be dismissed. DONE ADD ENTERED this 31st day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1983. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles J Cheves, Esquire Cheves & Rapkin 341 West Venice Avenue Venice, Florida 33595 Allen R. Smith, Jr., Executive Director Board of Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NO.: 83-512 vs. LICENSE NO: 1308 WILLIAM J. LINDH, Respondent. /
The Issue The central issue in this case is Petitioner's challenge to part III of the licensure examination as set forth in his letter dated September 8, 1994.
Findings Of Fact Petitioner, Robert E. Rosser, is a candidate for licensure as a general contractor. Petitioner has taken the examination to become a licensed general contractor consecutively over the last four years. As a result of the twelve attempts at the examination, Petitioner has passed parts I and II on two separate test dates. In his attempts to pass the examination Petitioner has enrolled in and studied for the examination with two approved construction schools. Petitioner scored a 68 on part III of the general contractor's examination for the June 16, 1994 test date. Petitioner timely challenged questions related to part III (Project Management) of the general contractor's examination given on June 16, 1994. Petitioner attended a review session and claimed that as to question 2 his scratch sheet from the examination demonstrates he had used formulas properly and that he had inadvertently marked the incorrect response on the answer grid sheet. The minimum score required to pass part III of the examination was 70. For each of the challenged questions in part III (2, 4, 7, 9, 11, 17, 18, and 20) Respondent presented competent evidence to support the correct answer as scored by the Department. The Petitioner did not present credible evidence to dispute the accuracy of the answers which had been deemed correct by the Department. Based upon those answers, the Petitioner's score sheet was tabulated correctly. The questions challenged were clearly and unambiguously worded and contained sufficient factual information to reach a correct answer. The examination was open book and applicants were allowed to use reference materials. All current techniques were considered before the correct answer was chosen. All knowledge needed to reach a correct answer was within a candidate's expected range of expertise. The Department's scoring of part III was not arbitrary, capricious, or devoid of logic. For each of the challenged questions, the correct answer was scored at a higher percentage than the answers marked by Petitioner. In fact, for question 4, for example, 79 percent of the examinees scored the correct answer while only 3 percent marked the same answer as Petitioner.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business and Professional Regulation, Bureau of Testing enter a final order dismissing Petitioner's challenge to the general contractor's examination. DONE AND RECOMMENDED this 23rd day of January, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5214 Rulings on the Petitioner's proposed findings of fact: Petitioner did not number the paragraphs denoted as "STATEMENT OF FACTS AND FINDINGS". The lettered paragraphs are addressed as listed; but where no letter identified the paragraph, the rulings are as to the paragraphs in the order of presentation. Paragraph [A] is accepted. Paragraph [B] is accepted to the extent it identifies Petitioner as a candidate otherwise rejected as not supported by the weight of the credible evidence. Petitioner's citation to Rule 21E-16.005 is an error. It is accepted that the minimum passing grade for the challenged part is 70 percent out of 100 percent. Paragraph [C] is accepted in substance; however, Petitioner's citation to Rule 21E-16.003 is an error. The next paragraph is rejected as contrary to the weight of the credible evidence. The next paragraph is accepted as a correct statement of procedural review. The next paragraph is rejected regarding question 4 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 7 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 9 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 11 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 17 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 18 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 20 is rejected as not a statement of fact or contrary to the weight of the credible evidence. Paragraph [D] is accepted as statement of procedural information but is not supported by the evidence. Paragraph [E] is accepted as statement of procedural information but is not supported by the evidence. The next paragraph is merely an address for the Department and is not a statement of fact. Paragraph [F] is accepted as statement of procedural information but is irrelevant. Paragraph [G] is accepted as statement of procedural information but is irrelevant. The next paragraph is merely an address for the Division and is not a statement of fact. Paragraph [H] is accepted as statement of procedural information but is irrelevant. Paragraph [I] is accepted as statement of procedural information but is irrelevant. Paragraph [J] is accepted as statement of procedural information but is irrelevant. Paragraph [K] is rejected as contrary to the record in this case since an order of prehearing instruction was not entered in this case and interrogatories were not served. Paragraph [L] is rejected as irrelevant, not a statement of fact, and contrary to the record. Moreover, Petitioner's scratch sheets have been received as Petitioner's exhibit 1. Paragraph [M] is rejected as argument or contrary to the weight of credible evidence. Paragraph [N] is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph [O] is rejected as contrary to the weight of credible evidence. Paragraph [P] is rejected as contrary to the weight of credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 4 through 11 are accepted. Paragraph 1 is accepted as statement of procedural information. Paragraph 2 is accepted as to the substance but is not a statement of relevant fact. Paragraph 3 is accepted as to the substance but is not a statement of relevant fact. COPIES FURNISHED: Robert E. Rosser P.O. Box 560541 Miami, Florida 33256-0541 William M. Woodyard Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0750 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Richard Hickok Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-6310
