The Issue The Administrative Complaint in this cause charges that the subject sign violates Sections 479.071 and 479.021(a), Florida Statutes, and Rule 14-10.09, Section 3, Florida Administrative Code, which is the same as Rule 14-10.06(b)2 (b), Florida Administrative Code, supra. The Respondent admits ownership of the outdoor advertising structure and that it does not bear a tag as required by Chapter 479, Florida Statutes; however, the Respondent asserts that the sign in question qualifies as an exception and is entitled to a tag pursuant to the provisions of Section 479.111, Florida Statutes. The Petitioner asserts that the sign does not qualify for a tag and stipulates that had the Respondent applied for a tag that said application would have been denied. The Respondent also contends that the sign is exempt from operation of the outdoor advertising law in all respects pursuant to the provisions of Section 479.16(1), Florida Statutes. Based upon the foregoing, the following issues of fact are raised: Is the subject sign an on-premises sign for purposes of the exemption stated in Section 479.16(1), Florida Statutes, and Is the sign located in an unzoned commercial or industrial area as defined by Section 479.111(2) and Rule 14- 10.06(b)(2)(b), Florida Administrative Code, and Does the subject sign meet the spacing requirements set forth in Rule 14-10.06(b)(2)(b), Florida Administrative Code?
Findings Of Fact The parties stipulated to the facts as found in paragraphs 1 through 10 below. The subject advertising structure is an advertising sign as defined by Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. The subject sign is located in Jackson County, Florida. The subject sign is not within the corporate city limits of any city or town. The subject sign is within 660 feet of Interstate 10. The subject sign is owned by the Respondent, Fuqua & Davis, Inc., a Florida corporation. The subject sign does not have a permit as required by Chapter 479, Florida Statutes. The Petitioner, Department of Transportation, would not issue a permit as required by Chapter 479, Florida Statutes, for the subject sign. There is no zoning in Jackson County, Florida. Interstate 10 is an interstate highway as defined in Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code, and said interstate highway was open for vehicular traffic at the time sign was erected. The subject sign is located at the interchange of State Road 71 and Interstate 10. In this location, there were three commercial enterprises located prior to the construction of Interstate 10. Two of these commercial enterprises, Malloy Wholesale Gladiola Farms and Grant Cabinet and Millworks, still exist and are identified on Petitioner's Exhibit 1, an aerial photograph. The third business was removed during the construction of the interchange. The area surrounding the interchange of State Road 71 and Interstate 10 is an unzoned commercial area. This finding is based upon the testimony of a real estate appraiser together with the businesses which are located in this area. These businesses include Malloy Wholesale Gladiola Farms, Grant Cabinet and Millworks, a retail grocery store, and a major regional truck center (truck- stop). The area surrounding the intersection of State Road 71 and Interstate 10 is unzoned commercial and the subject sign is located in such an area. The location of the subject sign is identified on Petitioner's Exhibit 1, an aerial photograph. The subject sign is located adjacent to an interchange on an interstate highway. It is not located on the premises of the business advertised. A diesel pump is located within 20 feet of the signs; however, the pump and sign are over 1,000 feet away from the advertised business on non- contiguous property.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Final Order of the Department be issued requiring removal of the sign within thirty (30) days by the Respondent. DONE and ORDERED this 28th day of November, 1984 in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charles Gardner, Esquire Department of Transportation Haydon Burns Bldg., MS-58 Tallahassee, Florida 32301 James J. Richardson, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302 Mr. Paul Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of November, 1984.
The Issue The issue for consideration in this case is whether Respondent's certification as an electrical sign specialty contractor in Pinellas County, Florida, should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board, was the county agency responsible for the regulation of the construction industry within the county and the certification of practitioners of the construction trades within the county. Respondent, Jack R. Garrison, Jr., was licensed as an electrical sign specialty contractor on May 11, 1995. His certification was received on October 1, 1997, but was suspended on July 30, 1998. It was on suspended status at all times pertinent to this case. On October 15, 1998, based on the recommendation of his landlady, Constance Parise, who had had prior dealings with the Respondent, Richard A. Swoager, owner of Planet Rubber, located at 2620 State Road 590 in Clearwater, Florida, contracted with Respondent, doing business at Garrison & Associates Sign Company, Inc., to have Respondent construct and install two new sign faces on the client's existing Coachman square pylon sign. Contract price for the removal and destruction of the old faces, the fabrication and installation of the new faces, and the installation of up to two florescent lamps, was $1,775.00 in addition to $124.25 in sales tax. Respondent requested and received an advance, at the time of signing the contract, a deposit of 50 percent of the total price, $949.62. The contract noted that the fabrication and installation was to be completed by November 1, 1998. Respondent assured the client at the time of signing the contract that the art work for the project would be ready for the client approval within one week. The art work was not presented to the client, not withstanding the client called Respondent to inquire about it several times. After making several calls to Respondent's place of business in unsuccessful efforts to obtain the work contracted and partially paid for, and just before the November 1, 1998, deadline, Mr. Swoager left word with Respondent's office that he wanted to cancel the contract and have his deposit returned. On October 26, 1998, after that notice, Mr. Swoager found a note from an individual by the name of Tracy Garrison, whom he believed to be Respondent's wife, representing that Respondent would deliver the deposit return by noon of that day. The money was not returned. Mr. Swoager enlisted the aid of his landlady, Ms. Parise, who had referred Respondent, in obtaining the return of his deposit. Ms. Parise made several phone calls to the Respondent but was unable to reach him. She also sent the Respondent a fax request for the return of the deposit and finally reached him. During this contact on October 25, 1998, eight days after the signing of the contract, Respondent advised Ms. Parise he did not want Mr. Swoager's business and would return the deposit. He reiterated the promise to return the deposit in a fax to Mr. Swoager dated October 28, 1998, specifically indicating the money would be delivered that day. It was not delivered. At not time did Respondent accomplish the work called for in the contract, nor did he return any of the funds paid as deposit. At no time during the period of the negotiation for or the signing of the contract, or at any time thereafter, did Respondent possess an active certification under which he could contract for or perform the work in question here.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order revoking Respondent's certification as an electrical sign specialty contractor in Pinellas County, Florida. DONE AND ENTERED this 10th day of August, 1999, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1999. COPIES FURNISHED: William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 33773-5116 Jack R. Garrison, Jr. 2249 Cypress Point Drive, West Clearwater, Florida 33763
Findings Of Fact On, or about, November 20, 1991, HRS released ITB 92-18BC. ITB 92-18BC was an invitation to bid on HRS' procurement of a data processing cartridge tape subsystem for Unisys computers. Prior to the issuance of the ITB, HRS conducted a bidder's conference. The bidders' conference was attended by representatives of HRS, Unisys and StorageTek. Vendor representatives at the bidders' conference were informed that HRS would "attempt to answer the questions in the best" possible manner. Vendors were also instructed that the answers received at the bidders' conference were "not binding, are not official, and must be submitted in writing to receive an official answer." Additionally, the ITB contains language stating that any questions concerning specifications or conditions were to be submitted in writing to HRS and that no interpretation shall be binding on HRS unless it is in writing. StorageTek and Unisys submitted written questions pursuant to the above mentioned instructions. The only relevant inquiry submitted by Unisys had to do with the requirement of "one (1) dual path controller with redundant paths for each string." Pursuant to Unisys' request, HRS modified that requirement to read "At least one (1) dual path controller with redundant paths for each string." The only relevant written inquiry submitted by StorageTek is found on page 14 of the written inquiries of the ITB. The written inquiry by StorageTek asked whether HRS would consider the total automation through an RFP rather than only a small piece of total automation through an ITB. HRS responded negatively stating that the success of this ITB will be based on using current allocations to fund the change to cartridge tape. Following the issuance of ITB 92-18BC, StorageTek filed a notice of intent to protest the specifications of the ITB. StorageTek never filed a formal notice of protest and subsequently withdrew the notice of intent to protest the bid specifications. The ITB as finally issued states its "Purpose" as "The purpose of this Invitation is to obtain competitive bid prices for a data processing cartridge tape subsystem, with installation components and maintenance, to be attached to Unisys A17-L and A15-I computers located at the HRS Technology Centre, 1940 North Monroe Street, Tallahassee, Florida." The ITB also contains the following hardware "Quantities and Technical Specifications": The following minimum specifications shall govern any equipment offered: Twenty-eight (28) cartridge tape drives configured as follows: One (1) string of sixteen (16) tape drives One (1) string of eight (8) tape drives One (1) string of four (4) tape drives At least one (1) dual path controller with redundant paths for each string In the General Conditions, the ITB states Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. In bold print at the bottom of the "General Conditions" is found: "NOTE: ANY AND ALL SPECIAL CONDITIONS AND SPECIFICATIONS ATTACHED HERETO WHICH VARY FROM THESE GENERAL CONDITIONS SHALL HAVE PRECEDENCE." The ITB also contains the following "Special Conditions": The Office of Management Systems intends to acquire robotic tape units within 24 months to manage approximately 20,000 tapes. The future value of the cartridge tape drives toward this goal will be a consideration in this bid. If the purchased tape drives will directly attach to the robotic units then 100% of the value is maintained. However, if the tape drive unit must be replaced then a trade-in value must be bid (see Cost Table). Auto load trays are considered part of the tape drive unit. The Office of Management System also must be able to connect these tape drives to an IBM computer in the future. This capability is mandatory and must be stated with supporting documentation. The hardware/software to accomplish this goal is not part of this bid, but associated cost should be identified in the documentation provided. The ITB also specified that "[t]he award will be made to the responsive bidder with the lowest bid price for 'Net Future Cost'." Finally, the ITB contains the following pricing sheet formula for calculating cost, the blanks of which were to be completed by the bidder: CARTRIDGE TAPE SUBSYSTEM COST $ Includes all costs for specified 28 cartridge tape drives . . . . LESS TRADE-IN ALLOWANCE ( ) (see specified Bid Condition #5 and 13) SUPPLIES MAINTENANCE NET COST . . . . . . . . FUTURE VALUE OF TAPE EQUIPMENT (See Notes A and B below) * ( ) NET FUTURE COST $ Note to Bidders: (A) If the tape drives directly attach to the robotics unit, the future value of tape equipment shall equal to [sic] the amount entered for item 1 above. (B) If the tape drives must be replaced in accordance with section 6 of this ITB, the amount entered will be the trade-in value of the equipment in October 1993. HRS received two bids for ITB 92-18BC. The bids that were submitted were bids by StorageTek and Unisys. The two bids were publicly opened at Winewood and transported to Management Systems for evaluation. When the bids arrived at Management Systems they were evaluated by an evaluation team consisting of Joe Duggar, Marilyn VanDusseldorp and Dick Bradley. The evaluation team concluded that both bids that were submitted were materially responsive to the ITB. However, review of the StorageTek bid showed that StorageTek failed to subtract line six from line five on the bid pricing sheet and had placed a zero for the cost on line seven of the bid pricing sheet. HRS reworked the numbers and entered a price on line seven in accordance with the mathematical requirements of the pricing sheet. HRS corrected StorageTek's entry on line seven and found that StorageTek's bid for line seven was over $300,000. Unisys' bid for line seven was for $243,454. HRS concluded that Unisys was the lowest responsive bidder for ITB 92- 18BC. As such, Management Systems reported these findings to Secretary Robert B. Williams, Secretary, Department of Health and Services, on January 2, 1992. After, reviewing the Unisys bid, StorageTek raised concerns about whether the Unisys bid satisfied the mandatory requirements of the ITB. StorageTek was concerned with whether Unisys had met the requirement of "At least one dual path controller with redundant paths for each string." Larry Smith, an employee of StorageTek, contacted Tom Johnson, Assistant Deputy Secretary for Management Systems, about the contents of the Unisys bid. Mr. Johnson, after listening to Larry Smith's concerns, asked Marilyn VanDusseldorp to check into StorageTek's allegations. Ms. VanDusseldorp and Mr. Duggar met with Mr. Greg Priest and Mr. John Thompson of the Unisys Corporation. Mr. Priest and Mr. Thompson went over the bid with the HRS evaluators. At this meeting, a conversation took place about the number of controllers that StorageTek and Unisys had bid and the cross coupling cables between those controllers. Unisys informed HRS that if HRS wanted that cable for strings B and C, Unisys could make that cable available at no additional charge. However, HRS would not avail itself of this crosscabling until after the acceptance period for the hardware as bid. The ability to cross cable strings B and C is not a requirement of or part of this ITB. Ms. VanDusseldorp and Mr. Duggar were convinced that they understood the Unisys bid and their original understanding of the Unisys bid's responsiveness did not change because of these conversations. Ms. VanDusseldorp reported back to Tom Johnson that the allegations by StorageTek were unfounded and that Unisys was responsive as bid in Unisys' response to the ITB. HRS awarded the bid to Unisys on January 16, 1992. StorageTek filed a timely notice of protest and formal written protest. As framed by StorageTek's amended formal written protest and the parties' Prehearing Stipulation, StorageTek contended that the award to Unisys was improper because: Unisys did not meet the requirement of providing "at least one dual path controller with redundant paths for each string"; Unisys allegedly failed to prove equipment capable of connecting the tape drives to an IBM computer without the loss of redundant paths; and Unisys allegedly failed to accurately represent net future costs. DISPUTED TECHNICAL REQUIREMENTS At Least One Dual Path Controller With Redundant Paths for Each String The ITB contained the following pertinent hardware requirements: Quantities and technical specifications: The following minimum specifications shall govern any equipment offered: (28) Cartridge tape drives configured as follows: One (1) string of sixteen (16) tape drives One (1) string of eight (8) tape drives One (1) string of four (4) tape drives At least one (1) dual path controller with redundant paths for each string . . . StorageTek bid equipment to provide two controllers for string A, two controllers for string B and two controllers for string C. Unisys bid two controllers for string A, one controller for string B and one controller for string C. StorageTek interpreted the requirement "at least one dual path controller with redundant paths for each string" as calling for dual or redundant controllers and complete redundancy from the mainframe or host computers to the tape drives. StorageTek's interpretation is contrary to the plain language of the specification and the common usage in the industry. In determining the common usage in the industry, the testimony of Dr. Fred J. Taylor is given great weight. He is an expert in configuration and design of I/O subsystems. He is an independent expert in that he is not an employee of any party and he had no involvement in the bid proceedings. A "path" is an unidirectional connection between two points. The word "path" has a different meaning depending on whether it is being used in reference to software or hardware. In the software context a "logical path" is the artificial path which exists only within the software configuration. The "physical path" is a hardware path along which information is actually communicated. It is the wires themselves. ITB 92-18BC is seeking a hardware system, not a software system. Therefore, the requirement of "[a]t least one dual path controller with redundant paths" relates only to the physical connection path. It refers only to the physical path (the wires) between the host computer (the A15 and A17) and the controller. Each controller can control only eight tape drives. Therefore, for string A, two controllers are needed. For Strings B and C, only one controller is required as long as it has two physical paths between the host and the controller and two other redundant physical paths between the same points. The term "redundant" given both its common English language usage and its usage in the industry means "duplicate," "copy," "alternate," or "more than one of that thing." The three string configurations bid by Unisys are responsive to the requirements of the ITB because each string contains dual paths between the host and the controller and each contains redundant paths for each of the requisite dual paths. StorageTek claimed to have asked HRS at the prebid conference and later in a telephone conference with Tom Johnson, Assistant Deputy Secretary for Management Systems, whether HRS intended to require two controllers per string. The evidence does not support this claim. StorageTek also claimed to have orally questioned whether the purpose of requiring at least one dual path controller with redundant paths for each string was to provide for simultaneous data transfers. Again, the competent, substantial, credible evidence does not support this claim. StorageTek did not put any such questions in writing. The ITB provided and StorageTek understood that changes or clarifications to the contract were not binding unless in writing. Nothing in the ITB required each string of tape drives to contain two controllers. Nothing in the ITB required that each string be capable of processing simultaneous data transfers. Nothing in the ITB required complete redundancy from the host computers to the tape drives. Capability to Connect Tape Drives to an IBM Computer in the Future The ITB contained the following special condition: The office of management systems also must be able to connect these tape drives to an IBM computer in the future. This capability is mandatory and must be stated with supporting documentation. The hardware/software to accomplish this goal is not part of this bid, but associated costs should be identified in the documentation provided. StorageTek claimed that Unisys' bid was nonresponsive because it did not demonstrate that the subsystem as bid in its entirety was capable of attaching to an IBM computer without losing one of the redundant paths on string B and string C. Nothing in the ITB required the bidders to demonstrate that the subsystem as bid could attach to an IBM computer without losing one of its redundant paths. To the contrary, the specification was specifically limited to demonstrating the capability of connecting the underlying tape drives to an IBM computer in the future. The purpose of the requirement for demonstrating the capability to attach to an IBM computer was to insure that the tape drives retained some value in the future if HRS no longer used the equipment to attach to the Unisys A series computer. Unisys' bid demonstrated it was capable of attaching the tape drives to an IBM computer and therefore the bid was responsive. NET FUTURE COST The ITB provided that the contract would be awarded to the bidder with the lowest dollar amount for "net future cost." Net future cost was the descriptive term for line item 7 on the ITB pricing information sheet (the pricing sheet). The ITB pricing sheet is set forth in Findings of Fact 14 above. The bidders were to insert the appropriate amount on each line, adding or subtracting as indicated by the presence or absence of parentheses. Unisys and StorageTek both filled out the pricing sheet appropriately with respect to line items 1-6. On line item 7, Unisys entered the difference between line item 5 and line item 6. This resulted in a figure of $243,454.00. StorageTek entered a zero on line item 7. The clear meaning of the pricing sheet was that line item 7 would be the difference between line item 6 and line item 5. StorageTek inserted on line item 7 its proposed cost to HRS in the future to attach the cartridge tape drives bid by StorageTek to robotic units. Line item 2 required bidders to enter one of two numbers. If the bidders' cartridge tapes would be capable of directly attaching to robotic units, the bidder was given a 100% credit for the present cost of the cartridge tapes on the pricing sheet. If the bidders' cartridge tapes would not be capable of directly attaching to robotic units, the bidder was required to insert on line item 2 the amount of the trade-in value the bidder would provide in the future in order to attach to robotic units. Under StorageTek's asserted interpretation of the pricing sheet, there would have been no difference between the information provided on line item 2 and the information provided on line item 7 because, as submitted by StorageTek, the substance of the information provided on both line 2 and line 7 was that there would be no additional change to HRS to attach the StorageTek cartridge tape drives to robotic units. Under StorageTek's asserted interpretation of the requirements of the pricing sheet, the amount of money being expended by HRS today would have had no bearing on the award of the contract. If StorageTek's bid on line item 5 -- the net cost to HRS today -- had been $10 million or $100 million, under StorageTek's theory it still would have been entitled to award of the contract because it would charge zero dollars in the future to attach the tape drives to robotic units. Such an interpretation is both illogical and unreasonable. The ITB did not define net future cost as the cost of attaching the cartridge tape drives to robotic units in the future. During the prebid conference, Larry Smith, the account representative for StorageTek, questioned Karin Morris, the HRS contract administrator for the ITB. Larry Smith suggested to HRS that the cost of attaching to the robotic units "was being totally ignored in this ITB." Karin Morris advised Larry Smith to put his concerns in writing. StorageTek did put its concern in writing requesting HRS to reconsider this acquisition by issuing an RFP (request for proposals) which would include consideration of the cost of converting to automation (robotics). HRS' response to StorageTek's written question was "No. The success of this ITB will be based on using current allocations to fund the charge to cartridge tape. No new appropriations have been requested for this acquisition." Larry Smith testified that he objected to the ITB because it ignored the cost of attaching to robotics, yet he inserted zero on line 7 because he understood net future costs to be the cost of attaching to robotics. The response of HRS to StorageTek's written question no. 11 unequivocally stated that the ITB would be awarded based on current allocations. HRS properly concluded that StorageTek deviated from the bid requirements by placing a zero on line 7. HRS properly waived the irregularity in StorageTek's bid regarding the line item 7 and recalculated StorageTek's pricing sheet to comport with the pricing sheet requirements by subtracting line six from line five to arrive at the net future cost in line 7. After recalculating StorageTek's pricing sheet, HRS correctly found that Unisys submitted lower dollar amounts on line item 5 and line item 7. ULTIMATE FACTS Unisys' bid was responsive to the ITB in all material respects. Unisys' bid was the lowest bid. Unisys' bid was the lowest responsive bid and should be awarded the contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order therein: Determine Unisys to be the lowest responsive bidder pursuant to Section 287.057(1). Award the bid for ITB 92-18BC to Unisys. DONE and ENTERED this 31st day of March, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992. APPENDIX TO THE RECOMMENDED ORDER 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, Storage Technology Corporation 1. 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(1); 2-7(9-14); and 34(43). 2. Proposed findings of fact 8-10, 52-54, 93, 103, 111, 112, 122, 134, 135, 141, 145, 146, 148, 156, and 158 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 11-21, 29-32, 39, 40, 47-51, 91, 92, 104-107, 110, 123-129, 131, 132, 136-140, 142, 143, 149, 150, 152, and 153 are irrelevant to the resolution of the issues raised in this case. 4. Proposed findings of fact 22-28, 35-38, 41-43, 55-76, and 113-121 are mere summaries of testimony and to the extent that factual matters recited in them are reflected in the Findings of Fact herein, they are subordinate to those Facts. 5. Proposed findings of fact 33, 44-46, 77-79, 94, 98, 102, 108, 109, 130, 133, 144, 147, 151, 154, 155, 157, 159, and 160 are unsupported by the credible, competent and substantial evidence. 6. Proposed findings of fact 80-90, 95-97, and 99-101 are unnecessary in light of the Findings of Fact and issues herein. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services 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: 1-8(1-8); 9-26(15-32); 27(34); 28(41); 29(43); 30(50); 35(52); 37(57); 38(58); 39(63); 40(62); 41(77); 42(78); and 43(82). Proposed findings of fact 31-34 and 36 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Unisys Corporation 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(57); 2(58); 3(14&59); 4-23(60-79); 29-33(34-38); 34-40(45-51); 41(41); 43(44); and 45-49(52-56). Proposed findings of fact 24-28, 42, and 44 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: F. Perry Odom Melissa Fletcher Allaman Attorneys at Law Ervin, Varn, Jacobs, Odom & Ervin 305 South Gadsden Street Post Office Drawer 1170 Tallahassee, Florida 32302 Peter A. Lewis Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building one, Room 407 Tallahassee, Florida 32399-0700 W. Robert Vezina, III Mary M. Piccard Attorneys at Law Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive Post Office Box 589 Tallahassee, Florida 32302-0589 Robert B. Williams, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Department's Office of Overpayment, Fraud and Recoupment collects welfare overpayments which consist of Aid to Families with Dependent Children (AFDC), food stamps and Medicaid monies. Under pertinent Federal Regulations, the Department has the responsibility to collect these overpayments through a series of demand letters. It has been the practice of the Department in the past, and continues to be as evidenced by the Invitation To Bid at issue, for the Department to obtain a commodity/service vendor who will use individual's names supplied by the Department to mail out on a regular basis demand letters or billing statements as well as delinquent notices. These letters, statements, and notices are accompanied with a return envelope for the client to remit his or her payment. The pertinent provision of the subject Invitation To Bid is section 30-700. The Invitation To Bid for 1989 and 1990, which is under protest in this proceeding, is essentially identical to the same bid specifications in the 1988-1989 Invitation To Bid procurement process, which was the first year that the Department procured these services. That section of the Invitation To Bid at issue states: 30.700 Proposed Self-Mailer Packages or Envelopes for Notices This section shall contain the bidder's proposed self- mailer packages or envelopes for the specified notices. * * * Section 50 of the Invitation To Bid contains the various phases of the evaluation process by which the agency will evaluate the vendor's proposals and select a contractor. Section 50.300, Phase I contains a requirement that any proposal that is incomplete or non-responsive or in which there is significant inconsistencies or inaccuracies may be rejected by the Department. Three bids were received for the 88-89 procurement and for the 89-90 procurement at issue herein. Moore bid the Petitioner bid in each of those years. Moore was the only bidder in each of the two years who did not submit an example or sample of its proposed self mailer. There was a bidder's conference provided by the Department prior to the submission to bids in the 1988 procurement. The bidders then were specifically instructed during that conference "the bid will be award to the bidder with the lowest bid price that provides a product sample and bid scores well in the evaluation process." Mr. Holland of Moore Business Forms, the petitioner was present at that 1988 bidders conference and later received the questions and answers resulting from that conference in written form from the agency. The 1988 bidding effort and circumstances surrounding are not directly relevant to the questions of specification in the 1989 invitation to bid, the vendors responses thereto and the evaluation and interpretation of the specification and responses conducted by the agency as to the 1989 invitation to bid and result in responses since the specification at issue was the same as it was in the 1988 invitation to bid, and since Mr. Holland was present at the 1988 Bidders Conference at which that specification was interpreted as requiring the provisions of an actual product sample with in response to that specification it must be found that Mr. Holland and therefore the Petitioner was on notice that the agency policy was to interpret that specification as requiring submission of a product sample. The other vendors uniformly submitted product samples in response to the 1989 invitation to bid at issue, and submitted them in response to the 1988 invitation to bid as well. Thus it has not been established by the Petitioner that the specification at issue cause any confusion or ambiguity which resulted in the Petitioner legitimately being misled in making its response to this specification in which occasion any undo competitive disadvantage to the Petitioner in formulating its response to this specification. Although the Petitioner objects to the fact that no bidders conference was convene prior to submittal of bids in the 1989 procurement effort, that bidders conference was not mandatory but was scheduled in 1988 at the request of the proposed vendor. No vendor requested the bidders conference as to the 1989 procurement, and so none was held. No vendor including the Petitioner inquired of the agency before submission of the bids in 1989, as to whether a sample was required. The evidence reveal that all the other bidders understood that a sample was required and submitted one. The agency personnel Mr. Bartlett and Ms. Meyers, in charge of evaluating the responses to the invitation to bid established that it was consistent agency policy and there own interpretation of that specification that a product sample be submitted as part of the bid response. That interpretation of the specification and the resulting evaluation of the bid responses to the invitation to bid at issue was not shown to be unreasonable. A fair reading of that specification dictates the finding that product sample submission was a requirement of the specification and failure to comply would vendor the bid submittal unresponsive in this regard. Further, it was demonstrated by the Respondents evidence that it is normal custom and usage in the business form production industry to produce samples for prospective customers to evaluate, and thus this also demonstrates the lack of ambiguity and the adequate clarity of the specification at issue. In view of the opportunity it had to ascertain the clear meaning of this specification in both annual procurement efforts in which it was employed, the Petitioner did not demonstrate any basic for being confused as to what the specification meant or any legitimate basic for its failure to comply with it by submitting a product sample, that is the proposed "self mailer package" it propose to provide the Department. Moreover, and most pointedly, to the extent that the Petitioner is seeking to attack this specification as being ambiguous or unclear or otherwise not revealing the type of response the agency wanted, the attack is untimely. The Petitioner should have challenged this specification, if it chose to do so, within 72 hours of receipt of the invitation to bid. If fact no challenge was raised until after the award when the instant Petitioner was filed. In any event the agency personnel charged with evaluating the responces to the Invitation to BID assigned the various vendor response the three evaluators assigned the following points for the proposed self mailer package response to the specification at issue: the response by the Petitioner was given a scoring 0, -40, and 0 by the three members of the evaluation team. The UARCO proposal, which was initially announced winner, was sccorded a score of 100, 90, 100, and the response by Direct Mail Inc., was recorded a score of 100, 90, 70. The was because Moore merely submitted a sample list of specifications for it proposed self mailer, rather than complying with the specification and providing an actual sample of how the product would look. The scoring method used was that notice to all vendors by invitation to bid. The evaluation team followed the evaluation criteria in waiting, which the agency published in the invitation to bid. There was no showing that the scoring was arbitrarily, unreasonably, or illogically performed. If the specification indeed requires submission of a product sample, then the evaluation team members correctly scored the Petitioner's response, and correctly found it the least responsive to the three bids in this particular. In fact the evidence of record establish that the specification clearly require the submission of the actual product sample of the "self mailer package" as a proper response to that specification to the invitation to bid. Since the Petitioner fail to submit one and the other vendors did so, then Moore should be rated the least responsive of the three. There was no showing that this scoring and ranking was unreasonable, inappropriate, or constitute a departure from a clear reading interpretation of the bids specification. The Respondent agency has moved to tax costs against the Petitioner in accordance with Section 287.042.(2)(c), Florida Statutes (1989), with regard to the costs attributable to the time spent by agency staff members in preparing for and conducting their efforts in this proceeding, as well as document copy costs. Ms. Meyer spend two hours preparing for hearing as well as time spent in the hearing, which lasted approximately two and one-half hours. Jim Payne and Harry Greenwood, for the Department, also attended the Hearing; and the costs should be assessed corresponding to the two and one-half hours of hearing time. Since the agency has prevailed herein, the costs contained in Respondent's Exhibit 10, which totaled $516.05, should be assessed against the bond posted by the Petitioner.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED that the petition filed by the Petitioner be denied, and that the subject contract be awarded to UARCO Business Forms, Inc. It is further recommended that costs be taxed and awaraded to the Respondent in the amount of $516.05 and that the bond posted by the Petitioner be estreated in that amount. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of February 1990. P. MICHAEL RUFF 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 9th day of February 1990. Copies furnished: Robert W. Hollan Account Executive Moore Business Form 1535 Killearn Center Boulevard Suite B-1 Tallahassee, Florida 32317-4287 Robert L. Powell Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 UARCO Inc. Attn: Robert Pruitt 401 North Office Plaza Post Office Box 989 Tallahassee, Florida 32302 Direct Mail Specialists Inc. Attn. Shirley H. Fleetwood 1801-B South Monroe Street Tallahassee, Florida 32301
Findings Of Fact On or about February 14, 1996, Respondent, the Department of Labor and Employment Security (DLES), issued an Invitation to Bid, bid number 96-036-VA soliciting competitive bids for Braille embossers and Braille software. More specifically, the bid specifications describe the purpose of the invitation ...to obtain competitive bid prices for heavy duty desktop interpoint braillers; braille translation software licenses, diskettes, and documentation; sound enclosures (if necessary to meet bid specifications); and warranty/maintenance on same for the Department of Labor and Employment Security, Division of Blind Services. (Respondent exhibit no. 3) The specifications required, in pertinent part, that the bidder include three references of current owners of the printer model bid, including one owner who had operated the equipment for more than six months. The specifications also provided that after initial bid packages were reviewed and recommended, but prior to award of the bid, an on-site demonstration of the printer must be enacted by the selected vendor. Specifications for the printer included these relevant requirements: * * * Printer must be an interpoint printer - simultaneous embossing of both sides of a sheet. * * * Printer must print at a minimum speed of 40 characters per second (cps), per side, or 120 pages an hour, and a minimum of 40 braille characters per line, per side of paper. * * * If the noise level of the printer bid exceeds 60 dba, a sound enclosure must be included as an essential component of the bid package, one enclosure included per printer bid (per subsection "B" below). Total unit bid - with sound enclosure if necessary - must operate (printing and/or standing) at no more than 60 decibels. * * * (Respondent's exhibit no. 3) An addendum to the Invitation to Bid was issued on March 19, 1996. The addendum changed the bid opening to April 2, 1996 and amended the printer specification related to minimum speed, as follows: Printer Specifications (B) (Page 10 of 18) Last paragraph on the page is to read as follows: "Printer must print at a minimum speed of 40 characters per second (CPS), per side, or 120 total pages per hour; with a minimum of 40 braille characters per line per side of paper." (Respondent's exhibit no. 3) Several firms responded to the invitation. Intervenor, Easy Talk, submitted four separate bids for different equipment at different prices. One of Easy Talk's bids was initially selected as the apparent low bid, but was then disqualified for lack of references. Petitioner Enabling Technologies' was the next lowest bid but it, too, was disqualified when its references revealed that none owned the machine being bid by Petitioner, the Juliet ET. Instead, they owned the Juliet model. Petitioner does not dispute these facts nor does it dispute that its bid was appropriately disqualified. Rather, Petitioner contends that its competitor, Easy Talk, should also be disqualified because its equipment does not meet the bid specifications regarding printer speed and noise level. As provided in the Invitation to Bid, compliance with the bid specifications was determined by an on-site demonstration monitored by Respondent's designated staff. Respondent interpreted its printer speed specifications to mean that the printer must achieve 40 characters per second, per side, or 120 total pages per hour (one or the other). The addendum issued on March 19, 1996 was intended, in part, to clarify that requirement. Respondent also interpreted the term "page" to mean one side of a sheet of paper. Braille pages are commonly numbered on each side of a sheet. Respondent determined that Easy Talk's printer met the speed requirement when it produced 198, single side, pages per hour. Petitioner contends that "page" means a double-sided sheet, and that Easy Talk therefore only produced 99 pages, not the required minimum 120 total pages in an hour. Petitioner's argument is based on the fact (uncontroverted) that an interpoint Brailler is a Braille printer which produces simultaneous embossing on both sides of a sheet. (See paragraph 3, above, citing this requirement in the specifications.) Petitioner's argument is also bolstered by the fact that 40 characters per second, per side, translates to more than 120 single sides per hour. In spite of the reasonableness of Petitioner's interpretation, and the notion that Respondent could have used the term "side" if it meant side, rather than "page," there is no evidence that Respondent's interpretation is patently wrong or that Respondent contrived the interpretation in order to insure that Easy Talk would meet the specifications. The noise level of Easy Talk's printer was measured by Respondent's Division of Blind Services employee, Sylvia Voyles, who developed the specifications for the bid at issue. Ms. Voyles conducted the test with a small sound meter, hand-held or capable of being mounted on a tripod, purchased from Radio Shack. She relied on the sound meter's manufacturer's instructions in interpreting the results. According to the instructions, the meter is accurate to plus or minus two decibels when measuring a sound level of 114 decibels. Ms. Voyles observed that the wand on the meter did tend to waver back and forth within a range of two to four decibels. In conducting the test on Easy Talk's equipment, Ms. Voyles observed the wand to waver between 59.5 and 62 decibels. She rated the equipment at the high range, 62, applied the plus or minus two accuracy standard, and concluded that the equipment met the 60 decibel maximum specification. When she conducted her test on Petitioner's equipment, Ms. Voyles used the same testing methodology as described above and concluded that it achieved a 58 decibel rating. Again, there is no evidence that the testing process was fatally flawed, unevenly applied, or otherwise devised to assure that Easy Talk could pass.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that a final order be entered dismissing Petitioner's protest. DONE and ENTERED this 11th day of September, 1996, in Tallahassee, Florida. MARY CLARK, 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 11th day of September, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-3265BID To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-13. Adopted in substance. 14.-15. Rejected as immaterial. 16.-25. Adopted in substance. Rejected as immaterial. Respondent's Proposed Findings of Fact. 1.-2. Adopted in substance. 3.-6. Rejected as unnecessary, except for Petitioner's concurrence that its bid was properly disqualified. 7.-21. Adopted in substance. COPIES FURNISHED: Sonja P. Mathews, Senior Attorney Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Robert A. Schenk, President Enabling Technologies Company 3102 Southeast Jay Street Stuart, Florida 34997 Kerey Carpenter, Esquire 1228 North Adams Street Tallahassee, Florida 32303
Findings Of Fact Petitioner filed a timely notice of protest and formal protest. Petitioner is Procacci Real Estate Management Co., Limited. Respondent is the Department of Corrections of the State of Florida. Intervenor is In-Rel Acquisitions, Incorporated. As required by section 13M-1.015(2)(a), Florida Administrative Code, Respondent sought to encourage participation in the bidding process for additional office space. In that regard, Respondent published a newspaper advertisement in Broward County announcing the acceptance of sealed bids until 10 a.m., December 14, 1987. The advertisement stated Respondent's desire to lease approximately 7,052 square feet of office space located in an area West of 27th Avenue, East of highway 441, North of Broward Boulevard and South of Oakland Park Boulevard. Three bids were received by Respondent and, after the announced deadline for submission, opened and evaluated. Petitioner responded to the advertisement and requested a copy of the bid specifications and package to be completed by bidders. This package, entitled "REQUEST FOR PROPOSAL AND BID PROPOSAL SUBMITTAL FORM", contains a statement on the first page in the third numbered paragraph of general specifications and requirements that the space sought must located in Broward County "within boundaries depicted in the attached map". The attached map, in conformance with the newspaper advertisement noted above, has lines drawn around a geographical area roughly resembling a rectangle. As adduced at hearing, the eastern boundary of the area is 27th Avenue, the western boundary is highway 441, the northern boundary is Oakland Boulevard, and the southern boundary is Broward Boulevard. Petitioner timely filed a sealed bid with the Respondent. That bid, in accordance with the bid specifications and administrative rules, had attached a copy of an option to purchase certain property which Petitioner was offering. The option was a contract to purchase the property and carried an expiration date of January 30, 1988. The document was signed by Roseann Cioce as buyer. Testimony elicited at hearing disclosed that Cioce is a limited partner in the Petitioner partnership. The name of the buyer of the property was listed on the document as "Roseann Cioce and /or Assigns of Procacci Real Estate." No evidence of assignment of Cioce's interest in the contract to the Petitioner's business is attached and none was offered in evidence at the hearing. It is therefore found that Petitioner's authority to offer the facility was not provided in accordance with provisions of the bid specifications or applicable administrative rules. Page 2, paragraph 7 of Respondent's bid specifications require that a bidder provide approximately 50 off street spaces for exclusive parking use of the Respondent's employees and clients. While Petitioner's submitted bid alleged a total of 60 parking spaces at two different locations (28 spaces off site and 32 spaces included with the proposed site), the previously noted buyer's option submitted by Petitioner did not include all the real estate upon which parking would be situated. At hearing, the Petitioner presented an additional contract for purchase of the property to be used for this purpose. While this contract is signed by Pat Procacci (with the designation "partner" following the signature) on behalf of Procacci Real Estate Management Co., Ltd., the document is untimely. It bears a date of January 21, 1988. Respondent's specifications (page 8, paragraph 4 of "General Provisions") require submission of the bidder's option to purchase with the bid. The date for submission was, as previously noted, December 14, 1987. Both pieces of property which the Petitioner proposes to lease to Respondent are, without issue, located "within" the geographical boundaries required by the map in Respondent's bid specifications. Intervenor's employee, Dennis Udwin, testified at hearing that he received notice of the bid process in this case through a general mailing from the Department of General Services in Tallahassee, Florida. He then called the Respondent's probation and parole services circuit administrator in Broward County, Ronald Williams, to see if his property would meet Respondent's geographical bid specifications. Based on that conversation's confirmation of his own belief that his property qualified, Udwin proceeded to provide Intervenor's bid. He did not see the bid newspaper advertisement. The property described in the Intervenor's bid response is located at 4121 Northwest 5th Street in Plantation, Florida. This property is not located within the geographical boundaries required by the map in Respondent's bid specifications. From evidence adduced at hearing, it is found that the intervenor's property does not even abut or border on highway 441, the Western boundary of the desired area. A major brand gasoline service station is situated on property to the East of Intervenor's proposed location and West of Highway 441. That property is not owned by Intervenor. Respondent considered Intervenor's property location, outside of the required geographical boundaries set forth in the bid specifications, to be a minor variation or technicality which could be waived by Respondent. As a result, Intervenor's bid was subsequently considered in Respondent's evaluation of the submitted bids. Mark Shupp, Respondent's employee, testified that the location of Petitioner's property in a predominantly black neighborhood was not a factor in evaluation of the competing bid proposals. Based on the candor and demeanor of the witness, his testimony on this particular point is not credited. Mary V. Goodman is Chief of the Bureau of Property Management for the Division of Facilities Management of the State of Florida's Department of General Services. She testified at hearing on behalf of Petitioner as an expert concerning the prevailing practice of exercise of administrative discretion as to whether a boundary requirement may be waived as a minor technicality or irregularity. From her testimony, it is established that the Bureau of Property management advises state agencies that such waiver is only proper when property located outside a designated geographical boundary, set forth in bid specifications, abuts that boundary. The action of Respondent, regardless of intent, in advertising for space within a designated geographical area, had the effect of discouraging potential offerors from submitting properties located outside that area. It is found that the action of the Respondent in determining the bid of Intervenor to be in compliance with bid specifications relating to geographical location was not the waiver of a minor variation. This action did give Intervenor a special advantage or benefit, namely the benefit of offering property located in a more aesthetically pleasing area without competing with other similarly situated offerors who, if knowledgeable of the possibility of such waiver, may have submitted competing bids. Further, Respondent's decision gave intervenor a distinct advantage over other bidders who believed they were confined to the specified geographical area. Respondent's bid specifications contain an admonishment in paragraph number 6, on page 8, that the Respondent reserves the right to reject any and all bid proposals. It is found that bids provided by both Petitioner and Intervenor were unresponsive to Respondent's specifications.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order finding bids of Petitioner and Intervenor to be unresponsive and rejecting all bids. DONE AND RECOMMENDED this 12th day of February, 1988, in Tallahassee, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-0165BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on Proposed Findings of Fact submitted by the parties: Petitioner's Proposed Findings of Fact Included in part in finding number 5. Rejected in part as unnecessary. Included within finding number 6. Rejected as not consistent with the evidence. Rejected as not consistent with the evidence. Rejected as not consistent with the evidence. Included in findings number 11 and 12. Included in findings number 11 and 12. Included in finding number 10. Included in finding number 14. Included in finding number 17. Rejected as unnecessary. Rejected as unnecessary. Included in finding number 15. Respondent's Proposed Findings of Fact Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Accepted in part in finding number 5, but Notice specified particular boundaries. Included in finding number 10. Included in finding number 5. Rejected as unnecessary. Rejected as not consistent with the evidence. Rejected as unnecessary. Rejected as unnecessary, with exception of neighborhood location which is addressed in finding number 17. Addressed in finding number 13. Rejected as unnecessary and accumulative to finding number 15. Included in part in findings numbered 5, 13, 16, and 17. Proposed language as to methodology of attempted award rejected as unnecessary. Intervenor Intervenor filed a memorandum in support of Respondent. That memorandum did not set forth proposed findings of fact. The memorandum has been reviewed by the Hearing Officer. Background information in the memorandum relate to Respondent's intentions as opposed to facts adduced at hearing. To the extent consistent with the Hearing Officer's findings, such information has been adopted in the findings of fact set forth in this Recommended Order. COPIES FURNISHED: Robert A. Sweetapple, Esquire Suite 800, Concord Building 66 West Flagler Street Miami, Florida 33139 Drucilla Bell, Esquire Assistant General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Theodore D. Fisher, Esquire Suite 1410, I Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156 Richard Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
Findings Of Fact Petitioner, on May 20, 1985, submitted an application for an outdoor advertising sign on his property alongside SR 37, 2000 feet north of the intersection of Brannen Road (CR 540A) (Exhibit 5). This application was disapproved by Memorandum of Returned Application dated July 22, 1985, for the specified reason that it did not meet the spacing requirement because it was in conflict with permit No. 2595-12 held by Lamar Citrus. (Exhibit 5) Tag No. 2595-12 was issued to Peterson Outdoor Advertising (Peterson) on application approved December 14, 1976 for a sign, along SR 37,500 feet south of Brannen Road on the right side of SR 37 facing north. In the space on this application for DOT use only was written: "Sec 548 N/B 22.68 Mi 50'R F/N 34'H" (Exhibit 1). This shows the approved location to be at mile 22.68 north bound with the sign facing north. Exhibit 1 further indicates the site was transferred to Lamar Citrus who is the current owner of that permit. The tag numbers originally issued to Peterson were lost and new tag numbers for the sign erected by Lamar in December 1985 have been issued. The sign inventory maintained by the DOT sign inspector in this district showed the permit for the Lamar structure to be at mile 22.07. Petitioner's application is for a sign at mile 22.05 which is within 1000 feet of the sign erected by Lamar in December 1985. At the time Petitioner applied for the sign that is the subject of these proceedings Lamar had no sign erected. Lamar acquired a lease on property consisting of part of the abandoned Seaboard Coastline Railroad right-of-way, which abuts Petitioner's property on the north, subsequent to Petitioner filing the application which was here denied by Respondent. The sign erected on this property in December 1985 is at mile 22.07. When Petitioner applied for the permit here considered, the initial site visit by the DOT sign inspector resulted in a recommendation that Petitioner move his proposed sign location about 100 feet to the south to be at least 1000 feet from the Lamar permit. This Petitioner did. However, his application was thereafter disapproved because of the above noted spacing requirement. Lamar was not a party to these proceedings and submitted no explanation of how the originally approved site 500 feet south of Brannen Road at mile 22.68 was shown on the DOT inventory at mile 22.07. No evidence was presented by DOT that Lamar or its predecessor, Peterson, had ever obtained a permit for the relocation of the site to mile 22.07 as shown in the Department sign inventory. Inspectors for DOT rely upon their sign inventory in determining the permitted site locations rather than the description shown on the original application.
The Issue Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Read 814, 800 feet east of Powerline Road in Pompano Reach, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code. Whether or not the Petitioner, State of Florida, Department of Transportation, is entitled to remove a certain sign allegedly owned by the Respondent and allegedly located on State Road 84, 600 feet east of U.S. 441 in Fort Lauderdale, Florida. The stated grounds for this removal are for the failure to have a permit under the terms and conditions of Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, and the alleged improper spacing of this sign, vis-a-vis, other signs in the vicinity, in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code.
Findings Of Fact This cause comes on for consideration based upon the Petitioner, State of Florida, Department of Transportation's allegations against the Respondent, William E. Beal, d/b/a Beal Sign Service, which allegations charged the Respondent Beal with violations of Chapter 479, Florida Statutes, and Rule 14, Florida Administrative Code. The Petitioner, State of Florida, Department of Transportation, is an agency of State Government charged with the function of carrying out the conditions of Chapter 479, Florida Statutes, and such rules as have been promulgated to effect that charge. The Respondent, William E. Beal, d/b/a Beal Sign Service, is a business enterprise licensed under Section 479.04, Florida Statutes, to do business as an outdoor advertiser in the State of Florida. The Petitioner, through its form statement letter of violation and attached bill of particulars has accused the Respondent of violations pertaining to two signs. The stated violations alleged against each sign are common, in that the Respondent is accused in both instances of not having a permit as required by Subsection 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Cede, and is additionally charged in the case of both signs with maintaining improper spacing in violation of Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code. The facts of the case reveal that the first sign in contention is located on State Road 814, which is also known as Atlantic Boulevard, in Broward County, Florida. The copy of that sign contains the language, World Famous Restaurant, Kapok Tree Inn." This sign is depicted in the Petitioner's Exhibit No. 1 admitted into evidence, which is a photograph of the sign. The second sign in contention is located on State Road 84 and is depicted in the photograph which is Petitioner's Exhibit No. 2 admitted into evidence, and it carries the copy, "Villas of Arista Park." This particular sign is located in Broward County, Florida. Both of the signs in question are owned by the Respondent, Beal, and have been constructed by his business concern. The sign located on State Road 814 faces east and is 330 feet away from the nearest sign, which faces east; the latter sign has a permit and is owned by the Respondent. The disputed sign is part of a double-faced construction with the second side facing west. The sign on State Road 84 also faces east and is 292 feet away from the next sign, which faces east. The next nearest east-facing sign is permitted and is owned by the Respondent. Again, the disputed sign on State Road 84 is part of a double-faced apparatus whose second face is located in a westerly direction. The west faces of the signs have the proper State permits; however, the east faces, which are in dispute in this proceeding, do not have the proper State permits required by Subsection 479.07(1), Florida Statutes. That provision reads: "479.07 Individual device permits; fees; tags.-- Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising structure, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided. Any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by the department. A permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be affixed to the sign in the manner provided in subsection (4). The department shall not issue such a permit to any person in the business of outdoor advertising who has not obtained the license provided for in s.479.04." The sign at State Road 814 which is in dispute is neither a federal- aid primary highway nor interstate highway. It is a part of the state road system in the State of Florida. Nonetheless, it is outside any incorporated city or town and would require a permit. The sign at State Road 84, which has been referred to through the statement of violation, is in an unincorporated area of Broward County and would require a permit. In addition, it is a sign located on a federal-aid primary highway. The conclusion reached on the necessity of the Respondent to have the subject signs permitted is reached through an examination of the history of the two signs in question and the west-faced construction at the location of the two signs which are in controversy. In 1971 the Respondent applied to the Broward County Building and Zoning Department to he granted a permit to construct a single-faced, non- illuminated sign at the location, State Road 814. That request was granted and a single sign was constructed, which is the west-faced sign at the location. That sign remains today. A copy of the application for that sign permit may he found as Respondent's Exhibit No. 1 admitted into evidence. Some time in January, 1978, and as indicated by the document for application, January 6, 1978, the Respondent filed a request with the Petitioner for a permit for the east face that is disputed in the course of this hearing pertaining to the location on State Road 814, with the copy, Kapok Tree Inn. No prior permit had been issued for the construction of that east face through the offices of the Petitioner, nor to the knowledge of the Petitioner's employees had any permit been granted by Broward County for such a sign. A couple of days after the application was made for the permit for the east face of the sign on State Road 814, the sign structure itself was built. That structure was constructed at a time when the permit request had not been approved. Subsequent to the construction, an employee of the petitioner informed the Respondent that the permit request had not been approved and in August, 1978, the fees for such a permit were returned to the Respondent. The explanation for not approving the request for permit was due to the failure to comply with the Rule 14- 10.06(1)(b)3., Florida Administrative Code, pertaining to spacing between signs. (In addition, it was established in the hearing that the Petitioner was reluctant to approve the applications for either the State Road 814 or the State Road 84 signs in view of a certain action on the part of Broward County against the Respondent's east-facing signs on State Road 814 and State Road 84 for alleged non-compliance with the Broward County Ordinance, Section 39-946 and Chapter 42-4203.I, South Florida Building Code. The action with Broward County is still pending.) The permit application for the east-faced sign on State Road 84, which is the subject of this controversy, was made as notarized January 5, 1978. The history of the Respondent's signs located at this particular position is traced through an examination of the Respondent's Exhibit No. 2, which is a copy of the permit application filed with the Broward County Building and Zoning Department in 1974, requesting the right to construct and be permitted for a double-faced sign. That permit was granted and the west face was constructed and utilized by the Respondent and a proper permit still remains in effect. It is unclear from the record at what point the easternmost face of the double-faced sign was constructed, but it is clear that the east face was existent with the aforementioned copy in place when an employee of the Petitioner inspected the sign as a prerequisite to issuing the permit and on an inspection discovered that the sign was only 292 feet away from the next sign which faced east located on the road. The import of the Respondent's testimony did, however, seem to suggest that the west face of the double-faced sign was constructed at a time before the east face. Moreover, the Respondent by asking for the permit appeared to be of the opinion that the permit for the west face was insufficient in itself to meet permitting requirements for the east face. The east face of the sign at State Road 84 aid not have a state permit when it was inspected by the Petitioner's employee and to the knowledge of the Petitioner never had been permitted. Petitioner notified the Respondent that the sign at State Road 84, which is under consideration in this case, purportedly violated the provision in Section 479.025, Florida Statutes, and Rule 14-10.06(1)(b)3., Florida Administrative Code, pertaining to spacing. This notification was through the Notice of Violation of February 15, 1978, and was tantamount to informing the Respondent that the permit application had been rejected. Even though a double-faced sign application was made with Broward County in 1974 for the sign apparatus to be located in the position on State Road 84, the requested utilization of the east face did not come about until January, 1978, and the Broward County permission to construct a double-faced sign did not grant the Respondent license which would allay the necessity of gaining a permit from the Petitioner to utilize the east face of that sign. Having established that no permit existed for the two signs in question at the time the Notice of Violation was filed on February 15, 1978, and having established the need for such a permit, there remains to be determined the question of whether or not the signs violated requirements for spacing purportedly found in Section 479.025, Florida Statutes, and Rule 14- 10.06(1)(b)3., Florida Administrative Cede. (Section 479.025, Florida Statutes, does not apply because it was repealed by Chapter 77-104, Laws of Florida, effective August 2, 1977.) Rule 14-10.06(1)(b)3., Florida Administrative Code, establishes the requirement that "no two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction." This requirement only applies to federal-aid primary highway; therefore, it would not have application to State Road 814, which is not a federal-aid primary highway. Consequently, the spacing requirements could not stand as a basis for denying the permit application as it pertains to the sign on State Road 814. Rule 14-.0.06(1)(b)3., Florida Administrative Code, would have application to State Road 84, which is a federal-aid primary highway. In view of the fact that the next east-facing sign on State Road 84, which is most adjacent to the sign on State Road 84 in dispute, is 292 feet from the structure on State Road 84, the disputed sign violates Rule 14-10.06(1)(b)3., Florida Administrative Code, as being less than five hundred (500) feet from the next adjacent sign on the same side of the highway and facing the same direction, and a permit should not be issued because of this violation of the spacing requirement. It should be mentioned that the Respondent has claimed the theory of estoppel in the course of the hearing on the question of the right to obtain permits for the signs and to avoid their removal. The theory of that claim of estoppel is that the Petitioner has failed to comply with Rule 14-10.04(1), Florida Administrative Code, on the requirements for permit approval and is estopped from denying the permit application. That provision states: "14-10.04 Permits. Permit Approval Upon receipt of Form 178-501 from an outdoor advertiser, the District will record the date received in the lower right hand corner of the form. Within fifteen days of the receipt the application must be approved and forwarded to the Central Office or returned to the applicant. The sign site must be inspected by an outdoor advertising inspector, to assure that the sign(s) will not be in violation of the provisions of Chapter 479, Florida Statutes, Title 23, Section 131, U.S. Code and local governmental regulations. If all these requirements are met and the measurements are correct, the inspector stamps the application 'Approved', signs it and dates his signature. Where two applications from different advertisers conflict with each other or are competing for the same site the first application received by the district office will be the first considered for approval. If the first one received is approved the second application will be disapproved and returned to the advertiser. Although the facts show that the Petitioner did not approve and forward the permit application to the Central Office or return it to the applicant within fifteen days as required, the Respondent went forward with his construction and/or utilization of the signs in question without receiving a permit which allowed for such construction and/or utilization. In the case of the sign at State Road 814, the sign was constructed before the expiration of the fifteen day period within which time the Petitioner could respond to the application. Furthermore, Rule 14-10.04(2), Florida Administrative Code, clearly indicates that no permit exists until the permit tag is issued, and the permit tag is not issued unless the District Office approves the permit application request. In both instances, the permit application request was not approved and a permit tag was not issued; and there being no entitlement to a default permit upon the expiration of a fixed period of time, and the Respondent having acted without permission to construct and/or utilize the signs and there being no facts proven which established the necessary reliance condition as a prerequisite to a claim of estoppel, estoppel does not pertain. That provision of Rule 14-10.04(2), Florida Administrative Code, states: "14-10.04 Permits. Permits Issued Upon Approval: Upon receipt of the approved application with payment of the permit fee, the Outdoor Advertising Section, Central Office, issues the permit tag. The tag will be issued within 30 days of receipt in the District Office. The advertiser shall attach the permit tag to the face of the advertising structure, advertising sign or advertisement on the end nearest the highway in a manner that shall cause it to be plainly visible but not readily accessible by the general public." At best, the Respondent could have inquired of the Petitioner at a time thirty (30) days from the receipt of the two applications to determine why the applications had not been approved or returned to the Respondent. And in the absence of a satisfactory explanation, moved in the appropriate forum to mandate compliance with Rule 14-10.04, Florida Administrative Code. Instead, the Respondent moved at his own jeopardy to construct and/or utilize the two subject signs, which are indicated in the Notice of Violation, and by doing so ran the risk that he would not gain the necessary permits and would stand to have the signs removed under the provision of Section 479.17, Florida Statutes. Under these circumstances, the Petitioner is not estopped from requesting the removal of those signs.
Recommendation It is recommended that the signs located at State Road 814 and State Road 84 that are the subject matter of this dispute be removed. DONE AND ENTERED this 30th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1979. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Nancy Severs, Esquire Miller, Squire & Braverman 500 Northeast Third Avenue Fort Lauderdale, Florida 33301 =================================================================
