The Issue The issue to be determined is whether Respondent violated Subsections 489.533(1)(m)2., 489.533(1)(r), or 489.533(1)(s), Florida Statutes (2008), as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was licensed as a certified specialty contractor, having been issued license number ES 12000484. Respondent's address of record is 2210 North Monroe Street, Tallahassee, Florida 32303. Respondent is the qualifier for Signs Unlimited. Mr. Patel and his family are the proprietors of a business in Tallahassee named the Beer Stop. On or about November 13, 2008, Mr. Patel contacted Signs Unlimited regarding the manufacture and installation of signs for Beer Stop. He wanted a sign for over the door of the business, and a sign to be added to an already existing sign for the shopping plaza, near the road in front of the plaza. A sign over the door of the building simply required a new pan face. As such, it required no permit for installation. However, the plaza where Beer Stop is located had an already existing sign near the street with individual businesses listed on it. Each individual sign for the businesses advertised has a "cabinet" included on the structure, which holds the electrical connections necessary to make the sign light up and thus make the advertising more visible to passersby. Any sign with these cabinets that is over 100 square feet requires a permit and engineered drawings. Mr. Patel received from Edward Johnston, a Signs Unlimited employee and supervisor, an estimate for a structure permit, engineered windload drawings, and three hours use of a bucket truck. The estimate identified a price of $1,366.33 and did not include the cost of the signs themselves. Mr. Patel also received an estimate for similar permitting and engineering services from at least one other company. On November 19, 2008, Mr. Patel entered into a contract with Signs Unlimited for the signs he wanted. The contract listed the following items: 1) one pan face per sq. ft. (1:3' x 12') d/s, for $1,086.15; 2) two acrylic 1/8' per s. ft. at $688 each; and 3) installation, at 1 1/2 hours use of a bucket truck. With tax, the total was $2,800. Mr. Patel paid a deposit of $1,800 on November 21, 2008. The invoice dated November 19, 2008, makes no mention of a permit or engineered drawings, and the amount of installation time identified is half of that in the original estimate. Mr. Johnston asked Mr. Patel about the permit and engineering for the road-side sign, and was directed to go forward with the fabrication of the three signs and installation of the building sign only. Mr. Patel testified that he assumed the contract price on the November 19, 2008, invoice included Respondent's costs to obtain all necessary permits and everything necessary for completion of the contract. Mr. Patel's testimony to this effect is not credited. Signs Unlimited makes and installs signs. However, it is not unusual for the company to make the signs and provide them to a customer who either has them installed by someone else or installs the signs itself, or for Signs Unlimited to install signs made by other companies. In this case, it would have been feasible for the pan faces to be installed in an existing cabinet on the sign if, for example, they replaced the advertising of a prior tenant. To do so would require no permit. In this case, Signs Unlimited made and installed the pan face above the door of the business. It was not required to obtain a permit for doing so. It also fabricated the pan faces for the sign near the street and delivered them to the Beer Stop location. Signs Unlimited did not install these signs. On December 15, 2008, Mr. Patel paid the remaining balance on the invoice dated November 19, 2008. Nonetheless, a new cabinet (of lesser quality than those already included on the existing structure) was added to the sign by the road. No permit was obtained for this sign. On or about December 15, 2008, the City of Tallahassee received a complaint about the sign near the road from a competitor who had bid on the project. Anthony Maccarone, an inspector for the city, confirmed that no permit had been obtained. He also took pictures of the sign and spoke with Mr. Patel, who showed him the invoice from Signs Unlimited. Mr. Maccarone called Signs Unlimited about the sign, and issued a Stop Work Order to the owner to be posted at the site. Edward Johnston told Mr. Maccarone that Signs Unlimited installed the sign above the door but did not install the other signs. At Mr. Maccarone's request, he removed the cabinet and pan faces from the sign by the road. Both the cabinet and the pan faces were left on the sidewalk by the door of the Beer Stop. Mr. Johnston testified that he tried to contact Mr. Patel to see if he wanted the job properly engineered and permitted, and to have the signs reinstalled. However, he received no response. Mr. Patel, on the other hand, testified that he felt Signs Unlimited should have refunded him some money because not all three signs were installed. However, he admitted that he never made such a request of Signs Unlimited. He filed a complaint with DBPR instead and was waiting for a "judgment" from DBPR.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Electrical Contractors' Licensing Board enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 21st day of June, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 21st day of June, 2010. COPIES FURNISHED: LeChea C. Parson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Carrie D. Johnston Signs Unlimited 2210 North Monroe Street Tallahassee, Florida 32303 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Juanita Chastain, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On 30 April 1976 Salter Advertising Company's application to locate a sign facing north on Salter-owned property off the I-110 near the intersection of Scott and Alcaniz Streets, Pensacola, Florida, was approved (Exhibit 1). By application dated 12 November 1976 Salter requested authorization to erect a sign at the same location facing south (Exhibit 8). This application was disapproved by the District sign inspector on December 20, 1976. What happened to the original of Exhibit 8 was not disclosed at the hearing. On a duplicate original of this application, which was introduced as Exhibit 9, the disapproval on the duplicate original application was erased or whited-out and under date 5-2-77, this application was approved by the District Sign Coordinator, the supervisor of the inspector who had disapproved Exhibit 8. The copy introduced as Exhibit 8 differs from Exhibit 9 in several respects. In the first place it is a carbon copy of what appears to have been the original of Exhibit 8. The "received" stamps dated November 24, 1976, December 13, 1976, and December 21, 1976, appear at different places on Exhibits 8 and 9; Exhibit 8 contains a "returned" stamp with date of 11/15/76 which does not appear on Exhibit 9; Exhibit 9 contains a "received" stamp dated April 29, 1977 which does not appear on Exhibit 8; and Exhibit 9 shows sign to be facing both S and W, while Exhibit 8 shows sign facing S only. The reason given for disapproving Exhibit 8 contained in letter dated January 31, 1977, (Exhibit 5), was that there was inadequate space to place a sign at the location proposed because of the City of Pensacola's setback line 50 feet from the center line of Alcaniz Street. This same condition exists respecting the application approved in Exhibit 1. Accordingly, no sign has been erected at the location despite the approval of the South and West facing sign approved in Exhibit 9. In November of 1976 Respondent contacted Petitioner's sign inspector for Pensacola and arranged to meet at the site of the sign proposed in Exhibits 2 and 4. The property at this location was for sale and Respondent wanted to know if it was suitable for a sign. At this time it was customary for the official who approved the application to go to the site before the application was submitted and advise whether or not an application for a sign at the location would be approved. At the on-site meeting the inspector advised Respondent that approval for the intended sign would be forthcoming. Respondent then purchased the property, submitted the application for sign approval and erected the sign at a cost of some $12,000. The testimony, that it was customary for an applicant after receiving on-site approval, to erect the sign before receiving formal approval of its application for sign permit, was not rebutted. The sign erected by Respondent is located approximately 300 feet from the site for which Salter received approval of its application in Exhibits 1 and The I-110 is part of the interstate system.
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455, and 489, Florida Statutes. At all times material to the allegations of the Administrative Complaints, Lamar "Marty" Campbell was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Mr. Campbell readily acknowledges that he has not had training or education in construction or contracting and has never held any licenses related to any type of construction or contracting. At all times material to the allegations of the Administrative Complaints, Johnston Handyman Services did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Respondent, Lamar Campbell, resides in Gulf Breeze, Florida. After Hurricane Ivan, he and his roommate took in Jeff Johnston, who then resided in Mr. Campbell's home at all times material to this case. Mr. Johnston performed some handywork in Respondent's home. Mr. Johnston did not have a car, a bank account, or an ID. Mr. Campbell drove Mr. Johnston wherever he needed to go. At some point in time, Mr. Campbell drove Mr. Johnston to obtain a handyman's license in Santa Rosa County. Mr. Campbell did not apply for the license with Mr. Johnston and Mr. Campbell's name does not appear on this license. The license is in the name of Johnston's Handyman Services. Mr. Campbell is a neighbor of Kenneth and Tracy Cauley. In the summer of 2005, which was during the period of time when Mr. Johnston resided in Mr. Campbell's home, the Cauleys desired to have repairs done on their home to their hall bathroom, master bathroom, kitchen and laundry room. With the help of Mr. Campbell and others, Mr. Johnston prepared various lists of repairs that the Cauleys wanted performed on their home. In August 2005, Mr. Johnson and Mr. Campbell went to the Cauley's home and the proposed repairs were discussed with the Cauleys. There are documents in evidence dated August and October, 2005, which the Cauleys perceive to be contracts for the repairs to be done in their home. However, these documents are not contracts but are estimates, itemizing both materials and labor. The documents have the word "Estimate" in large bold type at the top and "Johnston Handyman Services" also at the top of the pages. The list of itemized materials includes electrical items, e.g., light fixtures and wiring. Also in evidence are documents dated August and October, 2005, with the word "Invoice" in large bold letters and "Johnston Handyman Services" at the top of the pages. Both Mr. and Mrs. Cauley acknowledge that Mr. Johnston performed the vast majority of the work on their home. However, at Mr. Johnston's request, Mr. Campbell did assist Mr. Johnston in working on the Cauley residence. Between August 5, 2005, and October 11, 2005, Mrs. Cauley wrote several checks totaling $24,861.53. Each check was written out to Marty Campbell or Lamar Campbell.1/ Mr. Campbell acknowledges endorsing these checks but asserts that he cashed them on behalf of Mr. Johnston, who did not have a bank account or identification, and turned the cash proceeds over to Mr. Johnston. Further, Mr. Campbell insists that he did not keep any of these proceeds. The undersigned finds Mr. Campbell's testimony in this regard to be credible. Work on the project ceased before it was finished and Mr. Johnston left the area. Apparently, he cannot be located. The total investigative costs, excluding costs associated with any attorney's time, was $419.55 regarding the allegations relating to Case No. 06-2764, and $151.25 regarding the allegations relating to case No. 06-3171, for a total of $570.80.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1), Florida Statutes; imposing a fine of $500 for a violation of Section 489.531(1), Florida Statutes, and requiring Respondent, Lamar Campbell, to pay $570.80 in costs of investigation and prosecution. DONE AND ENTERED this 9th day of March, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 9th day of March, 2006.
Findings Of Fact SR 37 in the vicinity of Respondent's sign is a federal-aid highway. Respondent's sign consists of panels mounted on steel pipes attached to the bed of a pickup truck which is parked daily near the intersection of Brannon Road on which Respondent's principal place of business is located. This business is not visible from SR 37 and an orange arrow on the sign points in the direction of Respondent's combined factory and store. The sign and truck on which the sign is mounted, at a recent inspection, was located 74 feet north of Brannon Road and 60 feet from an existing, permitted sign on the same side of the highway facing in the same direction. Prior to placing the sign on the pickup truck, Respondent had a fixed sign in the vicinity advertising and pointing to the combined factory and store where outdoor furniture is manufactured and sold. Removal of this unpermitted sign was demanded by DOT. The instant sign serves to replace the former sign. No permit has ever been issued for this sign. Another sign on the same side of the highway and facing in the same direction as Respondent's sign is located within 1000 feet of Respondent's sign. This other sign is a lawfully permitted sign for which tags have been issued. Respondent's owner testified that he pays the owner of the land on which he parks the truck with the sign at issue a monthly rental for the right to use the land. No written lease for use of this site has been executed. The truck providing a platform for the sign at issue is driven to the site each morning and removed at dusk each evening. Respondent contends this truck serves as a retail outlet for the outdoor furniture it makes and that such furniture is sold at the site. Respondent also contends that the site is manned at least one-half of each day. However, this testimony is not credible for the reasons below. Respondent has four employees--the owner, the owner's wife, a sales employee and a factory employee. It is the duty of the factory employee to place the truck on the site, place the furniture near the truck and at dusk remove the furniture and the truck from the site along SR 37. Neither the owner, his wife nor the sales employee man the truck at the site. This leaves the factory employee who, presumably, is the man primarily involved in assembling the furniture to be sold, to put in one-half of each day at the pick- up taking orders for furniture. Exhibit 5 consists of some 51 sales slips for furniture alleged to have been sold from the pickup from May 3 to October 25, 1986. Approximately 6 of those invoices leave blank the space headed SALESMAN. Twenty-nine of those invoices show DZ as the salesman and 17 show DS as salesman. Of those 17 sold by DS 9 sales occurred on October 11 and October 18. All of those invoices show the address of the business to be on Brannon Road. No evidence was presented regarding the identities of DZ and DS. Thomas F. Zink is President of Sunshine Patio Shops. Respondent presented Exhibit 6, an occupational license for a dealer in tangible personal property whose business is located at 553 Brannon Road. Exhibit 4 is a photograph of the truck, sign and furniture displayed alongside the truck which was submitted by Respondent. This photograph shows the furniture all connected by a chain which presumably is fastened to the truck. This has the effect of providing security from theft of the furniture. Such security would not be needed if the site is manned while the furniture is displayed.
The Issue Whether the Department of Transportation (Petitioner) may declare AMEC CIVIL, LLC, (Respondent) non-responsible for 90 days and ineligible to bid on Department contracts during that period, based upon Respondent's alleged failure to timely submit contract documents and comply with contract requirements on Contract Numbers 21349 and 21350 (Financial Project Numbers 209600-1-52-01 and 213290-1-52-01).
Findings Of Fact Respondent AMEC Civil, LLC, is a Florida corporation whose principal business is road and bridge construction. DOT is the state agency responsible for entering into contracts for the construction, improvements, and maintenance of state roads. DOT’s legislative authority includes preserving the integrity of the public contracting process and determining contractors non-responsible. §§ 337.164 and 337.16, Fla. Stat. (2006). The point in contention herein is DOT’s January 17, 2007, Letter of Intent to Declare AMEC Non-responsible. This case arises from two separate contracts Respondent AMEC entered into with Petitioner DOT to construct the interchange at Interstate 295 and Interstate 95 in Duval County, which construction project stretched over five years. AMEC has filed no challenge, pursuant to Section 120.57(3), Florida Statutes, to the specifications of either contract. AMEC waived any Section 120.57(1)(e) issues with regard to forms utilized by DOT, but which forms had not been adopted as rules in their own right. (TR-26) The interchange was comprised of two separate financial project numbers with two separate sets of plans, one using the metric form of computation and the other using the English form of computation. The two projects were bid together and were combined for purposes of the total construction. The contract and bid specification package incorporated by reference the 2000 Edition of DOT’s Standard Specifications for Road and Bridge Construction, and also included supplemental specifications for each element. Therefore, all these items became part of the contracts between the parties. The construction was supposed to be completed in 1461 days, but suffered significant delays. DOT made periodic pay estimates to AMEC on the two separate contact numbers. Contract No. 21349, Financial Project 209600-1-52-01, was the smaller project, in English Units, for which DOT paid AMEC $11,388,417.98. Contract No. 21350, Financial Project 213290-1-52-01 was the larger project, in Metric Units, for which DOT paid AMEC $98,816,947.85. AMEC’s two contracts are still open and will be closed only when all claims are resolved. DOT’s contracts provide a mechanism at the end of construction projects for a final “settling up” between the parties, recognizing that the periodic payments were only estimates of quantities installed. This mechanism, handled by DOT’s Final Estimates Office, affords the contractor and the Agency an opportunity to make a final identification of the full particulars of any payment issues within 90 days of final acceptance. This contractual “ACCEPTANCE AND FINAL PAYMENT” process, found at Section 9-9 of the Supplemental Specifications of the instant contracts, states, in pertinent part: * * * . . . The Department will pay the estimate, less any sums that the Department may have deducted or retained under the provisions of the Contract, as soon as practicable after final acceptance of the work, provided the Contractor has met the requirements of (a) through (g) below. If the Contractor fails to furnish all required Contract Documents within 90 days of the Department’s offer of final payment or request for refund of overpayment, the Department may suspend the Contractor’s Certificate of Qualification under the provision of Florida Administrative Code, 14-22. The Contractor has agreed in writing to accept the balance due or refund the overpayment, as determined by the Department, as full settlement of his account under the Contract and of all claims in connection therewith, or the Contractor, has through the use of the Qualified Acceptance Letter, accepted the balance due or refunded the overpayment, as determined by the Department, with the stipulation that his acceptance of such payment or the making of such refund does not constitute any bar, admission, or estoppel, or have any effect as to those payments in dispute or the subject of a pending claim between the Contractor and the Department. To receive payment based on a Qualified Acceptance Letter, define in writing the dispute or pending claim with full particular of all items of all issues in dispute, including itemized amounts claimed for all particulars of all items, and submit it as part of the Qualified Acceptance Letter. The Contractor further agrees, by submitting a Qualified Acceptance Letter that any pending or future arbitration claim or suit is limited to those particulars, including the itemized amounts, defined in the original Qualified Acceptance Letter, and that he will commence with any arbitration claim or suit within 820 calendar days from and after the time of final acceptance of the work and that his failure to file a formal claim within this period constitutes his full acceptance of the Engineer’s final estimate and payment. The overpayment refund check from the Contractor, if required, will be considered a part of any Acceptance Letter executed. * * * (d) The surety on the Contract bond consents, by completion of their portion of the affidavit and surety release subsequent to the Contractor’s completion of his portion, to final payment to the Contractor and agreed that the making of such payment does not relieve the surety of any of its obligations under the bond. * * * (g) The Contractor has submitted the Form FHWA-47 (formerly known as PR-47) Record of Materials and Labor on Federal-aid Projects, to the Engineer for transmittal to the FHWA. . . . (Emphasis supplied) Section 5-12.2 of the contracts provides, in pertinent part: 5-12.2 Notice of Claim. 5-12.2.1 Claims For Extra Work: . . . On projects with an original Contract amount greater than $3,000,000 within 180 calendar days after final acceptance of the project in accordance with 5-11, the Contractor shall submit full and complete documentation as described in 5-12.3. . . . By contract, a contractor’s claim is a pre-requisite to filing a circuit court action, and there is a Claims Office and a complete claims resolution procedure within DOT, including utilization of a three-member Dispute Resolution Board. Contrary to Contract Specification 9-9, AMEC filed suit against DOT prior to final acceptance of the projects. That lawsuit became Duval County Circuit Court Case 03-CA- 005462. Exactly when that lawsuit was instituted is not clear on this record, but the prefix “03,” suggests it was filed in 2003, even before AMEC made its first formal claim. (See Finding of Fact 14.) DOT’s Director of the Office of Construction, Brian Blanchard, was not aware of any prior instance of a contractor suing DOT before the issuance of a Qualified Acceptance Letter. On May 5, 2006, AMEC submitted to DOT’s Claims Office, a claim document, addressing both project numbers, allegedly pursuant to the contracts’ Section 5-12, in relation to the issue of “night work.” Apparently, AMEC felt DOT had forbidden, or put significant impediments on, AMEC’s doing “night work” on the projects in order to speed up construction by spending more on labor, so this claim involved the equivalent of time delays as well as overtime costs. On July 19, 2006, DOT issued to AMEC a single “Offer of Final Payment” authored by Terri Towers, District II Final Estimates Manager, for each of the two financial projects. This letter essentially asked what balance AMEC would accept to close the contracts. In this letter, DOT acknowledged May 5, 2006, as the date of “final acceptance of work.” The effect of DOT’s designation of May 5, 2006, as the date of final acceptance was that AMEC then had 180 days from May 5, 2006 (until November 5, 2006), to submit any and all claims, pursuant to Specification 5-12, to DOT’s Claims Office, while having 90 days from DOT’s Offer of Final Payment to submit all documents required by the contract and to state a balance AMEC would accept for each project, with all the particulars, pursuant to Supplemental Specification 9-9. Under that contract specification, AMEC's failure to timely challenge the amount(s) offered by DOT would cut AMEC off from claiming more than was offered and constituted AMEC’s agreement to take the amount DOT’s Final Estimates Office had offered on each project. Challenging the amount offered through timely filing a qualified acceptance with full particulars would not have precluded payment of any additional amounts AMEC claimed. However, within 90 days of DOT’s offer, AMEC was required either to submit a signed regular acceptance of the amount offered for each project or to submit a signed qualified acceptance of the amount offered for each project. Whichever type of acceptance AMEC elected to file, the contract required, and DOT’s July 19, 2006, Offer of Final Payment letter instructed, that AMEC’s acceptance, the surety release, and the FHWA-47 form must be filed within 90 days of the Offer of Final Payment. It is un-refuted that either a regular acceptance or a qualified acceptance is a “contract document.” Ms. Towers acknowledged that the July 19, 2006, Offer of Final Payment letter incorrectly referred to “Article 9-9 of the Standard Specifications,” when it stated, "Please be advised that this letter constitutes an offer of final payment and is being made pursuant to and subject to all requirements and conditions set out in Article 9-9 of the Standard Specifications." However, there is no material difference, for purposes of this case, between that item and Supplemental Specification 9-9, (See DOT Exhibit 10, showing revision dates and contents). Moreover, subsequent correspondence clarified which specification was involved, and no one testified that AMEC was misled or confused as to which contract specification was being invoked by DOT's July 19, 2006, letter or which specification is applicable to this case. Ms. Towers testified that the Offer of Final Payment is the last estimate of the total job and is the summary of DOT’s whole estimate for each financial project. DOT’s Offer of Final Payment dated July 19, 2006, stated, in sum, “We think that we owe AMEC nothing on No. 209600-1-52-01 and that we owe AMEC $752.63 on No. 213290-1-52- 01.” DOT’s accompanying pay estimates included categories for item descriptions, item numbers, quantities, unit price and the total payment amount to date for each financial project number. The letter, which referenced both project numbers, requested that AMEC, “Please sign and return the enclosed Letters of Acceptance to this office (one for each financial project number).” A form for AMEC to fill out on each project number was attached. The DOT forms AMEC was requested to sign (one form for each financial project number) were entitled “Acceptance on Offer of Final Payment.” They permitted AMEC to either accept the final balance payment offered by DOT or to disagree with the amount offered, stating the alternative balance AMEC believed to be due from DOT; stating the additional amount separately, with a breakdown of project number, pay item, and dollar amount; to acknowledge that by accepting payment, AMEC was not subject to any bar or estoppel, or to any effect as to those payments in dispute or which were the subject of a pending claim. The form also stated in all capital letters, “NOTE: FULL PARTICULARS OF THE ABOVE DISPUTE OR PENDING CLAIM MUST BE SUBMITTED WITH THIS ACCEPTANCE LETTER. ANY OUTSTANDING CONTRACT DOCUMENTS, INCLUDING THE 21-A, MUST BE RECEIVED BEFORE THIS PAYMENT CAN BE ALLOWED.” Blank Acceptance on Offer of Final Payment forms, with the respective project number on each of them, were attached to the Offer of Final Payment letter. Ms. Towers acknowledged that neither the Offer of Final Payment letter, nor the attached forms upon which AMEC was expected to itemize the amounts still in dispute, bore the specific words “qualified acceptance letter,” a term used in Supplemental Specification 9-9 (see Finding of Fact 10) or the term “qualified letter of acceptance.” Behind the Acceptance on Offer of Final Payment form for the English project/contract, which the July 19, 2006, Offer of Final Payment letter requested that AMEC fill-out, were DOT’s final audit, or accounting of, the amounts the Final Estimates Office believed were owed by DOT to AMEC for the English project/contract numbers. Behind the Acceptance on Offer of Final Payment forms for the Metric project/contract, which the July 19, 2006, Offer of Final Payment letter requested that AMEC fill-out, were DOT’s final audit, or accounting of, the amounts the Final Estimates Office believed were owed by DOT to AMEC for the Metric project/contract numbers. A “21-A” is a surety release form. An “FHWA-47” is a form required by the Federal Highway Administration for release of funds on a federally-funded project, such as the two projects in the instant case. It is un-refuted that each of these forms qualifies as a “contract document.” A blank DOT-approved 21-A form and a blank FHWA-47 form were supposed to be attached to, and transmitted to AMEC, with DOT's July 19, 2006, Final Offer of Payment letter, but these forms were not attached. On August 16, 2006, AMEC acknowledged receiving DOT’s Offer of Final Payment letter on August 9, 2006. On August 31, 2006, DOT responded that, due to mailing problems, the timetable for AMEC to submit the required contract documents was adjusted to 90 days from August 7, 2006. This response date for AMEC would have been November 7, 2006. DOT's August 31, 2006, letter re-stated that the FHWA-47 form and the Surety Release (Form 21-A) also must be submitted with the response. Having received nothing from AMEC in response to the July 19, 2006, Offer of Final Payment, the Final Estimates Office, on October 11, 2006, sent AMEC a Notice of Missing or Incomplete Contract Documents, advising that 60 days had elapsed since DOT’s Offer of Final Payment. DOT routinely sends this type of letter to alert contractors that the 90 days from the Offer of Final Payment in which to submit their regular acceptance or qualified acceptance and required contract documents is running out. The letter to AMEC also specifically named the 21-A and FHWA-47 forms. If the time provided by Specification 9-9 runs out without a challenge to the amount offered by DOT, then the contractor loses the opportunity to contest the amount offered. Therefore, when contractors receive DOT’s Notice of Missing or Incomplete Documents letter, they usually communicate with DOT’s Final Estimates Office or otherwise coordinate the submittal of the appropriate missing documents within the remaining 30 days allowed. DOT’s October 11, 2006, letter contained boilerplate language warning AMEC that its certificate of qualification to bid could be suspended for failure to submit the necessary documents. On October 30, 2006, AMEC submitted to DOT’s Claims Office a second claim, again addressing both project numbers, and allegedly pursuant to Contract Section 5-12, on all remaining issues besides the night work issue which had been raised on May 5, 2006. (See Finding of Fact 14.) The supporting documents for AMEC's two claims constitute 10 large notebooks, observed at final hearing but not admitted in evidence. AMEC’s Project Engineer testified that there were also five or more boxes of paper related to impact delay. It is not clear whether these boxes were or were not sent to DOT’s Claims Office with the two claims. On November 1, 2006, AMEC sent DOT a letter headed “Qualified Acceptance”, stating: This will acknowledge receipt of your letter dated August 7, 2006, and a copy of the Department’s Offer of Final Payment. We agree to accept $752.63 payment as the amount due to us under said contract with the understanding that acceptance of such payment shall not constitute any bar, estoppels, or have any effect as to those payments in dispute or those matters which are the subject of a pending claim or lawsuit. The matters which are the subject of pending claims and lawsuits are hereby adopted by reference. The lawsuit is styled AMEC Civil, LLC v. State of Florida, Department of Transportation, Duval County Circuit Court, Case No: 03-CA-005462. The Department is in possession of the complaint and other pleadings, as well as matters obtained through discovery. The documents are extremely voluminous and too burdensome to attach to this letter. All pending claims have been certified and submitted to the Department. Many of these claims have already gone through the DRB process. The Department is aware of all of AMEC’s lawsuits and pending claims, in regard to which AMEC reserves all of its rights. “DRB” stands for “Dispute Resolution Board.” AMEC had provided a copy of the voluminous documentation supporting its two claims (see Finding of Fact 27) to each of the three members of the DRB as well as to DOT’s Claims Office. Terri Towers testified that AMEC’s November 1, 2006, letter to the Final Estimates Office was not sufficient to constitute a Qualified Acceptance Letter, because it incorrectly incorporated a lawsuit and the lawsuit’s pleadings and referenced DOT’s possession of a circuit court complaint, and because it did not give a separate dollar amount for each of the two respective financial project numbers. Brian Blanchard, Director of Construction, also testified that AMEC’s letter was unacceptable for compliance with Supplemental Specification 9-9, because the letter did not give the Department a high-level view of the itemized amounts in dollars and time. Both DOT witnesses were concerned because AMEC had provided no breakdown of the dollar amount AMEC was still requesting for each respective project/contract. The purpose of Specification 9-9, is to cut off any additional requests for payment, claims, amendments to claims, or lawsuits that could raise the dollar amount specified in the qualified offer of acceptance. The statement of particulars would limit how claims might move money demands around. In short, a qualified acceptance letter is designed to work as a final cut-off of demands, and AMEC’s submittal was unclear and missing two respective “bottom lines.” Ms. Towers testified that DOT would have accepted from AMEC the filled-in Acceptance on Offer of Final Payment forms she had enclosed with her July 19, 2006, Offer of Final Payment letter (see Findings of Fact 19-21); would have accepted a summary of the 10 three–ring binders submitted with the two claims; probably would have accepted the equivalent information in another format; and would even have accepted AMEC’s November 1, 2006, Qualified Acceptance Letter, provided AMEC had submitted the final separate totals (balances) it claimed on each project and the supporting particulars for each amount by project. Mr. Blanchard understood the concept AMEC was attempting to use in its November 1, 2006, letter of “incorporation by reference,” but stated that the goal of an acceptance or qualified acceptance letter to the Final Estimates Office, as required by 9-9, was to avoid overlaps and redundancy and to limit amounts claimed, and accordingly, AMEC’s vague November 1, 2006, incorporation by reference was unacceptable. AMEC’s November 1, 2006, letter referred to “lawsuits” and “claims’ in the plural. It left Ms. Towers unsure about whether the final amount AMEC was seeking was included in the lawsuit named and further unsure about how the two claims were related to that lawsuit or possible other lawsuits. Ms. Towers did not consult DOT’s legal staff about the status of any lawsuits, but there is no certainty that even if she had consulted DOT’s Legal Section concerning the lawsuit specifically named in AMEC’s November 1, 2006, letter, she would have gotten a current “bottom line” dollar amount requested for final payment on each project. Ms. Towers knew AMEC had filed claims on May 5, 2006, and October 30, 2006, but she did not take it upon herself to go to DOT’s Claims Office in the same building and try to analyze all AMEC’s claim documents, either as they had existed when they had been submitted or as they may have been modified over time. She thought that at least one payment of about $50,000, was about to be made by DOT upon negotiations that had occurred since May 5, 2006, (ultimately, $50,000 was actually paid to AMEC in mid-2007), but how on-going negotiations might have affected the balance AMEC was willing accept for the respective projects 90 days past August 7, 2006 (November 7, 2006), was not up to Ms. Towers to ferret out. AMEC was required to clarify these amounts in writing and sign-off on them. At hearing, AMEC’s Project Engineer testified that each of AMEC’s two claims constituted “all particulars.” He also stated that both claims were covered in the single- referenced lawsuit. He further testified that AMEC’s May 5, 2006, claim clearly demanded a balance of $18,164,105.00. This amount is supported by the exhibit related thereto. However, the October 30, 2006, claim was divided into at least four sections, and although each section was totaled, the reader would have to add together the several sections’ bottom lines to get the total $51,534,615.00 claim amount. Therefore, it appears that only with such addition would even the DOT Claims Office be able to discern the fiscal extent of AMEC’s second claim. Moreover, the two claims AMEC had attempted to incorporate by reference in its November 1, 2006, letter contained at least one cross-over or redundancy. AMEC calculated a bonus amount into its May 5, 2006, claim and listed the same bonus in the October 30, 2006, claim with a caveat to the effect of “DOT, don’t pay us a second time if you paid us under the first claim.” This bonus redundancy constituted a potential five-million dollar overlap of the two claims. AMEC's Project Engineer did not know if there were any other duplications within AMEC’s two claims. Finally, the two claims each combined material concerning both project/contract numbers. Mr. Blanchard had looked at the two claims only in preparation for hearing, but he had noted a lot of duplication, “over-accounting,” overlap, and redundancy, and testified that Supplemental Specification 9-9 was designed to weed out such problems by requiring that the contractor list a total balance claimed for each project. Ms. Towers testified that AMEC did not provide the three required contract documents (a sufficient qualified acceptance letter, Form 21-A, and Form FHWA-47) within 90 days of August 7, 2006 (November 7, 2006). On November 16, 2006, Ms. Towers notified AMEC that AMEC’s November 1, 2006, letter was materially unacceptable, stating that the letter failed to comply with Supplemental Specification 9-9 (a)-(g) and: The Qualified Acceptance Letter submitted by AMEC materially failed to meet the express requirements set forth in Supplemental Specification 9-9, of the Contract as previously stated. Specifically AMEC requested to have “matters which are the subject of pending claims and lawsuits adopted by reference.” AMEC cited “Case No. 03-CA-005462” and stated that “the Department is in possession of the complaint and other pleadings.” Are the pending claims referenced by AMEC included in the cited Case No. 03-CA-005462? AMEC must clearly provide the particulars, regarding dollar amount, all issues and time being requested in order to have the Qualified Acceptance Letter properly processed. In addition, as requested in the Offer of Final Payment letter, AMEC must provide the properly executed Form 21-A (Affidavit as noted in (c) and (d) above) and Form FHWA-47 (as noted in (g) above). (Emphasis supplied) The emphasized language explicitly stated DOT’s problem with reconciling AMEC’s multiple claims with a single lawsuit as described within AMEC’s November 1, 2006, Qualified Acceptance letter. The rest of DOT’s November 16, 2006, letter also clearly enumerated the remainder of what was required under Supplemental Specification 9-9 (a) through (g), and again listed the missing 21-A and FHWA-47 forms. DOT's November 16, 2006, letter also stated that AMEC’s failure to comply with 9-9, within the 90 days provided in 9-9, was sufficient for DOT to invoke Rule 14-22.012, to suspend the contractor’s certificate of qualification, and if the certificate of qualification were already suspended, DOT would invoke Florida Administrative Code Rule 14-22.0141(a) and Section 337.16(2)(c), Florida Statutes, to declare the contractor non-responsible. The language concerning non- responsibility was apparently suggested by DOT’s Legal Section. DOT's November 16, 2006, letter closed with the language, “As 90 days have already passed, please provide the documentation as requested in the Offer of Final Payment within 14 days from receipt of this letter so we may process the pending payment." (Emphasis supplied) On November 16, 2006, DOT was still seeking 21-A and FHWA-47 forms, even though DOT now viewed the balances DOT had offered on July 19, 2006, as uncontested, due to AMEC’s failure to timely submit a qualified acceptance letter with sufficient particulars. AMEC did not return the executed 21-A and FHWA-47 forms within 14 days of DOT’s November 16, 2006, letter, so on January 17, 2007, DOT issued its Notice of Intent to Declare Non-Responsible, which is the subject of the instant case. DOT sought to declare AMEC non-responsible for only 90 days, since theirs was a first offense. DOT's January 17, 2007, letter cited AMEC’s failure to submit an Acceptance Letter, Form 21-A, and FHWA-47, within 90 days of August 7, 2006. DOT’s January 17, 2007, letter stated that the determination of non-responsibility would become "conclusive" if, within 21 days, AMEC did not either submit the required contract documents or request an administrative hearing. The decision to cite AMEC as non-responsible was made by Brian Blanchard, Director of Construction, after consultation with employees of the Office of Construction, District II personnel, the Chief Engineer, and DOT legal staff, but the January 17, 2007, letter was signed by DOT’s Chief Engineer. On February 14, 2007, DOT received a letter dated February 13, 2007, from AMEC, entitled “Offer of Final Payment.” AMEC’s February 13, 2007, letter incorporated by reference AMEC’s November 1, 2006, letter as its Qualified Acceptance Letter. The letter dated February 13, 2007, attempted to incorporate both claims into the only named lawsuit, but it also referred to actions both prior to, and since, each of AMEC’s claims had been filed. The letter again stated that “As the Department is fully aware, the documentation requested by the Department in the lawsuit is already within the Department’s possession, and constitutes several hundred boxes. The Claims themselves, also within the possession of the Department, comprise over ten three-inch ring binders, which included detailed itemization and documentation.” (Emphasis added.) This language only further complicated and undermined any attempt to incorporate other materials by reference. Attached to AMEC’s February 13, 2006, letter was a completed FHWA-47 Form and a completed Form 21-A. February 14, 2006, when the letter was received by DOT’s Final Estimates Office, was 191 days after the Offer of Final Payment (see Finding of Fact 24, counting from August 7, 2006); 90 days after DOT’s November 16, 2006, letter requesting that the executed forms be filed within 14 days; and 28 days after DOT’s January 17, 2007, letter gave AMEC another 21 days to submit the forms. On February 21, 2007, one of Ms. Towers’ subordinates sent AMEC a letter acknowledging the February 14, 2007, receipt of AMEC’s letter. This DOT letter referenced both contract numbers and both project numbers and requested that AMEC fill out and submit an attached two-page Acceptance on Offer of Final Payment form (see Findings of Fact 19-20) on Project 213290-1- 52-01. Only the second page of the two-page Acceptance on Offer of Final Payment form for Project 209600-1-52-01 was attached. The letter also stated that Form 21-A, which had been received with AMEC’s February 14, 2007, letter, was unacceptable because the accompanying power of attorney did not grant the proper authority to execute consents. No testimony was presented at hearing concerning the sufficiency vel non of the 21-A form submitted by AMEC on February 14, 2006. The most common procedure DOT employs when a contractor fails to comply with 9-9 or other DOT requirements in the execution of a contract is one in which a pre-qualified contractor is declared “not qualified,” or “de-certified.” That procedure, technically called a “suspension of qualification,” renders the previously pre-qualified contractor ineligible to bid on DOT projects. However, pursuant to Florida Administrative Code Rule 14-22.0141, a contractor who wishes to bid for the performance of construction contracts less than $250,000, or to work on any DOT maintenance project is presumed to be a responsible bidder unless DOT determines good cause exists to declare the contractor non-responsible. There was credible testimony herein that, in order to prevent a de-certified contractor from “subbing” or “supplying” on a DOT contract while disqualified, DOT uniformly follows-up its de-certification to bid with a determination that the de- certified contractor is also “non-responsible.” The credible testimony herein also shows that DOT has de-certified at least two contractors who failed to timely submit Letters of Qualified Acceptance after a job was completed. Whether or not these particular contractors also were declared non-responsible is not in this record. When DOT entered its intent to declare Respondent AMEC non-responsible on January 17, 2007, AMEC had not been pre- qualified with DOT since May 2004, and AMEC has not applied for pre-qualification/certification with DOT since May 2004. A settlement agreement regarding resolution of AMEC’s pre- qualification application from 2004, indicates that DOT agreed that “[n]o further action will be taken by the Department in relation to the May 26, 2004, Application for Qualification.” Since 2004, AMEC also has not attempted to obtain any DOT bid documents for construction projects of less than $250,000, for which a contractor need not be pre-qualified, and has not attempted to “sub” or to do maintenance work on any DOT project. AMEC’s Project Engineer testified that AMEC has no current intent to apply for jobs with such a low financial return. However, absent a de-certification or declaration of AMEC as non-responsible, AMEC remains eligible at any time to apply for certification or to apply for the low financial return work that does not require pre-certification. DOT’s Construction Director, Brian Blanchard, manages the State’s 2.5 billion dollar work program, and testified that the integrity of the bidding process depends upon treating all contractors alike, and therefore, AMEC should be declared non- responsible because it did not meet the contract requirements that all other contractors had to meet, such as the timely filing of its final acceptace figures and the appropriate forms in compliance with a contract specification. On or about March 1, 2007, AMEC filed its petition for formal hearing herein, and the case was referred to the Division of Administrative Hearings. DOT has not challenged the timeliness of the petition.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order ratifying its January 17, 2007, declaration of AMEC as non-responsible for 90 days, the 90 days to run from the date of the Final Order. DONE AND ENTERED this 18th day of January, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2008.
The Issue The issues to be determined are: a) whether Petitioner’s sign for Crestview Paint and Body is located within Department of Transportation’s (“Department” or “Respondent”) right-of-way; and b) whether the sign is entitled to an on-premises exemption from permitting.
Findings Of Fact The Department of Transportation is the state agency responsible for regulating outdoor advertising along interstates and federal-aid primary roads in accordance with chapter 479, Florida Administrative Code Chapter 14-10, and a 1972 Federal- State Agreement. Petitioner, Crestview Paint and Body, owns and operates an auto body repair shop on 956 West James Lee Boulevard in Crestview, Florida, and has maintained that location since 1988. In 2006, Petitioner bought property at 701 South Ferdon Boulevard in Crestview, Florida, including a pre-existing sign for Jet Muffler and a building with four units. Petitioner opened the business location in 2007, and replaced the Jet Muffler sign with one for Crestview Paint and Body. One of the issues of dispute in this matter is whether Petitioner conducted business at the Ferdon Boulevard location. Mr. Lowe, owner of Crestview Paint and Body, testified that the Ferdon Boulevard location was operated as a concierge service for Crestview Paint and Body. Mr. Lowe maintains a business occupational license for the Ferdon location and the license was effective and valid when Respondent issued the Notice on April 17, 2017. While a tax collector print-out reflected the business was closed, the credible evidence supports that the concierge location maintained a valid business occupation license. Mr. Lowe had business cards made with a photograph of the Ferdon Boulevard location showing Hertz and Crestview Paint and Body, and the words “Collision Concierge and Rental Car Center, 701 S. Ferdon Blvd, Crestview, Florida.” Another card read “2 Locations to Serve You Better” with the addresses for Ferdon Boulevard and James Lee Boulevard. The Crestview Paint and Body sign at issue here was located at the Ferdon Boulevard location. It was erected at the same spot as the predecessor sign that advertised the Jet Muffler business and installed under permit No. 2007-0430. Petitioner complied with all Crestview local ordinances required to erect the sign. As the sign was replacing an established sign, it is not clear if the City of Crestview required a survey of the location prior to installation. The sign has been owned and operated by Crestview Paint and Body in its current location for the past 10 years. Wayne Thompson, an employee of Crestview Paint and Body, testified that he works at the Ferdon location periodically. He meets customers at the location as needed, an average of two times per month. An employee was initially assigned to work full-time at the concierge location, but the position was reduced to part-time, and eventually eliminated. Senida Oglesby, a former customer of Crestview Paint and Body, testified that she received concierge service at the Ferdon Boulevard location. She took her vehicle to the location and it was transferred to the main location for completion of service. However, Ms. Oglesby stated she was last at the business approximately 3 to 4 years ago. Mr. Lowe testified that he completed an inspection of a vehicle at the concierge location on an undetermined date. Respondent asserts that its investigator visited the Ferdon Boulevard location on February 7, 2017; April 17, 2017; and May 15, 2017, and observed no business activity and concluded there was no business being conducted on behalf of Crestview Paint and Body at the location. The credible evidence demonstrates that there was no legitimate business activity being conducted on behalf of Crestview Paint and Body at the Ferdon Boulevard location. Ferdon Boulevard is a federal-aid primary highway subject to Department permitting in accordance with chapter 479. Crestview Paint and Body has never requested or received a permit for the display of outdoor advertising at the Ferdon Boulevard location. In 2015, Crestview Paint and Body leased Bay 101 of the Ferdon Boulevard location to a vape and smoke shop. The header signs positioned above the units numbered 101, 103, and 104 had signs for the vape and smoke shop. There was no header sign above unit 102. Mr. Collins placed a Notice sticker on the Crestview Paint and Body sign located at Ferdon Boulevard. On April 18, 2017, a written copy of the Notice was sent to Crestview Paint and Body at the James Lee Boulevard location. In preparing for the hearing, Billy Benson, a Department outdoor advertising field administrator, discovered that the sign appeared to be partially on the property owned by Crestview Paint and Body and partially on the Department’s right-of-way. The Department’s right-of-way is defined in section 334.03(21), Florida Statutes, as land in which the Department owns the fee or has an easement devoted to or required for use as a transportation facility. At the sign’s location, the right-of-way extended 50 feet to the right and 47 feet to the left of the centerline of Ferdon Boulevard. Mr. Collins again visited the Ferdon Boulevard location along with Sam Rudd. Mr. Collins and Mr. Rudd located survey markers to the north and south of the sign establishing the Department’s right-of-way line extending 10 feet beyond the edge of the sidewalk. The front edge of the sign began at two feet beyond the edge of the sidewalk and the back edge of the sign was 12 feet beyond the sidewalk. A survey conducted by a Department survey crew in November 2017, confirmed that 7.8 feet of the sign was located within the Department’s right-of-way and 2.6 feet of the sign was on Petitioner’s property. On September 20, 2017, the Department issued an Amended Notice of Violation–Illegally Erected Sign, noting that in addition to being an unpermitted sign in violation of section 479.105, the sign was located within the Department’s right-of- way in violation of sections 479.11(8) and 337.407. On September 20, 2017, the parties filed an Agreed Motion for Continuance, based on the recently discovered information and the sudden death of Mr. Lowe’s father. The motion provided: This matter involves an unpermitted sign in Okaloosa County. The department recently surveyed the sign’s location and determined the sign is within the Department’s right of way. Consequently, the department is issuing an amended notice of violation citing section 337.407 and 479.107, Florida Statutes, in addition to the initial reason for the violation based on section 479.105, Florida Statutes. The Department believes it is in the interest of judicial economy to have all charges determined in a single hearing. The Petitioner has indicated additional time will be needed to respond to the notice of violation as amended. Petitioner contends that it objected to the Department’s amendment of the Notice initially filed in this matter. While the Department did not properly file a Motion to Amend its Notice, there was no showing that Respondent was prejudiced by the Department's failure to comply with all requirements of the statute. Assuming arguendo there was prejudice, any prejudice alleged by Petitioner was cured. Petitioner agreed to the continuance, which stated the amendment of the Notice as a basis for the continuance. Further, Petitioner had more than 60 days to conduct discovery regarding the new allegations and had sufficient time to prepare for the hearing.
Recommendation Upon consideration of the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order finding that Petitioner’s sign was erected and maintained on the Department’s right-of-way. Further, the final order should find that Petitioner is not entitled to an exemption for an on-premises sign. DONE AND ENTERED this 1st day of February, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 1st day of February, 2018. COPIES FURNISHED: Dixie Dan Powell, Esquire Powell Injury Law, P.A. 602 South Main Street Crestview, Florida 32536 (eServed) Susan Schwartz, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Michael J. Dew, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed)
The Issue The issue for consideration in this case is whether the permit for sign installation previously issued by the Department of Transportation is still valid to authorize Petitioner’s sign located on State Road 60 in Pinellas County.
Findings Of Fact The parties entered into two stipulations of fact which are accepted and incorporated herein. Stipulation of Fact #1 reads: The off-premise outdoor advertising billboard structure located at 2815-2817 Gulf-to-Bay Boulevard in Clearwater, Florida, owned by Allan J. Stowell was lawfully erected under the applicable provisions of the City’s ordinances in the fall of 1981. The City issued building permit number 6361D, dated September 3, 1981, to Stowell to erect the billboard in issue. On August 25, 1985, the City of Clearwater adopted sign regulations which required, among other things, uniformity among signs. City Code Section 44.55(3)(b), required that all billboards on Gulf-to-Bay Boulevard, east of Highland Avenue, be brought into conformance with the Code provisions by January 19, 1996. On January 19, 1989, the City adopted Ordinance No. 4753-88, regulating signs on Gulf-to-Bay Boulevard. Pursuant to that ordinance, the billboard in issue became non-conforming due to its size. Mr. Stowell was allowed a seven-year amortization period which expired on January 19, 1996. By letter dated August 30, 1994, the City advised Mr. Stowell that the billboard in issue would have to be brought into compliance with the provisions of the City’s sign ordinance by January 19, 1996. As a result of the sign regulations adopted by the City in 1985, the billboard in issue was classified thereafter as a legal non-conforming sign, and it was such on November 25, 1995. Stipulation of Fact #2 reads: State Road 60 means that segment of roadway, also known as Gulf-to-Bay Boulevard, which is located within the City of Clearwater and is east of Highway 19. The effective date of the national highway system was November 28, 1995, and all references in stipulated exhibits, stipulations, transcripts of depositions, correspondence or other documents which erroneously refer to November 25, 1995, shall be amended to read November 28, 1995, for the purposes of this administrative proceeding. Any reference in this administrative proceeding to the “subject sign,” “billboard,” “off-premise outdoor advertising structure,” “sign,” or other similar designations shall mean the off-premise outdoor advertising billboard structure owned by the Petitioner and located at 2815-2817 Gulf-to-Bay Boulevard (State Road 60). On May 22, 1974, State Road 60 was designated a Federal- Aid Primary. On July 1, 1976, State Road 60 was re-designated from a Federal-Aid Primary to a Federal-Aid Urban. Allan J. Stowell was licensed by the Florida Department of Transportation as an outdoor advertiser pursuant to license number 19848, dated October 2, 1981. On or about October 1, 1981, Allan J. Stowell was issued state sign permit numbers AF307-10 and AF308-10, by the Florida Department of Transportation, for the construction, maintenance and operation of the two sign facings on the subject billboard structure. At this point, State Road 60 was not part of the Federal-Aid Primary Highway System within Florida. After 1988, the Department discontinued billing Mr. Stowell because State Road 60 was not a Federal-Aid Primary, Interstate, or a part of the State Highway System outside a municipality. State Road 60 became a part of the national highway system on November 25, 1995. Petitioner, Allan J. Stowell, purchased the property on which the sign in issue is located in 1972. At that time, a sign owned by Foster and Kleiser (F&K), an outdoor advertising firm, was situated on the property. After Petitioner purchased the property, he entered an amended lease agreement with F&K for the use of his property. At that time, the existing sign was permitted by the state. Subsequent to the execution of the amended lease, because he wanted to develop the land and put up his own sign, Mr. Stowell requested that F&K remove their sign from his property, and an agreement to do that was received on August 3, 1981. During his research in preparation for the request for removal, Mr. Stowell spoke with Mr. Andre DeVetter of the Brandon office of the Department of Transportation (DOT). Mr. DeVetter advised him the sign was located adjacent to a Federal Aid Primary Highway, that the property on which the sign was to be located was properly zoned for that purpose, that after removal of the existing sign, Stowell could apply for and receive a permit for a new sign, and that under the terms of the Federal Highway Beautification Act (the Act), Mr. Stowell could not be required to take the sign down without compensation therefor. Based on these assurances, Petitioner borrowed $35,000, placing his home as collateral for the loan, which he used for the construction of the new sign. Before starting construction, however, Mr. Stowell went to the City of Clearwater for both a permit for the construction and a variance to exceed the normal size limitations because his proposed sign was to be bigger than the code calls for by more than 100 square feet. He requested and obtained a permit to construct a 10 by 40-foot sign. The variance was initially denied by the city’s sign approval board, but a subsequent action by the Board of Adjustment granted the variance. Though the minutes of the pertinent meeting of the Board of Adjustment cannot now be found, Mr. Stowell has a letter dated August 21, 1997, from DOT in which the Department agrees that a variance was granted. He also obtained an occupational license to conduct the outdoor sign business. Mr. Stowell constructed the new sign which was permitted by the Department as promised in 1982. He thereafter obtained renewals of the permits for the sign from DOT for calendar years 1983 and 1984 - one for each face. Over the succeeding years, Mr. Stowell did not receive annual renewal notices for the years 1985, 1986, or 1987, and the fees for those years were not initially paid. However, he received a letter in 1988 indicating he was delinquent in certain costs and fees for the permits. When he received that letter, Mr. Stowell sent in a check for the delinquent costs and fees in the amount of $308.00, which covered all delinquent permit fees and a 10 percent delinquency penalty, and believed his delinquencies had been brought current. The Department issued permits to Mr. Stowell for the sign in 1981 and 1982. After the delinquencies were brought current in 1988, Mr. Stowell did not hear anything further from the Department, other than the previously mentioned letter, which noted the sign was now on the Federal Highway System and he needed to obtain permits for it. Since he had previously been issued permits for the sign in 1981 and 1982, and since he had never received any notice that those permits had been revoked, he mistakenly believed his status was acceptable. When Mr. Stowell received the variance from the city for the 14 by 48-foot sign prior to its installation, he advised Mr. DeVetter at the Department’s Brandon office of its granting and was told his status was acceptable. After the City later sent him a letter indicating that the sign had to come down due to a change in the City ordinance, instead of planning to amortize the cost of the sign over the succeeding seven years, he started research into what he needed to do to obtain compensation for the taking as is required by the FHBA. In response, he received a copy of a certificate of sign removal from Reginald N. Millian, the Department’s Outdoor and Property Advertising Inspector, indicating that the sign had been removed by the owner, and that this determination was made based on a personal visit to the site. This was patently in error. The sign had not been removed and, in fact, had been operated and maintained, structurally unchanged, continuously since its construction in 1981. After the Department advised Mr. Stowell of his delinquency in permit fees in September 1988, even after the fees were paid up, due to the change in jurisdiction status, the Department inactivated his permits for this sign, dropped his permit numbers from its permit billing inventory, and did not issue and further billings to him for the previously issued permits. However, the Department did not issue a notice of intent to revoke the two permits, AF307-10 and AF308-10, nor did it in any way advise Mr. Stowell that his permits were no longer valid. Mr. Stowell mistakenly assumed that his sign was validly permitted, even after the City notified him of its status in 1994. After the Department reassumed jurisdiction, by letter dated June 21, 1996, the Department’s District Administrator, Property Management/ODA, Susan L. Rosetti, advised Mr. Stowell that his sign was not permitted and that the sign’s two faces required permits. At this point Mr. Stowell was provided with application forms for the permits and a set of instructions. After receipt of the June 21, 1996, letter, Mr. Stowell contacted Kenneth M. Towcimak, the Director of the Department’s Office of Right-of-Way, to request assistance in obtaining the required permits. In response, Mr. Towcimak advised Mr. Stowell that the permits had been inactivated by the Department, and that because State Road 60, on which the sign was located, was now under the Department’s jurisdiction, he had to obtain a new state permit by January 1, 1997. Towcimak contacted the City to determine the appropriate status of the sign, and as a result of this inquiry, advised Stowell in writing on November 6, 1996, that the Department was precluded by Florida Statute from approving any application for a permit which was not accompanied by a statement from the appropriate local government that the sign complies with all local government requirements, and that the local government will issue a permit upon approval of the application by the Department. Thereafter, On December 31, 1996, Mr. Stowell filed an application with the Department by certified mail. The document reflects it was date stamped in the Department on January 1, 1997, at 4:31 p.m., and again on January 3, 1997, at 1:07 p.m. Since the application Mr. Stowell filed was to reinstate the previously issued permits and not for new permits, he failed to complete a number of the information blocks on the form. On January 21, 1997, the Department issued a Notice of Denied Application for the permits to Mr. Stowell. The denial form reflected the reason for denial was that Mr. Stowell had failed to provide proof of ownership of the billboard, and had provided incorrect information on the application form. The evidence of record indicates that Mr. Stowell did provide the requested proof of ownership of both the billboard and the property on which it is located in his application. One of the City’s previously existing sign ordinances was declared unconstitutional by the Eleventh Circuit Court of Appeals on March 23, 1993. Since that time, the City has not enacted a comprehensive sign ordinance, but in 1989 it enacted an ordinance, No. 4753-88, which relates to signs located on SR 60 and which requires those signs on that road which are non- conforming to be brought into conformance or removed within seven years. This provides affected sign owners an opportunity to either bring the sign into conformity with the requirements or amortize the cost of the sign over seven years. Mr. Towcimak, Director of the Department’s Office of Right-of-Way, indicated that when the national highway system under ISTEA came into effect in November 1995, the Department had no inventory of existing signs. As a result, it did not provide notice to the owners of effected signs, and instructed its district offices to accept applications for sign permits through January 1, 1997. The operations of the Department of Transportation are decentralized with policy being set at the headquarters, but the day-to-day operations being determined at each of the eight districts. As to outdoor advertising enforcement, however, while each district handles enforcement, accounting is handled in the central office. In doing so, the Department follows the provisions of Chapter 479, Florida Statutes, which specifies that all permits expire on January 15 of each year. In practice, the advertiser is billed by October 1 of each year and is furnished a list of all permits shown by the Department records to be held by that permittee, along with a bill for all fees owed. If the Department records do not reflect an active permit for a particular sign, no billing will go out for that sign. Petitioner’s instant application for permit reflects it was timely received in the pertinent Department office. It is general practice within the Department for the District Outdoor Advertising Administrator to review the application and decide whether to grant or deny the permit. Thereafter, the application is forwarded to the central office for final check prior to issuance of the metal tag. It is Department practice to issue or deny the permit within 30 days of receipt of the application, as mandated by statute. When an application for a permit for an outdoor sign is received by the Department it is agency practice to review it for completeness. If the application is complete, a decision is made whether to approve or disapprove the application. If the application is incomplete, it is returned to the applicant without decision. However, if an application is incomplete, but it is apparent that, even if complete, the application would not be approved, that application will be returned “denied” rather than “incomplete.” There are several requirements which must be satisfied before an application may be approved. One of these is that the applicant submit a statement from the local government that the proposed sign would comply with local sign regulations, as required by Section 479.07(3)(b), Florida Statutes. If an application is received by the Department without this element being present, the Department may either return the application as incomplete or, if it appears the sign does not comply with local sign regulations, deny the application. The “Harmony of Regulations” provisions of Chapter 479, Florida Statutes, prohibits the state from issuing a permit where local government does not approve the sign, and prohibits local governments from issuing a sign permit where the Department does not approve. Consistent with that direction, when Petitioner contacted Mr. Towcimak to request guidance in the permitting process, and outlined his problem regarding the City’s position, Mr. Towcimak contacted the City to find out where that entity stood. On two separate occasions, the City advised the Department in writing that Petitioner’s existing sign was illegal and it would not grant permission for the Department to issue a sign permit. When that information was received by the Department, Petitioner was advised of the City’s position and that the permit would not be issued as a result.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner permits for the maintenance of the signs in issue, and denying compensation for their removal. DONE AND ENTERED this 2nd day of February, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1998. COPIES FURNISHED: Gerald S. Livingston, Esquire Livingston & Associates, P.A. Post Office Box 2151 Orlando, Florida 32802 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Department of Transportation ATTN: Diedre Grubbs 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
