Findings Of Fact DOT is an agency of the State of Florida responsible for the construction and maintenance of roads designated as part of the State Highway System. Clark is a road and bridge construction company located in Dozier, Alabama, and certified to bid on DOT contracts. On January 23, 1991, Clark submitted its bid on DOT Project No. 61530- 3601 for the construction of two adjacent bridges (Holmes Creek Bridge and Holmes Creek Relief Bridge) located in Washington County, Florida. On April 4, 1991, DOT and Clark entered into a contract for this project. The construction on the project was to take 400 contract days. On December 8, 1991, DOT advised Clark of its intention to declare Clark delinquent for unsatisfactory progress on the project. The contract required Clark to submit a construction schedule for approval by DOT. Under its approved construction schedule, Clark anticipated that it would commence its pile driving activity on the tenth day of the contract. Clark also proposed beginning the superstructure 40 days after beginning the substructure. The contract provides in part as follows: 8-7.3.2 . . . The Department may grant an extension of contract time when a controlling item of work is delayed by factors not reasonably anticipated or foreseeable at the time of bid. Such extension of time may be allowed only for delays occurring during the contract time period or authorized extensions of the contract time period. * * * Delays in delivery of materials or competent equipment which affect progress on a controlling item of work will be considered as basis for granting a time extension if such delays are beyond the control of the Contractor or supplier. * * * 8-8.2 Regulations Governing Suspension for Delinquency: Under the relevant rule provisions, a contractor is delinquent when unsatisfactory work progress is being made under these conditions: * * * (3) The allowed contract time has not expired and the percentage of dollar value of completed work is 15 percentage points or more below the dollar value of work which should have been completed according to the approved working schedule for the project. After falling 15 percent behind, the delinquency continues until the percentage points of the dollar value of completed work is within five percentage points of the dollar value of work which should have been completed according to the approved working schedule for the project. The contract required Clark to procure pilings for the project from a certified prestressed concrete manufacturer. The concrete mix design used by the prestress manufacturer had to be approved by DOT before construction could begin. At the time Clark prepared its bid, there were no preapproved prestressed concrete manufacturers in Florida or Alabama in the reasonable vicinity of the project. In preparing its bid, Clark contacted Sherman International (Sherman), a prestressed concrete manufacturer with headquarters in Birmingham and a plant in Mobile, Alabama. Immediately upon being awarded the contract, Clark notified DOT that Sherman would be its prestress supplier. Sherman had experience in fabricating prestressed products for states other than Florida and therefore believed it would not have a problem meeting Florida's certification requirements. The certification process requires inspection and approval by DOT officials of the manufacturer's equipment, material suppliers, plant operations, concrete mix, etc. The certification process also involves the production and pouring of test batches which must be reviewed by DOT officials who note problems with the product and direct resolution of the problems. The certification process involves a minimum of 28 days to allow the test batches to cure. After Sherman went through two unsuccessful 28-day curing periods in its effort to meet DOT approval, it retained an expert more familiar with DOT procedures and requirements and was finally able to obtain DOT approval on July 10, 1991. DOT's district engineer recognized that Clark reasonably would have anticipated that Sherman would be approved without delay. Neither Sherman nor Clark had reason to anticipate the approval of Sherman would take an extended length of time. Due to the delays in the approval of Sherman, Clark was unable to begin pile driving until August 14, 1991, the 98th day of the contract. Under the contract, piling had to be driven to depth until it met a specified bearing capacity, but still maintained the necessary height above ground to support the superstructure. The work on the foundation began by driving test piles. Once the test piles were driven, DOT was responsible for determining the order lengths for the piling. The order lengths were supposed to be long enough so that the piles would reach bearing and also maintain the specified height, above ground. Immediately upon commencing pile driving, Clark ran into problems because the piles were not long enough to be driven to bearing. The piles which did not meet bearing had to be spliced and redriven until they reached bearing. The contract contemplated that as many as seven splices would be required, 2 on the relief bridge and 5 on the creek bridge. The contract therefore identified splicing as an item for which the bidders were required to submit a unit price. In fact, on the creek bridge, 43 of the 96 piles had to be spliced. DOT was responsible for determining the additional pile lengths for the splices and it took DOT at least a week to make the determination once it realized a splice was required. Sherman had to manufacture the splices piecemeal as the orders came in to do so. Once manufactured, the pile splice had to cure for seven days then be shipped to the contractor. The contractor then affixed the pile splice to the original piling by the use of dowels and epoxy which had to cure for 48 hours. Construction of the substructure consisted of driving the piles, splicing and pouring concrete caps on which the bridge superstructure would rest. Before construction of the superstructure (decks) of the bridge could begin, pile caps had to be constructed. It took anywhere from two weeks to two months between the time the parties discovered that a pile or group of piles would have to be spliced and the time the spliced pile could be redriven. The pilings are constructed in clusters known as bents. Every bent on this project required splicing and therefore, construction of every bent was delayed. Before Clark could begin construction of the superstructure, it was necessary to have a consecutive series of bents completed including the caps. Even though Clark anticipated that it would commence construction on the superstructure 40 days after beginning the substructure, Clark was unable to start on the superstructure until 92 days after it started the pile driving operations because of the delays caused by the excessive splicing. Clark expected to be able to begin the superstructure on one end of the bridge while it was working on the substructure at the other end. However, Clark's planned, efficient progress was impeded because of ongoing driving operations of spliced pilings. Clark could not pour the caps while pile driving was going on within 100 feet of the bent where caps were to be poured. Clark continued on with its pile driving while it ordered splices for the previous bents. As soon as Clark was able to pour caps it did so and as soon as there were a sufficient number of completed successive bents available, Clark began work on the superstructure. Clark requested time extensions due to the delays, but the requests were denied. Clark ultimately was delayed in the progress of its work due to the unanticipated pile splices which exceeded the estimated quantity by more than 800 percent. DOT granted Clark nine additional contract days as the result of a supplemental agreement which did not include any additional time for the delays due to the excessive splicing. At the time of the notice of delinquency, Clark requested a 45-day extension of time due to the splicing. By a letter dated December 4, 1991, the DOT project engineer acknowledged that Clark was entitled to some time extension due to the splicing, but DOT proposed only a 9-day extension. In fact, no such extension was ever granted. DOT determined Clark delinquent on day 210. According to the engineer's weekly summary, on day 210, the percentage of the dollar value of completed work was 39.5 percent and the total allowed number of contract days was 403. By DOT's own calculations, if Clark had been given the nine days proposed for the supplemental agreement and the nine days suggested in the project engineer's letter of December 4, 1991, the project would have only been delinquent by 17 percent. It is not necessary for the trier of fact herein to determine the exact number of days which should have been granted for the pile splicing. It is enough to find that the 9 days suggested by DOT are inadequate and that the appropriate figure, based on the engineer's progress notes and reports, is at least twice that. DOT's witnesses offered explanations of why Clark was entitled to no extension in contract days because of the pile splices. However, their suggestions was beyond the realm of credibility in light of the actual extent of work and time required. Credibility determinations being within the exclusive province of the Hearing Officer, it is determined that DOT's testimony regarding the reasons for DOT's refusal to extend the contract time to reflect the inordinate number of pile splices is simply not credible or entitled to any weight. Additionally, neither of the main DOT witnesses had adequate knowledge of this specific project. If DOT had granted Clark an adequate number of days extension for the pile splices, that number plus the additional 9 days would result in an adjusted number of contract days of over 430. If Clark were granted the appropriate number of additional contract days, the percentage of dollar value of completed work would be less than 15 percentage points below the dollar value of work to be completed according to the contractor's schedule. This is calculated as follows: 210/430=48.6 percent. (Actual work completed of 39.5 percent or uncompleted percent of total contract amount of 60.5 percent.) 60.5-48.6=11.9 percent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DOT enter a Final Order determining that Clark is not delinquent and dismissing the delinquency determination against Clark Construction Co., Inc., on State Project No. 61530-3601. DONE and ENTERED this 14th day of July, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 14th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-1592 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Transportation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 15(8); 18(8); 32(17); and 34(19). Proposed findings of fact 7-14, 19, 20, 22-31, 33, 35-37, and 40 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 6 is unnecessary. Proposed findings of fact 16, 38, 39, and 42 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 17, 21, 41, and 43 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Clark Construction Co., Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-6(9-13); 8-13(14-19); 14(6); 15(7);. 16-28(20-32); 30-33(33-36); 34(8); 35(37); 36-40(39-43); and 46(38). Proposed findings of fact 1, 29, 41, 42, and 45 are subordinate to the facts actualloy found in this Recommended Order. Proposed findings of fact 7 and 47 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 43 and 44 are unnecessary. COPIES FURNISHED: Reynold D. Meyer Genie L. Buckingham Assistant General Counsels Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Mary Piccard, Attorney at Law Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive P.O. Box 589 Tallahassee, FL 32303-0589 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issue for consideration in this matter is whether Respondent's operation of an overweight truck over the low-limit bridge involved herein is a violation and if so, what penalty should be assessed.
Findings Of Fact At all times pertinent to the issues herein, the Department of Transportation was the state agency responsible for enforcing the statutes involving commercial carrier and truck vehicle weights on covered vehicles operated on the streets and highways of this state. It does so through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to conduct random safety and compliance inspections of commercial vehicles being operated in this state. The parties agree that on August 8, 1991, Respondent, P.J. Constructors, Inc. was prime contractor to the Petitioner, Department of Transportation for the removal and replacement of a highway bridge over the Florida Turnpike where it intersects with Hood Road in Palm Beach Gardens, Florida. At the time in issue, Respondent was operating a 1981 MAC tractor trailer low boy on which it was transporting a piece of heavy construction equipment. At the time in issue, Officer Neff stopped the vehicle for crossing over this bridge which was clearly posted as having a maximum weight limit for tractor trailers of 15 tons, (30,000 pounds). Following standard Department weighing procedures measuring weight at each axle and combining those weights to arrive at a total, and using portable Department scales which are calibrated every 6 months for accuracy, Officer Neff determined the vehicle weight at 54,800 pounds. This was 24,800 pounds over the legal weight and resulted in a penalty assessment of $1,240.00 at 5 per pound of overweight. The approaches to this bridge were clearly marked at several locations with signs indicating the maximum weight permitted for this type vehicle was 15 tons. These signs were located at sites which were far enough away from the bridge to give a driver ample notice of the restrictions and ample opportunity to turn around or to take an alternate route over roads situated between the signs and the bridge. In addition to the signs, however, earlier the same day, as warnings were issued to users of the bridge who were going to a construction site on the other side, Respondent's driver was specifically told of the bridge's low limits and advised of an alternate route to avoid it. Admittedly, the alternate routes would be longer than the route over the bridge, but no evidence as presented by either party as to how much the difference was. Respondent's General Manager, Mr. McAllester, claims the signs were not in position on the two occasions he visited the site during the bid process in February or March, 1991. He cannot say that he knew where the signs might have been located (away from the site), but avers only that he did not see any. However, officer Neff specifically checked to see that the signs were in place before issuing the citation on August 8, 1991 and it is, therefore, found that the signs were properly in place on that date. Mr. McAllester also urges in the alternative, however, that even if the signs were in place, as contractor on the bridge replacement project, the terms of the bid specifications, which directs contractors from operating equipment in excess of the maximum weights set out by law, exempts the contractor where the existing road or bridge is to be removed as a part of the work included in the project. The bridge in issue here was removed and replaced as a part of the project on which Respondent was contractor and the current bridge has no limit. Mr. McAllester admits that when the instant citation was issued, Respondent had no special permit to cross the bridge with an excess load. Once the citation was issued, however, Respondent quickly retained an engineer to do a structural analysis of the bridge in issue. Based on that analysis, Respondent thereafter sought and obtained permission to cross the bridge with an overload provided all other traffic was stopped on Hood Road while the excessively laden vehicle was on the bridge so it would be the only vehicle thereon at the time, and provided that vehicle kept to the center of the road while on the bridge. Subsequent to the citation and before the permit was issued, Respondent did not operate any excessively laden vehicles on the bridge. Respondent admits that at the time the citation was issued, there was traffic operating both on the Turnpike and on Hood Road. Therefore, a potential danger to the public existed. Nonetheless, traffic was maintained on both roadways throughout the entire project without incident. None of the weight limits or a need to maintain weight standards was discussed at the pre-bid conference, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered assessing a civil fine in the amount of $1,240.00 against the Respondent. P.J. Constructors, Inc. RECOMMENDED this 22nd day of July, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1992. Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Foster McAllester Vice President and General Manager P.J. Constructors, Inc. 4100 S.W. 70th Court Miami, Florida 33155 Ben G.Watts Secretary Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel ]Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether disciplinary action should be taken against Respondent’s license to practice contracting, license number CGC 060878, based on violations of Subsection 489.129(1), Florida Statutes (2005)1, as charged in the three-count Administrative Complaint filed against Respondent in this proceeding. Whether Respondent violated Subsection 489.129(1)(g)2., Florida Statutes (Count I) by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer; Subsection 489.129(1)(j), Florida Statutes (Count II) by abandoning a construction project in which the contractor is engaged or under contract as a contractor, and Subsection 489.129(1)(m), Florida Statutes (Count III) by committing incompetency or misconduct in the practice of contracting. And, if so, what discipline should be imposed, pursuant to Section 489.129, Florida Statutes, and Florida Administrative Code Rule 61G4-17.002.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are determined: At all times material, Respondent was a certified general contractor, having been issued license number CGC 060878 by the Florida Construction Industry Licensing Board (CILB). At all times material, Respondent was the qualifier of Epic Building and Development Corporation, a Florida Corporation, with its principal place of business in the Fort Myers area. On February 22, 2005, Respondent entered into a contract with Edward Dueboay to rebuild a house owned by Dueboay and his wife, located at 22299 Laramorre Avenue, Port Charlotte, Florida, which had been distroyed some months earlier by Hurricane Charlie. The price of the contract was $150,000.00. On or about March 24, 2005, Dueboay gave Respondent a check in the amount of $3,500 payable to Contractors Marketing America, Inc. (CMA, Inc.), for the engineering plans. On May 6, 2005, Dueboay paid Respondent $5,000, as an advance on the contract. Respondent did not obtain the building permit from the Charlotte County Building Department until December 12, 2005, and work on the project did not start until January 2006. Because of the enormous damage caused by the hurricane, contractors in the area were flooded with jobs, and significant shortages in building materials also occurred. On January 13, 2006, Respondent billed Dueboay $11,000.00 for land clearing and filling, $750.00 for permit fees, and $3,200.00 for a temporary electric pole. The bill gave credit for the $5,000.00 Dueboay paid on May 6, 2005, and showed a balance due of $10,000.00. On January 20, 2006, Dueboay paid the above-mentioned invoice, by check to Respondent, in the amount of $10,000.00. Respondent paid $4,600.00 to the sub-contractor who performed the lot clearing and filling, but billed Dueboay $11,000.00. However, the contract provided for a $2,500.00 allowance for clearing and filling, and a $750.00 allowance for permit fees. Section 11.c of the contract also provided that Respondent shall provide and pay for all materials and utilities and all other facilities and services necessary for the proper completion of the work on the project in accordance with the contract documents. To pay for the remainder of the contract, Dueboay negotiated and obtained a loan in the total amount of $153,000.00 from Suncoast Schools Federal Credit Union (Credit Union). On March 21, 2006, Dueboay and the Credit Union signed the construction loan agreement. On March 21, 2006, Respondent was paid $18,235.00 by the Credit Union for the pre-cast walls used in the erection of the structure. On May 11, 2006, Respondent finished Phase I of the project. On May 15, 2006, Respondent received $11,350.00 as the first draw by the Credit Union. On June 20, 2006, Respondent finished Phase II of the project. On June 20, 2006, Respondent was paid $26,335.00 as the second draw by the Credit Union. From June 2006 to November 2006, Respondent performed no work on the house under the Dueboay contract. Because the roof was not completed, mold appeared on and in the house. On August 21, 2006, Dueboay paid $109.95 to America’s Best Cleaning and Restoration, Inc., for mold removal. On or before September 13, 2006, Dueboay hired an attorney to clarify billing charges related to lot filling, permit fees and the temporary electric pole, and to prompt Respondent to resume work abandoned since June 2006. Under the Credit Union Loan Agreement, after several extensions, the completion of the Dueboay home should have taken place on or before October 17, 2006. On October 18, 2006, the Loan Agreement extension expired, and Dueboay was required to pay mortgage and interest on the loan, even though construction of the house was not completed. On November 10, 2006, Dueboay’s attorney sent Respondent a third letter advising him that the project was stagnating; that after eighteen months since the signing of the contract, the roof of the house was not yet completed; and that, under the contract, Respondent was obligated to substantially complete all work in a reasonable time after construction had started. On or about December 1, 2006, the building permit expired and had to be renewed. At some point after November 10, 2006, Respondent resumed work and finished Phase III on March 8, 2007, with the exception that some doors were not installed, including the garage door. Respondent submitted a sworn Contractor’s Affidavit stating that all subcontractors had been paid, and that there are no liens against Dueboay’s property. However, Dueboay had to pay Charlotte County Utilities $224.93 on October 29, 2007, and $240.00 to Pest Bear, Inc., on May 7, 2008, to avoid two liens being recorded against his property. From March 8, 2007, until July 2007, Respondent performed no work under the contract. David Allgood, another general contractor, was hired by Respondent to complete some of Respondent’s projects in the Port Charlotte area, including the Dueboay house. However, Dueboay was not informed of this arrangement. There was no contract directly between Dueboay and Allgood. On September 4, 2007, relying on advice from his attorney, Dueboay changed the locks to the house, with the intent to keep Respondent and his employees off his property. Shortly thereafter, employees of general contractor David Allgood broke the front lock and entered the property in September 2007, without Dueboay’s permission. Dueboay, again, following advice from this attorney, called law enforcement to eject Allgood’s employees from his property. Allgood attempted to invoice Dueboay for installing some doors on the house that Respondent had previously paid for, and which Respondent should have installed. However, following advice from his attorney, Dueboay resisted Allgood’s request to pay him for the doors. Respondent was paid a total of $122,246.03 for the Dueboay project, before the contract was cancelled. Respondent did not complete work from Phases IV and V, with the following exceptions: he did some work on the driveway, painted the interior, did some cabinet work, exterior trim and soffit, siding, stucco, and some interior trim. Therefore, Respondent completed, at best, three out of seven operations from Phase IV (interior and exterior paint, interior trim and doors, and exterior trim and soffits) and worked on, but did not complete, stucco and some cabinets. From Phase V, Respondent only worked on the driveway and sidewalks, which had to subsequently be repaired. Dueboay hired Storybook Homes, Inc. (Storybook), to complete work abandoned by Respondent from Phases IV and V. Storybook was hired to complete work as follows: install cabinets and vanities, install ceramic tiles, repair stucco, install custom tub, all electrical and plumbing per code, complete exterior paint, install hardware, sinks and faucets in the baths and showers, complete floors, install all appliances, complete air conditioning and heat, and obtain the certificate of occupancy. The amount of $122,246.03 paid to Respondent at the time when Respondent abandoned the Dueboay project represents 81 percent of the total contract price of $150,000.00. Respondent completed, at best, 75 percent of the job by completing only three out of seven operations of Phase IV and working on some additional operations that needed to be redone, like the driveway, sidewalks and stucco. Due to Respondent’s failure to perform work on time, Dueboay incurred $5,116.42 in additional expenses, as follows: $109.95 on August 21, 2006 (mold removal), $360.00 on November 23, 2006 (legal fees), $175.00 on June 4, 2007 (legal fees), $375.00 on September 4, 2007 (legal fees), $224.93 on October 29, 2007 (to satisfy lien), $668.34 on November 3, 2007 (legal fees), $200.00 on April 4, 2008 (legal fees), $1,151.05 on May 7, 2008 (to correct work performed deficiently by Respondent), $390.00 on May 7, 2008 (to repair driveway), $240.00 on May 7, 2008 (to avoid lien), and $412.00 on May 12, 2008 (to install safe room door that Respondent failed to install). The total investigative costs of this case to Petitioner, excluding costs associated with any attorney’s time, for Petitioner’s case no. 2005-028129 was $276.18.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board render a Final Order as follows: Finding Respondent guilty of having violated Subsection 489.129(1)(g)2., Florida Statutes, as alleged in Count I of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,500. Finding Respondent guilty of having violated Subsection 489.129(1)(j), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $2,500. Finding Respondent guilty of having violated Subsection 489.129(1)(m), Florida Statutes, as alleged in Count III of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,500. Respondent’s license to practice contracting (CGC 060878) be suspended for a period of three months, followed by a period of probation for two years, upon such conditions as the Board may impose, including the payment of costs and restitution. Requiring Respondent to pay financial restitution to the consumer, Edward Dueboay, in the amount of $5,116.42 for consumer harm suffered due to payment of additional expenses. Requiring Respondent to pay Petitioner’s costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $276.18. DONE AND ENTERED this 21st day of July, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 July, 2009.
Findings Of Fact In 1984 and for many years prior Petitioner held a Certificate of Qualification to bid on and be awarded contracts let by the Department. On April 10, 1984, Petitioner entered into a voluntary plea, and was convicted of a one-count criminal violation of Title 15, USC, Section 1, which is commonly known as "The Sherman Antitrust Act." The charge involved a public contract with the Florida Department of Transportation in which Petitioner received a complimentary bid from another contractor who was bidding on the same project which was awarded to Petitioner. This practice is commonly known as "bid rigging." The conviction took place in the U. S. Northern District Court of Florida. Petitioner would have submitted the same bid on this project without the benefit of the complimentary bid. 33 C.F.R, Part 16, provides for a maximum debarment on first conviction of 36 months by a federal agency. Petitioner was debarred by the Federal Highway Administration for only six (6) months based upon a review and determination of culpability of the Petitioner in the crime of which Petitioner was convicted. Immediately subsequent to December 17, 1984, Petitioner was declared acceptable for employment on highway projects which required approval or concurrence of the Federal Highway Administration. On June 18, 1984, Respondent revoked the Petitioner's Certificate of Qualification for a period of 36 months pursuant to Florida Statutes 337.165(2)(a). The only reason given for the revocation was the aforementioned conviction. With the exception of Petitioner, who has never had a decision rendered on a Petition for Reinstatement by Respondent, every contractor who has been debarred and/or had its Certificate of Qualification revoked by Respondent pursuant to Section 337.165, Florida Statutes, who has petitioned for reinstatement, has been reinstated by Respondent. Exhibit "A" hereto is a list of contractors who were debarred by Respondent and were reinstated. It was in the public interest to reinstate each of these contractors. It is in the public interest and the interest of the Respondent to build roads, build them at a good price, and have a competitive bidding system with integrity. Petitioner has promptly and voluntarily continued to pay its fine of $65,000 to the Federal Court. No payment of damages has ever been requested by the State as a result of the Petitioner's violation of state or federal antitrust laws. The Petitioner notified the Respondent within thirty (30) days after his conviction of the contract crime. Petitioner has the manpower, equipment, financial resources, and contracting experience to meet the Respondent's requirements in those areas for the purpose of a Certificate of Qualification. Howard H. Hewitt became affiliated with Square D Contracting Company in 1967 when he acquired a minority interest in the company. He subsequently increased that interest to 50 percent. In 1980 he acquired the remainder of the stock and changed the name of the company to Hewitt Contracting Co., Inc. In 1980 the Florida Attorney General's Office commenced an investigation of bid rigging by road contractors. In February 1983 the Attorney General's Office subpoenaed Hewitt to appear under their Civil Investigative Demand procedures and give evidence about his knowledge of bid rigging in Florida. He appeared and, on the advice of counsel, refused to give testimony claiming protection under the Fifth Amendment. By Court Order, Exhibit 8, dated June 24, 1983, Hewitt was directed to give testimony to the Florida Attorney General under grant of immunity from criminal prosecution and from any civil penalty as provided in s. 542.21(1), Florida Statutes (1981), as to those transactions about which he testifies. In compliance with that order he submitted documents and testified before assistant attorneys general three times. A grant of immunity by the Florida Attorney General's Office would not shield Hewitt from federal prosecution. Following the filing of charges by the Federal District Attorney, Hewitt provided testimony to federal officials several times regarding his knowledge of contract crimes, dropped his membership in the Florida Road Builders Association, started using a different hotel during his appearances in Tallahassee, and limited his contacts with fellow contractors to those necessary to conduct business. In a subsequent damage trial brought by the Attorney General's Office against Ezelle Construction Company, Hewitt advised both parties that he would testify for neither and, upon advice of counsel, would claim the Fifth Amendment if subpoenaed. Neither side subpoenaed Hewitt. The jury found Ezelle not liable for damages as claimed by the Attorney General. The only witness called by Respondent, Assistant Attorney General Bayard W. Heath, testified that the critical part of the bid rigging investigation in which he was involved occurred in 1983 at which time Hewitt asserted the Fifth Amendment privilege and caused a change in the investigation plans of the antitrust division. When Hewitt's counsel in January 1985 advised Heath that Hewitt would take the Fifth Amendment if subpoenaed to testify in the civil damages suit brought against Frank Ezelle, et al., he released Hewitt from the subpoena and did not attempt to enforce the subpoena. Petitioner presented one rebuttal witness, the attorney who represented Hewitt during the civil investigative demand procedures by the antitrust division of the Attorney General's Office. He testified that he was never advised by Heath or any other attorney from the Florida Antitrust Division that there was a critical period during which Hewitt's testimony was wanted, or that they were in any manner dissatisfied with the cooperation given by Hewitt after the grant of immunity. This witness also testified that an offer by Hewitt to settle any charges against him by an offer to pay damages to the state was flatly rejected by the antitrust division and that he was told that if Hewitt cooperated with the antitrust division they would decide after the fact what action they would take against petitioner. Prior to the revocation of its Certificate of Qualification in 1984, Square D and subsequently Hewitt Contracting Co., Inc., enjoyed a reputation as a competitive bidder who completed projects in a timely and professional manner. Two witnesses employed by Respondent in the area of Petitioner's headquarters opined that reinstatement of Petitioner's Certificate of Qualification would enhance the road building and construction work in Florida by the addition of Petitioner as an active participant in the bidding process. Subsequent to the conviction in the Federal Court Petitioner prepared a Code of Conduct for Employees of Hewitt Contracting Company (Exhibit 4) and distributed this to all personnel involved in preparing bids for Petitioner. Additionally, Howard H. Hewitt personally approves all bids submitted by Petitioner and supervises those preparing these bids. Howard H. Hewitt expressed remorse about the company's prior activity leading to the conviction and is committed to ensuring that it never occurs again.
Findings Of Fact On January 20, 1988 the City made application to the Department for issuance of a dredge and fill permit to replace an existing wooden bridge known as the Lynnhaven Terrace Bridge which crosses Deep Bottom Creek in Duval County, Florida. At that time the existing bridge was a two lane timber bridge measuring approximately 20 feet wide, having two spans of 19 feet and 14 feet respectively with associated guardrails. The replacement bridge was to be 44 feet wide and 37 feet long. Subsequently, a revision was made to the permit application which called for reduction in the width of the bridge to 39 feet. A copy of the original application may be found as City's Exhibit 2 admitted into evidence and the revision was received as City's Exhibit 3. The bridge in its revised format would include two paved lane and two sidewalks on the outside of those lanes. This bridge too would have guardrails. The bridge replacement project would involve the dredging of approximately 122 cubic yards of material from the creek bottom and the installation of 12 concrete pilings along the riverbank. Approximately 4.75 cubic yards of fill will be placed below the mean high waterline and 690 cubic yards above that line. Stabilization of the north and south banks of the side of the bridge will be accomplished with 160 linear feet of sheet pile wall. The total acreage to be filled is approximately 1.1 acres with 0.002 acres being in wetlands or open waters within the Deep Bottom Creek. By this arrangement, part of the activities are within waters of the state and the upward extent of those waters and confer jurisdiction on the Department to require a dredge and fill permit and water quality certification. The jurisdiction of the Department extends to the mean high waterline of the creek in accordance with Section 403.913(2), Florida Statutes, and this takes into account the opportunity to examine the implications of dredging and filling associated with the project. The waters at issue are Class III waters. Black Bottom Creek is part of a drainage basin leading to the St. Johns River, a major water body. The reason for this project concerns the present bridge's deteriorating condition as shown in the City's Composite Exhibit 1, a series of photos. The bridge is in such disrepair that it has been downgraded in its load rating to three (3) tons, which is inadequate to support heavy vehicles, to include emergency vehicles such as firetrucks. With the advent of the concrete bridge, this problem would be rectified. An attempt to effect repairs on the existing bridge is not a reasonable choice for the City. The Department, in response to the application, conducted an assessment of that application or appraisal to include biological and water quality concerns. A copy of the report rendered in response to the application may be found as the Department's Exhibit 1. That report favors the grant of a permit in water quality certification and at the date of hearing that opinion was still held by the Department. The report points out that the project would straighten out a problem with a curve in the creek course by the choice of location for the new bridge. This arrangement will assist in the flow pattern and give a positive influence in preventing shoaling underneath the existing bridge. It will also positively affect the problem of the erosion in the upland area of the existing bridge which causes deposition of material into the creek bottom. The report describes the fact that steps to contain turbidity during the construction phase can be achieved. Having been satisfied concerning this application, an Intent to Issue a Permit and water quality certification was stated on April 15, 1988. A copy of the Intent to Issue may be found as Department's Exhibit 2 admitted into evidence. The permit was to be issued on condition concerning the question of authority to operate in waters of the state as contemplated by Chapter 253, Florida Statutes. That matter is not one for consideration in the present dispute. It also refers to preservation of historical and archeological artifacts. There has been no demonstration that such artifacts exist in the area of this project. The turbidity control mechanisms were mentioned as a special condition and as suggested before, those matters can be attended by this applicant and are expected to be. There is reference to doing the work at periods of average or low water, and there was no indication that this could not be accomplished by the applicant. On April 19, 1988 the actual permit was rendered and had attached letters of April 18, 1988 advising the City that it could contest the permit terms and the fact that others might promote objections to the permit and water quality certification. In fact, a number of land owners in the general vicinity of the project have contested this permit application leading to the present hearing. The petition and challenge to the intention to grant a permit was timely made. The Petitioners are Mr. and Mrs. John Jordan, Mr. and Mrs. Ian Ablett, Mr. Keith Kelly, Ms. Dorothy Brown, Mr. Hal Moyle, Ms. Holly Baker, Ms. Beatrice Diomont, J. H. Cater, Mr. and Mrs. W. Reed, Mr. and Mrs. H. Carrell, Mr. Harvey Jay, Ms. K. C. Walsh and Donald Braddock. Only Mr. and Mrs. Ablett, Mr. Kelly, and the Carrell's attended the hearing and established their standing to challenge the intended agency action. Moreover, the nature of their challenge as set forth in their petition has been restricted by a ruling which struck reference to the alleged influence which this project has on property values associated with a lack of sensitivity for aesthetics in exchanging the wooden bridge for a concrete pile bridge. Otherwise, the Petitioners through the presentation at hearing spoke in terms of shoaling at the site as a matter of their concern. This problem is not one which is attributable to the City and its activities, it is related to commercial activities upstream from the project site. As described, if anything, the project will alleviate those problems to some extent. Additional reasons which the Petitioners advanced in opposition concern the belief that they did not need a new bridge, that the bridge was too wide and that they did not need sidewalks and guardrails. Notwithstanding their perceptions, the overall public needs would favor the replacement of the bridge to include wider lanes and sidewalks for safe pedestrian passage. Again, at present, there are no sidewalks with the existing bridge. The expression of opposition by the Petitioners beyond the reference to the shoaling problem and the effects on water levels is not a matter of environmental concern contemplated by the permit application review process under consideration here. On May 13, 1988, the Department of the Army issued a permit for this project, a copy of which may be found as City's Exhibit 4 admitted into evidence. In addition, the Coast Guard has no opposition to this project and has said as much in its correspondence of May 2, 1988, a copy of which may be found as City's Exhibit 5 admitted into evidence. The immediate and long term impacts of this project are not violative of applicable state water quality standards, in that reasonable assurances have been given that those standards will not be exceeded. This project is not contrary to the public interest. It is not adverse to public health, safety or welfare or property of others. The project will not adversely affect the conservation of fish and wildlife, to include endangered or threatened species or other habitats. The project will not adversely affect navigation or the flow of water which will cause harmful erosion or shoaling. The project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The project is permanent in nature but over time it will not have adverse impacts on the environment. Considering the current conditions and diminished value of environmental functions being performed by the area, they are not particularly significant at present and the project will not change that posture, in fact it may improve the circumstance. Specifically, at present no endangered or threatened species are found within the creek. There had been some wildlife activity, but continuing problems with silting or shoaling have occurred since the homeowners in the area dredged the creek bottom, and wildlife has decreased as a result. This relates to the upstream activities which continue to promote problems in the creek bottom. On the subject of navigation, limited navigation is available by small boats or canoes at present, and the elevations of the replacement bridge are such as to not interfere with that activity.
The Issue Whether Petitioner has standing to administratively challenge, on the ground that navigation will be adversely affected, the Department of Environmental Regulation's determination, announced in its May 2, 1989, Notice of Permit Issuance, to issue Permit No. 061594966 authorizing Respondent Avatar Corporation to conduct dredge and fill activities in the Northwest Channel in Broward County, Florida, in connection with the construction of a fixed span bridge traversing that waterway? Whether its challenge was timely instituted? Whether the permit should be issued and under what additional conditions, if any?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a homeowners association. Its 300 dues-paying members 1/ own homes in an area of the City of Hollywood bounded on the north by Sheridan Street, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by U.S. Highway One. Avatar is a developer. It owns land in the City of Hollywood that it has platted and now desires to develop into a residential community known as Harbor Islands consisting of, among other things, 3,175 dwelling units, a hotel, and retail stores. In addition, four parcels of land (Parcels 2, 3, 11 and 11A) within the planned community, totaling approximately 30 acres, have been dedicated to the City of Hollywood for use as public park land. Avatar's right to develop this land for residential use was affirmed in the final judgment entered in Broward County Circuit Court Case No. 72-4252 on September 20, 1974, as supplemented by the supplementary final judgment entered in that case on December 17, 1981. Neither Petitioner, the Department, nor any other state agency was a party in Broward County Circuit Court Case No. 72-4252. The land that Avatar seeks to develop is situated on three islands and is bounded on the north by the Washington Street Canal, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by the DeSoto Waterway. Two waterways, the Venetian Waterway and the Northwest Channel, run through the interior of the planned Harbor Islands development (Development). The Venetian Waterway lies between the two southernmost of the Development's three islands. From its northern terminus at the Northwest Channel, it follows a southerly course beyond the southern boundary of the Development and into the City of Hallandale. On its southward trek, it passes under two bridges, one within the Development and one in the City of Hallandale. These bridges are of the fixed span variety and both have a vertical clearance of approximately ten to 12 feet. The Northwest Channel separates the northernmost of the Development's three islands from its other two islands while connecting the DeSoto Waterway with the Intracoastal Waterway. It is a man-made canal, the construction of which was the subject of a 1969 agreement between Avatar's predecessors in interest, who will hereinafter be referred to as the "Mailmans," and the City of Hollywood and Broward County, among others, 2/ that settled a lawsuit the Mailmans had filed. Numbered paragraphs 5, 6, 12 and 15 of the agreement provided as follows: NORTH AND SOUTH CHANNELS. The MAILMANS agree to construct and perpetually maintain at their expense, a channel or canal, running from the southerly portion of the DeSoto Waterway, as shown on Exhibit B, attached hereto, the same to be located in the vicinity of the present existing channel or within 500 feet south thereof, and in a like manner to construct and maintain a similar channel or canal, running from the northerly portion of the DeSoto Waterway, easterly to and connecting with the Intracoastal Waterway as shown on Exhibit B, attached hereto. Said channels shall have a minimum depth of 10 feet and shall be sufficient for all vessels requiring a clearance of 16 feet, and a minimum width of 100 feet. The parties acknowledge that the purpose of said channels or canals is to provide the general public the unobstructed and perpetual means of navigable access to the Intracoastal Waterway from any part of the DeSoto Waterway both north and south of Northeast Ninth Street. BRIDGES. The parties agree that the MAILMANS shall have the right to construct bridges, at their expense, across the aforesaid channels described in paragraph 5, hereinabove, together with necessary approaches and abutments. Said bridges shall be either "turntable" or stationary bridges, of a minimum height of 16 feet, as measured at high tide, with a clear span of not less than 30 feet. The parties further agree that the MAILMANS shall have the right to construct at their expense a bridge across DeSoto Waterway at Northeast Ninth Street, together with necessary approaches and abutments, which bridge shall be the only one not required to have clearance of 16 feet. Said bridge, together with necessary approaches and abutments, if constructed, shall be of such size and construction as shall not block, obstruct or interfere with the use of any part of Diplomat Parkway or Northeast Ninth Street lying west of DeSoto Waterway as each public thoroughfare presently exists. The parties further agree that under no circumstances shall any bridge be constructed so as to hinder or obstruct perpetual and navigable access of vessels requiring a minimum clearance of 16 feet at mean high tide, to the Intracoastal Waterway from any part of DeSoto Waterway lying North and South of Northeast Ninth Street. The MAILMANS agree that in the event of the aforesaid construction, they shall permanently maintain said bridges in safe working order. Said parties further agree to provide, at their expense necessary personnel to operate all turntable bridges at all times. 3/ 12. COVENANTS RUNNING WITH THE LAND; RECORDING. The parties agree that all of the covenants contained in Paragraphs 4, 5, 6, 7, and 8, herein are to be construed as running with the land; that a copy of this Agreement is to be recorded among the public records of Broward County, Florida; and that appropriate reference or specific designation of this agreement is to be made in any instruments of conveyance or development by deed or plat or otherwise, which shall be executed by the MAILMANS, their successors or assigns, as to any property described on pages 1 or 6 hereinabove. 15. BINDING EFFECT. All rights and obligations under this Agreement shall be binding upon and inure to the benefit of and be enforceable by successors, assigns, nominees, heirs and personal representatives of the parties. As the plat for the Development reflects, the Northwest Channel is privately owned by Avatar and has not been dedicated to any governmental entity. 4/ The depth of the water in the Northwest Channel ranges from approximately ten to 12 feet at its shallowest point to approximately 25 feet at its deepest. At present, there are no bridges crossing the Northwest Channel. The Northwest Channel is the only means of access to the Intracoastal Waterway for boats using the DeSoto Waterway north of the Atlantic Shores Boulevard (Northeast 9th Street) bridge in Hallandale (which portion of the waterway will hereinafter be referred to as the "Northern DeSoto Waterway") and the Washington Street Canal west of the culvert crossing at Three Islands Boulevard (which portion of the waterway will hereinafter be referred to as the "Western Washington Street Canal") that are too tall to safely navigate under the Atlantic Shores Boulevard bridge, which is a fixed span bridge and has a vertical clearance of approximately six to eight feet. 5/ The Northern DeSoto Waterway and the Western Washington Street Canal are used by pleasure boaters and water skiers. Neither watercourse has a high volume of traffic. Approximately 35 of Petitioner's members own waterfront homes adjacent to the Development on the other side of either the Washington Street Canal (which homeowners have a Washington Street address) or the DeSoto Waterway (which homeowners have a Diplomat Parkway address). Most, if not all, have docks behind their homes. 6/ They do not have to rely on marine transportation to reach their homes, however, inasmuch as they have easy access to their property by land. One such homeowner is Kenneth Hark, who lives at 1415 Diplomat Parkway. Hark owns a boat, the "Marcy," that he docks behind his home on the DeSoto Waterway south of where it meets the Northwest Channel. The "Marcy" is approximately 34 feet long. With its outriggers extended, it is approximately 30 feet high. It is approximately 18 feet high with its outriggers lowered. Hark uses his boat approximately once a week. Because of the height of his boat, he must traverse the Northwest Channel to get to the Intracoastal Waterway. Rowland Schaefer is another member of Petitioner who lives along the DeSoto Waterway and docks his boat behind his home. His boat is approximately 60 feet long, 17 to 18 feet wide and 25 to 28 feet high. There are other boats that are regularly docked on the Northern DeSoto Waterway and the Western Washington Street Canal. One of these boats is the "My Lady," which is approximately the same height as Hark's boat. Homeowners living along the Northern DeSoto Waterway and the Western Washington Street Canal also occasionally have visitors who arrive by boat. For instance, Hark's next door neighbors have an adult son who, on occasion, comes to their home in a sailboat that is approximately 40 feet in height. Another boat that brings visitors to the neighborhood is a vessel that is approximately 80 to 90 feet long and 25 to 30 feet high. About three to five times a year this boat docks behind the Cowan residence. In mid-December of 1988, Avatar submitted a "short form" application to the Department for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel at Three Islands Boulevard, where the average depth of the water is approximately 15 feet. The proposed bridge would connect the northernmost of the Development's three islands with the southern island that lies to the west of the Venetian Waterway. The project and its anticipated impacts were described in Avatar's response to Item 10 on the application form as follows: The applicant proposes to construct a fixed bridge approximately 220 feet long and 71.25 feet in width to provide access for development of the northernmost island of the Harbor Islands Development community. The proposed bridge will have a vertical navigational clearance of 17.04 feet above mean high water, 19.34 above mean low water, and a horizontal clearance of 51.83 feet between pile caps. There will be no dredging and filling associated with the proposed work, and no significant encroachment of the floodplain will occur. Benthic vegetation along the slopes of the Northwest Channel consist primarily of green algae, including sporadic stolons of Caulerpa sertularioides. In deeper portions of the channel, where light is limited, the benthic substrate is barren. Water quality impacts will be temporary in nature, with turbidity controls such as but not limited to turbidity curtains implemented to ensure that turbidity values do not exceed 29 N.T.U.'s above background. Item 5 on the application form requested the "NAME AND ADDRESS INCLUDING ZIP CODE OF ADJOINING PROPERTY OWNERS WHOSE PROPERTY ALSO ADJOINS THE WATERWAY." Avatar's response was "None." Aside from Avatar there were no other private property owners who owned land adjoining the Northwest Channel. Accordingly, Avatar's response to Item 5, to the extent that it conveyed such information, was accurate. Avatar's application was processed and reviewed by staff in the Department's Southeast District office, who in February of 1989, sent Avatar a letter advising it that the application was incomplete and that additional information and clarification was needed. The letter provided as follows with respect to Avatar's response to Item 5: Item No. 5 was not completed. Please provide the name and address including zip code of the nearest adjoining property owners with waterfront residence. On or about March 8, 1989, Avatar submitted a written response to the Department's February, 1989, letter. The response stated the following regarding "adjoining property owners:" The proposed project is located in the center of a large piece of property owned exclusively by [Avatar]. There are no adjoining property owners. The nearest potential adjoining property owners are located over 2000 feet from the proposed project site. In fact, Avatar did not own all of the property within the Development. It had dedicated certain land to the City of Hollywood and therefore no longer owned the entire property. Among these parcels of land that Avatar had dedicated was Parcel 11. Parcel 11 is located on the northernmost island of the Development a short distance (approximately 250 feet) to the north of the site of the proposed bridge. Furthermore, there were private homeowners with waterfront residences on the DeSoto Waterway and Washington Street Canal, including members of Petitioner, who also owned property less than 2,000 feet from the proposed project site. The Department did not forward a copy of Avatar's application to these or any other homeowners. Neither did it require Avatar to publish notice of the filing of the application. It, however, did send a copy of Avatar's application to the Mayor of the City of Hollywood and the Chairperson of the Broward County Board of County Commissioners, accompanied by a letter advising them of a local government's right to timely file objections to an application for a dredge and fill permit and to request an administrative hearing after receiving the Department's notice of intent to issue the requested permit. Neither the City of Hollywood nor Broward County filed any objections to Avatar's application. Moreover, no member of the general public commented on the application. On May 2, 1989, the Department issued a notice of its intent to grant Avatar's application for a dredge and fill permit (Permit No. 061594966). The notice explained that a person whose substantial interests were affected by the granting of the permit had a right to file a petition for an administrative hearing within 14 days of his or her receipt of the notice and that the Department's issuance of the permit would be considered "final" if no such timely petition was filed. A copy of the notice was mailed to Avatar, as well as the United States Army Corps of Engineers, the Department of Natural Resources, the Broward County Environmental Quality Control Board and the Broward County Property Appraiser. Neither Petitioner nor its members were sent a copy of the notice. There was no publication of the Department's notice. On August 30, 1991, Avatar requested that Permit No. 061594966 be modified to reflect a reduction in the length of the permitted bridge from 220 feet to 130 feet. The plans submitted by Avatar in support of its request indicated that the modified structure would have a vertical clearance of 17.1 feet at mean high water and 19.4 feet at mean low water and a horizontal clearance of 52 feet. In October of 1991, the Department approved the requested permit modification. Avatar was notified of the Department's decision by letter, a copy of which was sent to the United States Army Corps of Engineers, the Department of Natural Resources and the Broward County Office of Natural Resource Protection. The letter described the modification as "minor." Pilings that will support the bridge have already been driven and are in place. If construction of the bridge is completed in accordance with the plans approved by the Department, some boaters who now use the Northwest Channel as their sole means of travelling back and forth between the Northern DeSoto Waterway and Western Washington Street Canal to the west and the Intracoastal Waterway to the east will no longer be able to do so because their boats will be unable to safely navigate under the bridge. While the bridge will not be able to accommodate all of the boats that currently use the Northwest Channel, its vertical clearance is greater than that of the typical bridge crossing a canal in a residential area. To redesign the bridge to raise its vertical clearance several feet would require lowering the design speed to approximately ten to 15 miles per hour, which would pose a potential safety hazard. Navigational problems associated with vertical clearance would be eliminated if Avatar constructed a turntable bridge or a drawbridge instead of a fixed span bridge. Turntable bridges and draw bridges, however, are considerably more costly to build and maintain than fixed span bridges of comparable size. Furthermore, because of concerns regarding incompatibility, they are generally not constructed in residential neighborhoods. Petitioner first became aware of the issuance of Permit No. 061594966 in the spring of 1992, when two of its members visited the Department's Southeast District office and reviewed the contents of the Department's file on the permit, including Avatar's application for the permit and the Department's notice of its intent to grant the application. 7/ After its Board of Directors voted to challenge the issuance of the permit and the membership assented to launch such a challenge, Petitioner filed its request for a formal hearing on the matter. 8/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a final order granting Avatar's application for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel as the Department proposed to do in its May 2, 1989, notice of intent to issue Permit No. 061594966. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of December, 1992. STUART M. LERNER 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 31st day of December, 1992.
Findings Of Fact Blackhawk is the owner of a mine located in Palm Bay, Florida, which, since 1982, has produced cemented coquina shell material for use as a base material in the building of roads. FDOT is the state agency responsible for the construction and maintenance of state roads. FDOT approves sources of supply of road base materials, including cemented coquina shell, for use by contractors in the construction of FDOT road projects. FDOT approval is intended to assure that the producer is capable of providing material in accordance with the standard specifications for that material. Approved source status is required for a producer to sell its material to a contractor for use on FDOT projects, or on non-FDOT projects (some cities and counties) which require that material be from an FDOT-approved source. Approval may be obtained upon the producer's request, after inspection and evaluation performed by FDOT's Bureau of Mining and Materials in accordance with the Standard Operating Procedure for Evaluation, Approval and Control of Mineral Aggregate Sources ("SOP") and Section 915 of FDOT's Standard Specifications for Road and Bridge Construction (("Section 915"). Approval does not guarantee that the producer's material will be used by a contractor. Contractors bidding on FDOT projects are given options of base materials from which to choose. Once the base material is chosen, the contractor selects a producer from the FDOT approved source list. A source's approval will expire if it has not furnished material for Department usage for a period of one calendar year; that period may be extended for one additional year upon the producer's written request. Section 915 defines the composition of cemented coquina shell material, provides for approval of material sources in accordance with the SOP, provides that the material shall be free of specified deleterious substances and sets forth the physical and chemical properties of the material, including the requirement that, "the minimum percentage of carbonates of calcium and magnesium shall be 50." (Petitioner's exhibit #2) Prior to amendment in 1986, Section 915 contained a provision granting the State Materials and Research Engineer the discretion to waive the requirement for minimum carbonates content if the material was determined to be equally suitable for its intended use. The 1986 amendment removed the waiver provision. The 50 percent minimum carbonate content provision has been in effect since 1969 or 1970. Section 915 is less than two pages within a 786-page document ("the Blue Book") entitled FDOT Standard Specifications for Road and Bridge Construction, 1986 Edition. The October 1986 version of Section 915 is in a separate two-page supplement. The Blue Book covers a vast array of subjects relating to contracts, construction, and materials for roads and bridges. The specifications change to keep up with developments in technology. The changes are placed in packets of supplemental provisions, like the current version of Section 915, and those provisions are eventually printed in a new edition of the "Blue Book". The standard specifications are incorporated into all FDOT road and bridge construction contracts, along with relevant supplements, and with "special provisions" which address the unique requirements of the project under contract. The SOP is a 28-page document which (in its words) "...establishes the Florida Department of Transportation's policy of accepting Limerock, Cemented Coquina and Shell Base materials produced for Department use through a producer Quality Control (QC) Program... [and] ...provides the producer with information related to the methods and levels of source approval, the minimum requirements for QC programs and approval, and the criteria by which the Department will maintain that approval. ..." (Petitioner's Exhibit #3, SOP, p. 1) Neither Section 915 nor the SOP have been adopted as rules pursuant to the requirements of Section 120.54, F.S. Blackhawk was an FDOT approved source of cemented coquina shell material in 1983 and 1984. The mine was given conditional approval in January 1985, for six months. The conditional approval expired in July 1985, and approval was suspended for failure to meet the carbonates requirement of Section 915. Blackhawk was not granted a waiver. While it was approved, Blackhawk provided material for two FDOT projects and for several other projects that required FDOT approval. Approximately one- third of its projects had a requirement that the rock come from a DOT-certified source. Blackhawk lost an ongoing contract on a county road project as a result of FDOT's suspension of its approval. Blackhawk continues in business, selling its material to sources which do not require FDOT approval. Blackhawk's President, Andrew Machata, has met with various individuals at FDOT regarding its status and Section 915 and the SOP. Initially, he was told that he had no administrative remedies, as FDOT personnel does not consider the process as subject to the Administrative Procedures Act. There is now pending a Section 120.57(1) F.S. proceeding related to Blackhawk's claim that it should be an approved source. (DOAH #85-4366) FDOT has promulgated administrative rules governing the prequalification of contractors to bid on FDOT projects, Chapter 14-22 FAC, and rules of procedure governing contract bidding and bid protests, Chapter 14-25 FAC. FDOT grants administrative remedies in both the prequalification procedure and in the bidding and bid award procedures. Blackhawk is not qualified to bid as a prime contractor of FDOT projects, nor is it seeking that qualification. It is seeking approval as a source of cemented coquina shell material, without which approval it cannot sell material to prime contractors for projects requiring FDOT approval.
Findings Of Fact During the applicable time period, the Respondent was a certified building contractor in the state of Florida and held license number CB C026049. On or about January 6, 1986, the Respondent was hired by West Coast Remodeling & Construction Company. The Respondent was hired as an employee to supervise a building project based on a contract between West Coast and Clarence Harrod for the building of a quadriplex in Rotunda West, Florida. On January 17, 1986, the Respondent applied for a building permit for the Harrod project. The Respondent represented on the permit that he was the builder on the project instead of West Coast, who had the written contract with Harrod. Neither of the principals in West Coast, Gunnar Jacobsen or Gerald Hanley, held a building contractor's license and a licensed contractor was necessary to obtain the permit for the project. After the application for the permit was completed, but before the building permit was issued, the Respondent received a document from West Coast evidencing that the Harrod contract was assigned to him as an individual. At the time the Charlotte County Building Permit was actually issued, the Respondent was the assignee of the Harrod contract. Although the assignment was in effect on January 22, 1986, West Coast continued to receive the funds from Mr. Clarence Harrod, who was not notified of the assignment of the contract. The Respondent either allowed or acquiesced in the continued management of the project and the building funds by West Coast until April 15, 1986. Sometime between January 17, 1986, and January 31, 1986, the Respondent became a shareholder in West Coast. By April of 1986, the Respondent was a corporate officer and had a one-third interest in the corporation. The corporation had three shareholders: the Respondent, Gunnar Jacobsen, and Gerald Hanley. Although all three men were corporate officers, the Respondent was to supervise new construction projects, Jacobsen was to handle administrative affairs and solicit new work, and Hanley was to supervise the remodeling jobs obtained by Jacobsen. In April of 1986, the Respondent determined that there were insufficient funds in the corporate accounts to complete the Harrod project if overhead costs were not reduced immediately. This insight was acquired by the Respondent around the same time the following events occurred: A. Mr. Harrod complained in early April that the job was taking too long. The project was still in the framing stage, and Mr. Harrod was asked for $15,000 of the $25,184.44 draw which was set aside in the contract for the drywall phase of the project. B. Smaller projects that West Coast had in progress, such as three concrete jobs, were found to be unprofitable by the principals in the company. C. Jacobsen was complaining to the Respondent and Hanley, the other two corporate officers, that framing costs were too high on the Harrod project. D. The Respondent and Hanley had decided, between themselves, that Jacobsen was not earning his salary with the corporation because he was not acquiring the new remodeling jobs for the company that he was supposed to under their business arrangements. On April 15, 1986, Hanley and the Respondent locked Jacobsen out of the corporate offices and removed all the money in the corporate accounts, including the money involved in the Harrod project. On April 22, 1986, an agreement was signed by Jacobsen, Hanley, and Respondent which dissolved their business relationships. Pursuant to the agreement, the Respondent resigned his position as an officer in West Coast and assigned his stock in the corporation to Jacobsen. The Respondent and Hanley were also required to make an accounting of the corporate funds removed from the corporate accounts on April 15, 1986. The agreement does not reveal whether the Harrod project was to remain with West Coast or the Respondent. However, the project did remain with West Coast, and the Respondent contacted the Charlotte County Building Department to remove his name from the building permit effective 8:00 a.m., April 23, 1986. When the business relationship between the corporate principals was dissolving in April, the Respondent had contact with Mr. Clarence Harrod. He did not tell the owner about the assignment of the contract to him on January 22, 1986, nor did he advise the owner of the cost overruns which he now asserts were a reason for his resignation from the corporation. The documents attached to the April 22, 1986, agreement reveal that the Respondent was aware of the need for two releases of lien totalling $40,185 on the Harrod project at the time he left the corporation and allowed the corporation to take back and continue with the Harrod project. The Respondent appears to have commingled corporate funds with the Harrod project funds when the funds were under his and Hanley's joint control. During the seven days the Respondent and Hanley had joint control of the $11,611.88 seized from West Coast, the Respondent was paid $2,026.30 and Hanley was paid $2,633. On April 22, 1986, $5,281.97 was returned to West Coast with a list of acknowledged outstanding bills totalling $1,711.17. During the period of time between the assignment of the Harrod project to the Respondent on January 22, 1986, and the takeover of the project by West Coast on April 22, 1986, the Respondent accepted his legal responsibilities as a licensed contractor only on the occasions where it best served his most immediate personal interests.
