The Issue Whether Michael Jacob Piwko (Respondent), committed the violations alleged in the Administrative Complaint dated December 15, 2009, and, if so, what penalties should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida created by Section 20.165, Florida Statutes. Petitioner is charged with the responsibility of regulating the real estate industry in Florida pursuant to Chapters 455 and 475, Florida Statutes. As such, Petitioner is fully authorized to prosecute disciplinary cases against real estate licensees. Respondent was at the times material to this matter, the holder of a Florida real estate associate license, license number 707518, issued by Petitioner. As last known, Respondent was an active sales associate with All Star Investment Realty, Inc., 9425 Sunset Drive #180, Miami, Florida 33173. From January 2008 through May 2008, Respondent was employed as a sales associate with Enrique Piwko, the qualifying broker for All Star Investment Realty, Inc. In January of 2008, Joaquin Inigo, a buyer, sought to purchase a condominium in Tampa, Florida. He gave Respondent a deposit for the purchase, but was later advised the deal had “fallen through.” On or about May 17, 2008, Mr. Inigo executed a contract for purchase and sale seeking to acquire a second condominium, unit number 208, at 310 Crestwood Circle, Royal Palm Beach, Florida 33411. As part of the transactions with Respondent, Mr. Inigo tendered approximately $77,000.00 to Respondent to be applied to the purchase price of unit 208. Monies were tendered to Respondent directly because Mr. Inigo expected Respondent to get an employee discount related to the sale and pass that on to him. The closing date in July passed without unit 208 being conveyed to Mr. Inigo. Efforts to achieve a refund of the deposit monies were fruitless. Upon investigation of the matter, Petitioner discovered that Respondent never deposited Mr. Inigo’s funds in escrow with his broker. Petitioner did not negotiate the purchase of unit 208. Petitioner did not refund the deposit monies. All monies provided by Mr. Inigo to Respondent were for the purchase of unit 208 and were not a personal loan to Respondent. Respondent asserted in pleadings that the monies from Mr. Inigo were a personal loan. Respondent did not, however, present written evidence of the alleged loan or its terms and declined to respond to the investigatory efforts made by Petitioner. Petitioner did not present evidence regarding the cost of investigating this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Respondent in violation of the provisions of law set forth in the Administrative Complaint as alleged by Petitioner, imposing an administrative fine in the amount of $2,000.00, and imposing a suspension of Respondent’s real estate license for a period of five years. DONE AND ENTERED this 18th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2010. COPIES FURNISHED: Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Heather A. Rutecki, Esquire Rutecki & Associates, P.A. Bank of America Tower 100 Southeast Second Street, Suite 4600 Miami, Florida 33131 Roger P. Enzor, Chair Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, N801 Orlando, Florida 32801 Thomas W. O’Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, N801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this proceeding is whether the Respondents' real estate brokers licenses should be suspended, revoked or otherwise disciplined.
Findings Of Fact Respondent, Barbara Odom, is a licensed real estate broker in the State of Florida, holding license number 0189819. Ms. Odom is the owner of and the qualifying broker for Respondent, Odom Realty, Inc., located in Pensacola, Florida. Respondent, Odom Realty, Inc. is a corporation registered as a real estate brokerage company in the State of Florida, holding license number 0226080. Ms. Odom has been licensed since 1982 and has been the owner of Odom Realty, Inc., since 1983. Rita Leonard has been the corporation's bookkeeper since Ms. Odom's acquisition of the company. Previous to her employment with Odom Realty, Ms. Leonard was the financial manager in charge of a large bank's accounting and bookkeeping department. Ms. Leonard was and is highly qualified as an accountant/bookkeeper. In addition to Ms. Leonard's bookkeeping services, Ms. Odom also has Odom Realty's books and records, including the various escrow account books and records, annually audited and reviewed by her CPA. Early in the company's history Ms. Odom entered into the rental property management business. Initially, Ms. Leonard was paying clients' repair bills on that client's rental property out of the corporation's operating account. The CPA questioned whether it was appropriate to pay those bills out of the corporation's operating account and indicated that the bills should be paid out of the corporation's rental property management escrow account, #11823890431. The CPA was not sure what the appropriate bookkeeping practice should be and indicated that Ms. Leonard should check with the Florida Real Estate Commission to discover what the appropriate procedure was. Ms. Leonard called the Florida Real Estate Commission to inquire about the proper method of paying clients' repair bills. Her impression of that conversation was that client repair bills should be paid out of the escrow account regardless of whether the individual had the money in the account. After this conversation with the Florida Real Estate Commission, Ms. Leonard began paying all the clients' repair bills out of the rental property management escrow account. All such client bills were paid promptly upon the repair bill's presentation, whether or not the individual client had the money available in the escrow account. Each client was later billed for the amount not covered by the balance in that individuals' escrow account. The client billings occurred on at least a monthly basis and the majority of the rental clients remitted their payments on a monthly basis. Occasionally, one of Respondent's clients was permitted to carry a negative balance for more than a month. These carry- overs occurred in the off-season and were paid when rentals picked back up during the areas main tourist season. As a consequence of this practice, some of Respondents' clients would have negative escrow balances on their individual escrow ledger account. Respondents were under the impression that such a practice was all right as long as the corporation had money available to cover those negative balances. In fact, the corporation always had such money available, although the actual transfers of funds were never made from the corporation's operating account to the rental property management escrow account. Respondents believed this practice was tantamount to loaning the respective clients money to cover the client's negative balance until that client corrected the deficit. No client ever complained about this practice. In fact, most of Respondents' clients wanted the repair bills paid promptly so that good repair service could be maintained on that client's property. On March 15, 1990, Elaine Brantley, Petitioner's investigator, conducted an audit of all of Respondents' escrow accounts. The only account she found a problem with was the rental property management account. During that investigation, Ms. Brantley found that Respondents had a trust liability of $10,081.71 and a bank balance of $9,480.97, leaving a shortage of $600.74. Respondents, the same day and prior to Ms. Brantley leaving, transferred the amount of the shortage from the corporation's operating account to the escrow account. Ms. Brantley then explained to Ms. Odom and her bookkeeper her opinion of how the Commission wanted escrow accounts maintained. Since that time, Respondents have maintained the escrow accounts in the manner prescribed by Ms. Brantley and no longer follow their policy of maintaining negative balances on the individual ledger sheets of their clients. They now make the actual transfer of funds from the operating account to the escrow account prior to paying any bill which would take an individual client over the amount of money that client has in the escrow account. The Respondents' books and records for the rental property management account were meticulously kept and both total and individual reconciliations were completed on a monthly basis by Respondents. All the records, including the monthly reconciliations reflected the appropriate negative balances if a particular client should have such a balance. As a consequence of this method of bookkeeping, there were no discrepancies, as opposed to a total shortage, between the total reconciliations and the escrow account's bank statement. Likewise, there were no discrepancies on the individual ledger accounts. There were no discrepancies because everything was added and subtracted out according to the records being kept and the bookkeeping method used in maintaining those records. Importantly, Respondents' CPA never criticized or commented on Respondents' method of accounting and maintenance of negative balances in Respondents' escrow account. As indicated earlier, the temporary negative balances were maintained for the convenience of the customer in order to obtain better service from repairmen. In reality, Respondents' clients probably never thought about the intricacies and inner workings of the trust account in which that client's money was maintained. Given the desires of Respondents' customers, such payments and the maintenance of a negative balance on behalf of that individual client were impliedly authorized by those respective customers. However none of the clients expressly authorized Respondents to use that client's money to pay another client's repair bills. The clients' general desires on getting prompt payment of repair bills is, by itself, insufficient to establish express authorization for one client to use another client's escrow money. Without such express authority Respondents made improper disbursements from the property management escrow account in violation of Section 475.25 (1)(k), Florida Statutes. However, because of the client's general desires regarding their repair bills, the record keeping utilized by Respondents, the manner of billing and the obvious lack of any intent to defraud on the part of Respondents, there was no evidence of any fraud, misrepresentation, trick, scheme or device, or breach of trust or culpable negligence on the part of Respondents in the maintenance of their property management escrow account.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Real Estate Commission enter a final order that Respondents are guilty of one violation of Section 475.25(1)(k), Florida Statutes, and issuing a letter of guidance to Respondents for the violation. It is further recommended that the Florida Real Estate Commission enter a final Order dismissing the Counts of the Administrative Complaint charging Respondents with violations of Section 475.25(1)(b), Florida Statutes. RECOMMENDED this 28th day of December, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1990.
The Issue The issue in this case is whether Respondent is guilty of the violations alleged in the Administrative Complaint filed by Petitioner and, if so, whether Respondent's real estate license should be suspended, revoked or otherwise disciplined.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. At all times pertinent to this proceeding, Respondent Charles A. McKee was a licensed real estate broker in Florida having been issued license no. 0335079 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was c/o McKee Realty, 10157 S. Federal Hwy., Port St. Lucie, Florida 34952-5607 (the "Federal Highway Office"). On November 23, 1992, the Florida Real Estate Commission (the "Commission") entered a Final Order finding Respondent guilty of failing to timely notify the Commission of an escrow deposit dispute and, based on that violation, assessing a fine of $500 against Respondent and placing him on probation for one year with a requirement that he complete a 30 hour broker management course. Respondent's former wife, Loretta McKee, is also a licensed real estate broker, and she was a partner with Respondent in McKee Realty. McKee Realty began operating as a Century 21 franchise in approximately 1986 at the Federal Highway Office. McKee Realty maintained four separate bank accounts: a general operating account; a general escrow account; a property management operating account; and a property management escrow account. Both Respondent and Loretta McKee were signatories on all of the accounts. In January of 1993, Respondent and Loretta McKee separated. Divorce proceedings were initiated in June. During the summer of 1993, Respondent and Loretta McKee engaged in mediation in an effort to resolve the property issues between them, including the distribution of the business. While the parties were attempting to finalize a property settlement agreement, they divided their time in the office. As part of their negotiations, Respondent and Loretta McKee discussed an arrangement whereby Respondent would continue the property management portion of the business and his former wife would take over the general real estate business. Sometime in the fall of 1993, Respondent transferred all of the funds in the McKee Realty general operating account and both property management accounts to a new "property management escrow account" which he opened. Respondent transferred the funds and opened the new escrow account without the knowledge or consent of Loretta McKee, one of the brokers for McKee Realty. As a result of Respondent's actions, approximately twenty checks written to clients by McKee Realty on the old accounts were returned for insufficient funds. On November 16, 1993, Respondent, without the knowledge or consent of broker Loretta McKee (his wife), removed the property management files and office equipment from the McKee Realty Federal Highway Office and took them to the new office opened by Respondent at 1926 Port St. Lucie Boulevard in Port St. Lucie. Many of the files he removed were open or pending and his actions resulted in a great deal of confusion and uncertainty for clients. On January 10, 1994, Petitioner's Investigator Terry Addleburg inspected Respondent's new office located at 1926 Port St. Lucie Boulevard and audited the escrow/trust accounts. The audit confirmed that on November 12, 1993, Respondent closed the Century 21 McKee Realty property management escrow account #2274025969 maintained at Barnett Bank of Port St. Lucie. Respondent then reopened a new escrow account bearing the name Century 21 McKee Realty Property Management Escrow Account #3388673741 at Barnett Bank. The audit also revealed that Respondent intermingled trust funds by combining $24,227.30 from the Century 21 McKee Realty property management operating account #2274025951 with money deposited in the new property management escrow account #338867341. The new property management escrow account had a total trust liability of $44,299.35 and a reconciled bank balance of $43,498.43 indicating a shortage of approximately $800.92. Petitioner's auditor also noted that Respondent had failed to maintain the required office entrance sign at the 1926 Port St. Lucie Boulevard location. In addition, Respondent failed to register this location with the Petitioner until after Petitioner's auditor pointed out that the location had to be registered. The evidence established that a Century 21 franchise is purchased for a specific location. A franchisee is not permitted to open a new location unless it is purchased and cleared through the franchisor. Respondent opened his new office and placed a Century 21 sign on the door of that location without the authority of the franchisor. Accordingly, it is concluded that Respondent incorrectly represented he was a Century 21 franchisee at the 1926 SE Port St. Lucie Boulevard location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations alleged in Counts I, II and III of the Administrative Complaint and dismissing Count IV. As a penalty for the violations, an administrative fine of $1,500 should be imposed against Respondent, his real estate license should be suspended for 1 year followed by a two year probationary period with such terms and conditions as may be imposed by the Commission. DONE and ENTERED this 4th day of October, 1994, at Tallahassee, Florida. J. STEPHEN MENTON 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 4th day of October, 1994. APPENDIX TO RECOMMENDED ORDER Only Petitioner submitted a proposed recommended order. The following rulings are made with respect to the proposed findings of fact submitted by Petitioner. Petitioner's proposed findings of fact Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 12. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 8 and 9. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 15. Adopted in substance in Findings of Fact 3. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate Hurston North Tower #308A 400 West Robinson Street Orlando, Florida 32801 Charles A. McKee, pro se 772 SW Hibiscus Street Port St. Lucie, Florida 34983 Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of witnesses and their demeanor while testifying, documentary evidence received, the parties' joint stipulation of facts and the entire record compiled herein, I hereby make the following relevant factual findings. On May 28, pursuant to approval and authorization by the Federal Highway Administration (FHWA) and pursuant to pertinent provisions of Florida Statutes and Florida Administrative Code, FDOT received sealed bids, one of which was from Petitioner, in response to FDOT's public advertisement soliciting competitive bids for award of the contract for construction of a public works project known as Allapattah H.O.V. Station, a parking structure to be situated at the southeast corner of Northwest 12th Street and Northwest 36th Street in Miami, Florida, designated as FDOT Job Nos. 87270-3414, 87270-3519 and 87085- 3502, and as Federal Aid Project Nos. I-95-I(364)IV, ACIR-95-1(366)4 and M- 6155(2). Prior to solicitation of bids for the project, FDOT submitted plans, specifications and a pre-bid estimate to FHWA for review and approval. FHWA reviewed and approved the plans, specifications and pre-bid estimate for the project, and by separate written communications dated March 17 and April 17, FHWA authorized FDOT to proceed with solicitation of competitive bids for the project. Pursuant to that authorization and approval from FHA, FDOT caused its advertisement soliciting competitive bids for the Allapattah project to be published in newspapers of general circulation throughout the southeast and Atlantic coast states, and, in so doing, classified the Allapattah project as a public works project set aside and restricted to competitive bidding solely among qualified contractors certified as disadvantaged business enterprises. Before Petitioner submitted its bid, FDOT determined that Petitioner is a qualified contractor and certified it as a disadvantaged business enterprise, thus rendering Petitioner eligible to bid for award of the contract to construct the Allapattah project. When FDOT opened the bids it received for award of the contract to construct the Allapattah project on May 28, it was apparent to FDOT that Petitioner's bid of $15,193,048.40 was the lowest responsive bid, but that Petitioner's bid exceeded the pre-bid estimate of the cost to construct the Allapattah project by twenty-one and three tenths percent (21.3 percent). At the time FHWA approved the plans, specifications and pre-bid estimate for the Allapattah project, it was understood and agreed between FHWA and FDOT that if a contract to construct the project was awarded in the amount of the pre-bid estimate, which was $12,523,233,06, FHWA would fund the contract to the extent of $11,647,074.70 and FDOT would fund the contract to the extent of $876,158.36, and that FDOT would also fund the equal employment opportunity training required under the contract at an estimated cost of $200,353.26, thus bringing the total funds planned to be expended by FDOT to $1,076,511.62. FDOT follows a policy that provides for automatic award of the contract to the lowest responsible bidder if [the] bid is within seven percent (7 percent) of the pre-bid estimate of the cost to construct the project in question. If the bid submitted by the lowest responsible bidder exceeds seven percent (7 percent) of the pre-bid estimate of the cost to construct the project, FDOT follows a policy of reviewing that bid and the pre-bid estimate in an effort to account for the disparity between the bid and the pre-bid estimate and to determine whether the bid is or is not competitive. If FDOT finds that the bid is not competitive, it follows a policy of rejecting all bids and resoliciting bids for the project. If FDOT finds that the bid is competitive, it awards the contract to construct the project in question to the bidder who submitted that bid. Because Petitioner's bid was not within seven percent (7 percent) of the pre-bid estimate of the cost to construct the Allapattah project, following the opening of bids, FDOT contacted Petitioner and requested Petitioner to meet at FDOT's offices in Miami, Florida, to review Petitioner's bid. On June 4, representatives of Petitioner met with representatives of FDOT in FDOT's Miami offices, at which time FDOT requested Petitioner to provide FDOT a breakdown of the lump sum Petitioner quoted for the bid item entitled "Parking Garage" whereupon Petitioner did so. The breakdown which Petitioner presented to FDOT at that time showed each category of work involved in constructing the Parking Garage in accord with FDOT's plans and specifications for the project, and also showed the price applicable to each such category of work. Before receiving the above described breakdown, FDOT assured Petitioner that all such information would be held confidential and would not be published or disclosed to any other person. Upon receiving the above described breakdown, FDOT informed Petitioner that the information contained therein was sufficient to enable FDOT to complete its evaluation of Petitioner's bid. Before the meeting concluded, Petitioner informed FDOT that if any additional information was needed, to please let Petitioner know in which event appropriate efforts would be made to remotely provide such additional information to FDOT. On June 16, FDOT's Technical Review Committee and Contracts Award Committee met to decide what action to take respecting the bids it had received on May 28, for award of the contract to construct the Allapattah project. FDOT then decided: (a) to reject all bids, to reclassify the project from one that is set aside and restricted to bidding solely among qualified contractors certified as minority business enterprises to one that is open to competition from all qualified general contractors, and to re-solicit bids for the project, and (b) to request FHWA's concurrence therein. On June 17, Petitioner inquired of FDOT as to what action had been taken respecting award of the contract to construct the Allapattah project and was then informed that the foregoing decisions had been made. Petitioner then asked FDOT why it had decided to reject Petitioner's bid, whereupon FDOT stated that Petitioner's bid was rejected because, when compared with FDOT's pre-bid estimate of the cost of constructing Allapattah project, Petitioner's bid appeared unrealistically high and non-competitive. On June 19, Petitioner, filed with FDOT's clerk of agency proceedings a written notice of protest of FDOT's above described decisions. Such notice of protest was submitted within the required time and is in accord with applicable provisions of Section 120.53(5), Florida Statutes, thus stopping FDOT from taking any further action to implement its above-described decisions. In its notice of protest, Petitioner, also requested of FDOT an early opportunity to informally meet and confer respecting Petitioner's protest in an effort to amicably resolve the same on mutually acceptable terms and conditions. Notwithstanding the fact that FDOT was not to take any further action to implement its above-described decisions, by letter dated June 20, addressed to FHWA, FDOT confirmed its above-described decisions and requested FHWA to concur therewith. On June 27, FHWA expressed its concurrence with FDOT's above- described decisions. On June 30, representatives of FDOT and Petitioner met informally in FDOT's central offices in Tallahassee, Florida, at which time Petitioner presented certain information tending to show that the pre-bid estimate of the cost to construct the Allapattah project was out of date, unrealistically low and that Petitioner's bid was realistic and reasonably competitive. The meeting concluded with an understanding between the parties that FDOT would reconsider its above-described decisions and, pursuant thereto, representatives of FDOT and Petitioner would again meet in FDOT's Miami offices on July 2, to review certain documentation to be presented by Petitioner related to its bid preparation of its May 28, bid. During the July 2 meeting, FDOT asked Petitioner to provide certain additional information documenting Petitioner's preparation of its May 28 bid, whereupon Petitioner did so. As a result of the information presented by Petitioner during the June 30 meeting, FDOT realized that the pre-bid estimate of the cost to construct the Allapattah project, which was initially prepared in October, 1984, by its architectural/engineering consultant, who also designed the project, the Kaiser Transit Group, had not been updated to reflect any increase in costs attributable to inflation. Although FDOT had in February, reviewed its architectural/engineering consultant's October, 1984 estimated cost of construction and made minor adjustments thereto in the process of converting such estimate to the computerized format customarily used by its Estimates Office, FDOT did not address the impact of inflation on the estimate. Thus, following the June 30, meeting with Petitioner, FDOT decided to develop a new estimate for the project, whereupon its Estimates and Architectural Offices jointly undertook the task of considering inflationary impact. The resulting new estimate stated a cost of $14,317,608.00 to construct the project. That cost exceeded the pre-bid estimate that FDOT had used in its initial evaluation of Petitioner's bid by approximately Two Million Dollars, thus bringing Petitioner's bid within seven percent (7 percent) of FDOT's estimated cost to construct the project and causing Petitioner's bid to be subject to FDOT's automatic award criteria. On June 25, FDOT received competitive bids for award of the contract to construct another public works project known as Earlington Heights H.O.V. Station, a parking structure to be situated at Northwest 22nd Avenue and Northwest 41st Street in Miami, Florida, designated as FDOT Job Nos. 87270-3523, 87270- 3490, and 87003-3515, and as Federal Aid Project Nos. I-95-1 (352)4, ACIR-95-1(380)4 and F-030-1(33). The Earlington Heights project was also classified as a public works project set aside and restricted to competitive bidding solely among qualified contractors certified as disadvantaged business enterprises. Petitioner submitted a responsive bid in the amount of $7,449,130.04 for award of the contract to construct the Earlington Heights project, but was the second lowest bidder. The low bidder was a company known as Three-W Corporation which had previously been determined by FDOT to be a qualified contractor and had been previously certified by FOOT as a disadvantaged business enterprise eligible to bid for award of the contract to construct the Earlington Heights project. Three W Corporation's low bid for the Earlington Heights project was $7,080,000.00 and exceeded the pre-bid estimate to the cost to construct the Earlington Heights project by seventeen and three tenths percent (17.3 percent). The pre-bid estimate of the cost to construct the Earlington Heights project was initially prepared in October, 1984, by the Kaiser Transit Group, the same architectural/engineering consultant that designed and prepared the initial pre-bid estimate for the Allapattah project in October, 1984. Before soliciting bids for award of the contract to construct the Earlington Heights project, FDOT reviewed its architectural/engineering consultant's October, 1984, estimate which stated that the cost to construct the Earlington Heights project was $5,481,000.00 and increased the same approximately ten percent (10 percent) to $6,037,298.36 to reflect FDOT's estimate of the extent construction costs had increased as a result of inflation between October, 1984, and June, 1986. When FDOT and Petitioner met on June 30, FDOT was engaged in evaluating Three-W Corporation's low bid for the Earlington Heights project. FDOT then reconsidered Petitioner's low bid for the Allapattah project and found that the low bids submitted for each such project comparable in that Three-W Corporation's low bid established a cost per square foot to construct the Earlington Heights project of $ 23.02 and Petitioner's low bid established a cost per square foot to construct the Allapattah project of $22.40. Because the low bid for the Earlington Heights project also exceeded FDOT pre-bid estimate by more than seven percent (7 percent), FDOT met and conferred with representatives of Three-W Corporation to review certain information related to preparation of the bid it had submitted on June 25, for the Earlington Heights project. FDOT then decided to also develop a new estimate for the Earlington Heights project, and its Estimates and Architectural Offices did so. The resulting new estimate increased FDOT's $6,037,298.36 pre- bid estimate by approximately $1,000,000.00, thus bringing the low bid submitted by Three-W Corporation within seven percent(7 percent) of the estimated costs to construct the Earlington Heights project and causing its bid to be subject to FDOT's automatic award criteria. In successive meetings of FDOT's Technical Review Committee and Contract Awards Committee on July 16, FDOT concluded its evaluation of the low bid for the Earlington Heights project and its reconsideration of its decisions to reject all bids and re-solicit bids for the Allapattah project by deciding that FDOT's pre-bid estimates of the cost to construct both projects were out- of-date, unrealistically low, and not indicative of a reasonably competitive cost to complete either project. Three-W Corporation's bid for the Earlington Heights project and Petitioner's bid for the Allapattah project appeared realistic and indicative of reasonably competitive costs to complete each project. FDOT's decisions in the foregoing respects were confirmed in the minutes of the July 16, meetings of its Technical Review Committee and its Contract Awards Committee, and in letters dated July 18 and July 21, addressed to FHWA, wherein Respondent requested FHWA to concur in FDOT's decisions to award contracts for construction of the Earlington Heights project and the Allapattah project to Three-W Corporation and Petitioner, respectively. On July 22, FDOT was informed by FHWA that it concurred in FDOT's decision to award the contract for construction of the Earlington Heights project to Three-W Corporation, but that it did not concur in FDOT's decision to award the contract for construction of the Allapattah project to Petitioner. In so doing, FHWA stated that it did not concur in FOOT's decision to award the contract for construction of the Allapattah project because the reasons expressed in FDOT's June 30, letter to FHWA requesting it to concur in FDOT's decision to reject all bids and re-solicit bids for the project were more persuasive than the reasons given by Respondent in support of its July 21, decision to award the contract for construction of the Allapattah project to Petitioner. After receiving the July 22, letter from FHWA, FDOT informed Petitioner of what had transpired and stated that on August 18, the results of the May 28, bid opening would be formally posted and published to provide public notice that all bids submitted for award of the contract to construct the Allapattah project had been rejected and that FDOT would re-advertise the project to re-solicit bids. Petitioner then requested FDOT to ask FHWA to reconsider its July 22, decision, but FDOT refused to do so. However, FDOT then suggested that Petitioner was free to request FHWA to reconsider its July 22, decision and that if Petitioner succeeded in persuading FHWA to agree that Petitioner's bid was realistic and to agree to award Petitioner the contract for construction of the subject project, FDOT would do so. On August 18, FDOT posted its notice that all bids submitted on May 28, for award of the contract to construct the Allapattah project were rejected and that it intended to re- solicit bids. On October 1, FDOT discovered that FHWA had not received certain documentation related to FDOT's July 16 decisions to award contracts for construction of the Earlington Heights Project to Three-W Corporation and the Allapattah project to Petitioner. Accordingly, by letter dated October 1, from William F. Ventry, FDOT's Deputy Assistant Secretary for Technical Policies and Engineering Services, to P. E. Carpenter, FHWA's Division Administrator, FDOT provided such documentation to FHWA and formally requested FHWA to reconsider its decision not to concur with FDOT's decision to award the Allapattah contract to Petitioner. By letter dated October 9, from James E. St. John, FHWA's Assistant Division Administrator, to Mr. Ventry, FHWA replied to FDOT's October 1, letter stating its basis for refusing to concur with FDOT's decision to award the contract for construction of the Allapattah project to Petitioner and informed FDOT that FHWA will now deobligate the (federal) funds authorized March 17, (for construction of the project) pending your request for further Federal- aid activity on this project. Upon receiving FHWA's October 9, letter, it became apparent to FDOT that FHWA had misapprehended or overlooked certain critical facts related to FDOT's reconsideration of its decision not to award the contract for construction of the Allapattah project to Petitioner. Mr. Ventry requested Vernon E. Dixon, FDOT's Preliminary Estimates Engineer, to draft an appropriate letter to Mr. St. John, setting out the facts FHWA had apparently overlooked or misunderstood. By letter from Mr. Dixon to Mr. St. John dated October 13, FDOT presented those facts to FHWA. On October 14, Mr. Dixon met and conferred with Mr. St. John and discussed the matters addressed in the October 13, letter. At the conclusion of that meeting, Mr. St. John indicated that the information and explanation presented by Mr. Dixon had indeed caused him to finally obtain a full and complete understanding of the facts and reasoning which led FDOT to reconsider its earlier decision and to finally decide to accept Petitioner's bid and to award the contract for construction of the Allapattah project to Petitioner. Mr. St. John cautioned that he would have to consult with certain FHWA officials in Washington to determine whether FDOT's development of a new estimate of the cost to construct the Allapattah project after bids were received and opened would preclude FHWA from concurring with FDOT to award the Allapattah project to Petitioner. By letter dated October 22, from Mr. St. John to Mr. Dixon, FHWA informed FDOT that FHWA would not concur with FDOT's decision to award the Allapattah project to Petitioner, that the project is no longer authorized, and that the federal funds authorized for construction of the project have been deobligated. Although the procedure followed by FDOT in reevaluating Petitioner's bid for award of the contract to construct the Allapattah project was the same procedure it followed in evaluating the bid submitted by Three-W Corporation for award of the Earlington Heights project, FHWA refused to concur with FDOT's reconsidered decision respecting Petitioner's bid. Petitioner's bid for award of the contract to construct the Allapattah project was responsive, realistic and reasonably competitive in all material respects. Any substantial difference between the amount of Petitioner's bid and FDOT's pre-bid estimate for the Allapattah project is attributable to inflationary factors. Although FDOT has now acknowledged these facts to be true with respect to both the Allapattah project and the Earlington Heights project, FDOT has failed to implement its decision to accept Petitioner's bid and to award the contract to construct the Allapattah project to Petitioner. If FDOT had implemented its decision to accept Petitioner's bid and to award the contract to construct the Allapattah project to Petitioner, the amount of the contract would have equalled the amount of Petitioner's bid, $15,193,048.40. If FDOT implements its decision to accept Petitioner's bid and to award to Petitioner the contract to construct the Allapattah project and FDOT then obtained no more than the $11,647,074.70 in federal funds committed pre-bid by FHWA to fund construction of the Allapattah project, FDOT would have to increase its pre-bid commitment of state funds by $2,469,361.08 to provide sufficient funds to equal the amount of Petitioner's bid. If FDOT implements its decision to accept Petitioner's bid and award to Petitioner the contract for construction, and pays one hundred percent (100 percent) of the cost of construction from state funds, FDOT would have to increase its pre-bid commitment of state funds to provide sufficient funds to equal the amount of Petitioner's bid. Although Petitioner was and continues to be a qualified contractor, although Petitioner was and continues to be certified as a disadvantaged business enterprise eligible to bid for award of the contract to construct the Allapattah project, FDOT has not yet awarded that contract to Petitioner. The only reasons FD0T has stated for having not yet awarded the contract to construct the Allapattah project to Petitioner is that FHWA has not concurred with FDOT's decision to accept Petitioner's bid and to award the contract for construction of the Allapattah project to Petitioner. FDOT must have FHWA concurrence in order to receive federal funds. The federal funding participation for this project is approximately 90 percent. FHWA has deobligated federal funds for the project in question. Without federal funding, this project will probably be recycled to the bidding process as a non-set aside project. If anticipated financing is not available for one project, FDOT reviews all projects to determine if that one project warrants eliminating other projects. For those projects where federal funding constitutes such a large portion of the funding, that project reverts and competes against other projects in other funds categories because at present, State funds are consumed. This competing process will resume beginning in 1988. This prioritization process is incorporated in FDOT's 5-year plan (the plan). The plan serves not only as a work plan but also as a finance plan. The comptroller uses the plan to certify that a particular project is indeed a part of the plan and that the money has been provided for. Funds are not available if they are not provided for in the plan. If changes are to be made after the plan is published, FDOT seeks legislative concurrence with those changes and without such concurrence, the changes cannot be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: The Florida Department of Transportation enter a Final Order rejecting Petitioner's bid for Job Nos. 87270-3414, 87270-3519 and 87085-3502 and readvertise said job. RECOMMENDED this 3rd day of April, 1987 in Tallahassee, Florida. JAMES E. BRADWELL 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 3rd day of April, 1987.
The Issue Whether the Respondent, Earl Gene Burks, committed the violations alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating construction industry licensees. Such authority includes, but is not limited to, the discipline of certified general contractors. At all times material to the allegations of this matter, Respondent was a certified general contractor in the State of Florida, license number CG C047384. According to the Department's records, and at all times material to the allegations of this matter, Respondent was the qualifying agent for ANAC Services, Inc. On or about September 16, 1996, Respondent prepared and executed a proposal for work to be performed by ANAC Services, Inc., for a residential property owned by Alberto Fernandez. The proposal described the project and specified a payment plan for the owner. Although not written on the proposal, Respondent represented to Mr. Fernandez that the work would take two or three weeks (Mr. Fernandez hoped the work would be completed by his son's birthday, October 31). Additional time was needed to complete plans and obtain the proper permit. Based upon Respondent's representations, Mr. Fernandez presumed work would begin in October 1996. Based upon the representations, the terms of the proposal, and in full accordance with the payment plan, Mr. Fernandez paid Respondent an initial deposit in the amount of $2500. Respondent did not timely begin work on the Fernandez project. After complaints from Mr. Fernandez, Respondent finally went to the home in early November 1996 and represented he was prepared to begin the project. The work was never performed. Instead, Respondent decided he would not perform the work as he did not believe he and Mr. Fernandez would be able to get along. Mr. Fernandez sought to hold Respondent to the contract terms. Respondent never went back to perform the work. Eventually Mr. Fernandez sued the Respondent for the return of the $2500. In his defense Respondent claimed he had incurred expenses for plans and for the building permit. When the matter finally went to trial Mr. Fernandez received a final judgment for damages in the amount of $1,054 plus interest. This final judgment was entered on November 18, 1997. Respondent did not satisfy or otherwise discharge the Fernandez final judgment against him prior to the final hearing in this cause. When Respondent appeared for the final hearing he was granted leave to attempt settlement but was able to remit only a portion of the debt owed to Mr. Fernandez. In August 1998 Respondent's license to practice was suspended. Respondent had failed or otherwise refused to comply with the terms of a lawful order of the Construction Industry Licensing Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order revoking Respondent's license. DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 29th day of March, 1999. COPIES FURNISHED: Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Diane Snell Perera, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Seymour Stern, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Earl Gene Burks 15550 Southwest 152nd Avenue Miami, Florida 33187
Findings Of Fact Respondent Curtis E. Webb was a licensed apprentice optician from June 1, 1981, until he obtained a state license, number 2133, on October 15, 1982, to practice opticianry on his own. In order to obtain the license he now holds, respondent was obliged to pass written and practical examinations, and complete a three-year apprenticeship. The Board of Opticianry "gave Mr. Webb credit for . . . employment prior to his registering as an apprentice, which would make him complete his apprenticeship 3-82." Petitioner's Exhibit No. 1. Along with respondent, Martin Marini, the licensed optician to whom respondent was apprenticed in the spring of 1982, worked as an employee of Optical World, Inc. in Pensacola, Florida. In May of 1982, the relationship between Mr. Marini and Theodore F. Frederickson, the principal in Optical World, Inc., deteriorated, and Mr. Marini stopped coming to work. Respondent Webb continued to show up for work, however, and, when he had a question, contacted Billy H. Hammett, a licensed optician and the proprietor of Hammett Eyeglasses, Inc., a competitor located two blocks away. Mr. Hammett reported to petitioner that Optical World, Inc., was selling eyeglasses in Mr. Marini's absence. On the morning of May 18, 1982, respondent was at Optical World, Inc., practicing opticianry without supervision when petitioner's investigator, John W. Gahn, stopped in and identified himself. During the 15 minutes he waited to talk to Mr. Webb, the investigator saw him measure one person for glasses; and fit eyeglasses on another person, to whom he gave the glasses in exchange for money. Respondent admitted that Mr. Marini had not been to work for over a week and predicted, "I'm going to be the loser in this whole mess." He did not know when or if Mr. Marini would return or how to reach him. Later the day of the interview with Mr. Gahn, respondent quit work at Optical World, Inc.
Recommendation Upon consideration of all the circumstances, it is RECOMMENDED: That petitioner, reprimand respondent. DONE AND ENTERED this 9th day of December, 1983, at Tallahassee, Florida. ROBERT T. BENTON, II 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 9th day of December, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles M. Mims, Esquire Suite 255, 24 W. Government Street Pensacola, Florida 32501 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Opticianry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTICIANRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0024314 (DPR) 82-2814 (DOAH) vs. LICENSE N0S. DO 0000781 OA 0000781 CURTIS E. WEBB, Respondent. /