Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
The Issue The issue posed herein is whether or not the Petitioner remitted to Respondent, pursuant to Chapter 212.05(1), Florida Statutes, the, proper amount of sales tax on the boat "Captain Deebold" which was purchased on November 29, 1976. A related issue, assuming that the proper sales taxes were not remitted by Petitioner, is whether or not a levy of penalty and interest is warranted under the circumstances.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, legal memoranda submitted by the parties and the entire record compiled herein, the following relevant facts are found. Petitioner purchased the vessel "Captain Deebold" on November 29, 1976, and alleged that the purchase price of the boat was $20,000.00. Accordingly, Petitioner remitted to the Department sales taxes based on the declared value of $20,000.00. Respondent maintained that the subject boat was purchased for the sum of $75,000.00 and has, therefore, issued an assessment against Petitioner for the additional taxes, penalty and interest. By letter dated November 29, 1978, Respondent's Revenue Investigator, Leslie J. Smithling, advised Petitioner that a routine verification concerning his purchase of the subject boat revealed a transaction amount of $75,000.00 upon which the four percent Florida Sales Tax is $3,000.00. Petitioner was further advised therein that his remittance in the amount of $4,202.00 was due no later than December 15, 1979. Taxes, penalties and interest were calculated as follows: Purchase Price $75,000.00 Tax Rate 4% Tax $ 3,000.00 Minus Tax Paid (Based on $20,000.00) $ 800.00 Tax Due $ 2,200.00 Administrative Penalty (Ch. 212.12[2], F.S.) $ 550.00 Fraud Penalty (Ch. 212.12[2], F.S.) $ 1,100.00 Interest: 1% per month from 8/1/77 to 12/1/77 16% Plus $.72 daily thereafter Total Interest Accrued $ 352.00 Total Tax, Penalties & Interest Due $ 4,202.00 In support of its position that the true purchase price of the boat was only $20,000.00, Petitioner points out that the seller of the boat, Frank Deebold, had neglected the boat and had only made repairs that were absolutely necessary to operate the vessel. Thus, when Petitioner purchased the vessel, numerous repairs were made to make it seaworthy including 1) repaired electrical wiring; 2) sealed the deck seams; 3) reconnected the port fuel tank; 4) repaired the clutch in the port engine; 5) repaired leaks in the starboard stern quarter; 6) replaced and rebolted the chines; 7) replaced a section of the keel; 8) rebuilt the main clutch; 9) caulked deck; 10) replaced or repaired the winch on the anchor; 11) reworked and/or repaired the engine room, including insulation, lighting, lining, painting and hauling. To perform these repairs, Petitioner places the value on materials utilized at approximately $18,000.00. Additionally, Petitioner estimated that the value of his labor involved in making the approximately $25,000.00. The articles of agreement for the purchase of the boat provides in pertinent part as follows: Witnesseth, that if the said party of the second part shall (purchaser) first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part (seller) hereby covenants and agrees to convey and assure to the said party of the second part, his heirs, personal represent- atives or assigns, clear of all encumbrances, whatever by a good and sufficient bill of sale the Oil Screw vessel, Captain Deebold, o/n294675, gross tons-36, its equipment, hull, machinery, present insurance policies and business including fifty or more used rods and reels, one 3.5 KW Lister auxiliary generator, used and in need of repair, spare Jabsco water pump (used and in need of repair), spare 24 volt DC alternator, spare 24 volt DC main engine starter, spare stub shaft, three spare propellers (used and in need of repair) and a spare UHF Pierce- Simpson radio transceiver (used and in need of repair) and the said party of the second part hereby covenants and agrees to pay to the said party of the first part the sum of seventy-five thousand and 00/100 ($75,000.00) dollars in the manner following. . . . Nevertheless, Petitioner stressed that inasmuch as the Articles of Agreement provided that the seller only required Petitioner to maintain insurance coverage in the amount of $50,000.00 indicating that the purchase price was something less than $75,000.00 and in fact was no more than $50,000. Pursuant to the Articles of Agreement, the amount insurance coverage required was $50,000.00. Petitioner also declared that included in the $75,000.00 purchase price were other items which included the business (dock space), and reduced prices for miscellaneous supplies and fuel prices. In this regard, an examination of the Articles revealed that these items were provided Petitioner on a cost plus basis and the dock space was leased for an amount based on a rebate of the percentage of ticket sales or charter fees received. Petitioner ultimately sold the boat for 95,000.00. Petitioner initially tried to sell the boat for the sum of $105,000.00 of which $10,000.00 represented the value he (Petitioner) placed on the business. An examination of the accounting records introduced indicated that Petitioner placed the sum of $75,000.00 as the purchase price for the boat. Petitioner thought that his estimation of the labor and materials necessary to properly repair the boat were items that could be used as a setoff to reduce the amount of taxes due. Petitioner testified that he, in no way, intended to defraud the Respondent of taxes properly due and owing. Petitioner's testimony in this regard is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: Petitioner remit to the Respondent the proper interest as set forth herein in paragraph 4 of the Conclusions of Law. Petitioner remit to the Respondent an administrative penalty of 5 percent of the aggregate taxes due as set forth herein in Paragraph 5 of the Conclusions of Law. Petitioner not be held liable for payment of for allegedly filing a "false or fraudulent" return for reasons set forth herein in Paragraph 6 of the Conclusions of Law. RECOMMENDED this 27th day of February 1981, in Tallahassee, Florida. JAMES E. BRADWELL 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 27th day of February 1981.
The Issue The two issues for determination are: (1) whether Rhinehart Equipment Co. (Rhinehart) a foreign corporation domiciled in Rome, Georgia, during the period July 1, 2002, through June 30, 2005, had "substantial nexus" with the state of Florida through its advertising, sale, and delivery into Florida of new and used heavy tractor equipment, sufficient to require it to collect and remit sales tax generated by these sales to the Florida tax authorities; and (2) Whether the applicable statute of limitations for assessing sale tax had expired when DOR issued its "final assessment" on September 11, 2009.
Findings Of Fact The Parties Rhinehart Equipment Co. (“Rhinehart”) is a retail heavy equipment dealer located in Rome, Georgia, and does not own or maintain a showroom or office location in Florida or directly provide financing to any Florida resident for any of its sales. Rhinehart does not provide Florida customers with any after-sale services such as assembly, technical advice, or maintenance. Rhinehart does not have any employees residing in Florida. Respondent is an agency of the State of Florida charged with the regulation, control, administration, and enforcement of the sales and use tax laws of the state of Florida embodied in Chapter 212, Florida Statutes, and as implemented by Florida Administrative Code Chapter 12A-1. Background In early March 2005, the Department received an anonymous tip pursuant to section 213.30, Florida Statutes. The caller alleged that Rhinehart was selling equipment to Florida residents without including sales and use tax in the sales price and was delivering the equipment to Florida customers using its own trucks. The tipster also alleged that Rhinehart was advertising in a commercial publication Heavy Equipment Trader, Florida Edition. By letter dated March 31, 2005, Respondent contacted Rhinehart and advised that its business activities in the state might be such as to require Rhinehart to register as a “dealer” for purposes of assessing Florida sales and use tax, and that it could be required to file corporate income tax returns, potentially subjecting it to liability for other Florida taxes. Included with this letter was a questionnaire for Rhinehart to complete and return to the Department "to assist us in determining whether Nexus exists between your company and the State of Florida." On May 2, 2005, Rhinehart, without the advice of counsel, responded to the Department’s inquiry by returning the completed questionnaire, which was signed by its president, Mark Easterwood. By letter addressed to Mr. Easterwood dated May 4, 2005, the Department advised that it had determined that Rhinehart had nexus with the state of Florida and that therefore Rhinehart was required to register as a dealer to collect and remit Florida sales and use tax. According to the letter, the Department's determination was "based on the fact that your company makes sales to Florida customers and uses the company's own truck to deliver goods to customers in the State of Florida." By application effective July 1, 2005, Rhinehart registered to collect and/or report sales and use tax to the state of Florida, In a letter dated June 8, 2005, the Department invited Rhinehart to self-disclose any tax liability that it may have incurred during the three-year period prior to its registration effective date, to wit, July 1, 2002, through June 30, 2005 (the audit period). Specifically, the letter stated: At this time, we would like to extend an opportunity for you to self-disclose any tax liability that you may have incurred prior to your registration effective date (for the period July 1, 2002, through June 30, 2005). This Self-Disclosure Program affords you an opportunity to pay any applicable tax and interest due for the prior three-year period (or when Nexus was first established) without penalty assessments. In response to the Department's June 8, 2005, letter, Rhinehart's legal counsel sent a letter dated August 8, 2005, requesting a meeting or conference call to discuss a "few legal issues" concerning the Department’s determination regarding nexus. Thereafter, Rhinehart began filing the required tax returns relating to its Florida sales, noting in writing by cover letter that the returns were being filed “under protest.” Rhinehart began collecting and remitting sales and use tax starting in July 2005. However, Rhinehart declined to provide any information regarding sales made prior to July 1, 2005. On September 30, 2005, Rhinehart's legal counsel sent the Department a detailed protest letter and advised that, in Rhinehart's view: (1) the Department had not established “substantial nexus” with Florida as interpreted under the Commerce Clause of the United States Constitution; and (2) Rhinehart was not required to register as a Florida dealer for sales and use tax purposes. On May 23, 2008, the Department issued a "Notice of Intent to Make an Assessment," and on September 11, 2009, a "Notice of Final Assessment," for the audit period. The assessment totaled $354,839.30, which was comprised of $229,695.00 in taxes and $125,144.30 in interest. The assessment was calculated by Respondent using Rhinehart’s sales tax returns filed from July 2005 through March 2008. The Notice of Final Assessment advised Rhinehart that the final assessment would become binding agency action unless timely protested or contested through the informal protest process, or by filing a complaint in circuit court or petition for an administrative hearing. Rhinehart unsuccessfully sought to resolve the matter through informal review and then ultimately filed its petition seeking an administrative hearing to challenge the Department's September 11, 2009, assessment. Based on sales records and other information provided by Rhinehart, on March 9, 2011, the Department revised its September 11, 2009, assessment. The revised assessment totaled $380,967.89, which included the past due sales and use tax liability, and interest accrued through that date. Rhinehart's Florida Activities Rhinehart produced records of its sales to Florida customers during the audit period. Those records reflected sales to 116 different Florida customers as follows: one sale in the second-half of 2002; 12 sales in 2003; 84 sales in 2004; and 19 sales thorough June 2005. The total value of the merchandise sold to Florida residents was $2,928,981.00. The majority of Rhinehart's sales during the audit period were "sight unseen" by the customer, and were negotiated by telephone. Numerous hurricanes made landfall in Florida during the 2004 and 2005 hurricane season. Since 2005, Rhinehart’s sales to Florida customers have substantially dropped, with no sales occurring in some quarters. During the audit period Rhinehart accepted a number of trade-ins toward the purchase of new equipment. The records showed trade-in transactions as follows: none (0) in 2002; five (5) in 2003; eleven (11) in 2004; and none in 2005. Concurrent with the delivery of the new equipment purchased from Rhinehart, used equipment taken in trade was transported by Rhinehart employees using Rhinehart transport equipment back to Rhinehart’s location in Georgia. In these instances, the trade-in equipment remained with the Florida customer following negotiation of the sale and prior to Rhinehart physically taking possession of it. During the audit period the equipment accepted as trade-ins had a total value of $168,915.00. The valuation of trade-in equipment was done based on a customer’s representations (i.e. sight unseen, with no Rhinehart employee personally inspected the equipment) and pursuant to industry guidelines. Rhinehart’s drivers would deliver the purchased equipment, load any trade-in equipment, and return to Georgia, if possible, on the same day. To the extent that the Department of Transportation regulations mandated that they cease driving in a given day, the drivers would rest in the back of their trucks for the required amount of time, sometimes overnight, and then complete their journey back to Georgia. Rhinehart's dealership is located approximately 300 miles north of the Florida state line. Sales invoices reflect that Rhinehart's customers were located throughout the state of Florida, as far south as Miami on the east coast and Naples on the west coast. During the audit period, Rhinehart placed advertisements with with the Trader Publishing Company, located in Clearwater, Florida. The Trader Publishing Company is the publisher of the Heavy Equipment Trader magazine which is distributed in Georgia, Alabama, Florida, and Tennessee. Trader Publishing Company publishes a "Florida Edition" of the magazine which is directed to potential heavy equipment customers located in Florida. Stipulated Exhibit 19 consists of advertising invoices for advertisements placed by Rhinehart in the Florida Edition of Heavy Equipment Trader magazine during the audit period. These invoices establish that Rhinehart regularly and systematically purchased advertising for its products which was targeted toward potential customers located in Florida.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Revenue: Confirming that substantial nexus existed during the audit period and that Petitioner was therefore subject to the taxing authority of the state of Florida; Confirming that the assessment at issue is not time- barred; Allowing Petitioner a reasonable period of time to determine whether any of the sales it made during the audit period would have qualified as exempt sales pursuant to section 212.08(3) and if so, to obtain the required certifications from the purchasers; and Imposing on Petitioner an assessment for the unpaid taxes, with accrued interest, for all sales during the audit period not qualifying for exemption. DONE AND ENTERED this 27th day of August, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 27th day of August, 2012.
Conclusions This matter is before Florida Agricultural and Mechanical University Board of Trustees (“FAMU,” “Petitioner,” or the “University”) for final agency action. By letter dated March 10, 2010, Gerald Grow, Respondent, was notified by the University that it was determined, as a result of an internal payroll audit, that he was overpaid in the amount of $1,165.77 by the University. Pursuant to Section 120.57(1), Florida Statutes, Respondent requested a disputed-fact hearing to protest the alleged salary overpayment and the cause was referred to the Division of Administrative Hearings (DOAH) on or about June 22, 2010. Respondent's request for hearing was assigned DOAH case number 10-003398. The Administrative Law Judge assigned to review the matter scheduled a disputed-fact hearing for September 20, 2010. On or about July 1, 2010, Respondent filed a notice advising that he tendered $1,165.77 to the University, that the tendered amount was accepted by the University, and that he was withdrawing his request for a disputed-fact hearing because the matter had been “settled.” By Order entered July 27, 2010, DOAH closed its file and relinquished jurisdiction to the University. Accordingly, it is hereby Ordered and Adjudged that Respondent's debt obligation to the University of $1,165.77 has been satisfied and further that the instant matter is closed. Respondent may seek judicial review of this Final Order pursuant to Florida Rule of Appeliate Procedure 9.190, applicable to review of quasi-judicial decisions of an administrative body not subject to the Administrative Procedure Act, by filing a petition for certiorari review within thirty (30) days of the date this Final Order is filed with the Agency Clerk. DONE and ORDERED this 1st day of November, 2010. pnts H Cvassate H. Ammons President File with the Agency this day of November, 2010. Agency Clerk Copy: Teresa Hardee, CFO and Vice President, Administrative and Financial Services Avery D. McKnight, General Counsel Linzie F. Bogan, Associate General Counsel, Director of Labor Relations Nellie C. Woodruff, Associate Vice President, Human Resources Ciaudia Liado, DOAH Clerk Gerald Grow, Respondent
Findings Of Fact Respondent is a registered real estate salesman and between the period of May 10, 1973 and May 15, 1974, he was registered with the Florida Real Estate Commission as a salesman with International Real Estate Coordinators, Inc., Miami, Florida (Petitioner's Exhibit 7). In the summer of 1973, Respondent was introduced to a land developer named Armand Archer by a realtor in Fort Lauderdale. Through this meeting, Respondent learned of a parcel of land located in Santa Rosa County consisting of about 8,000 acres which was owned by a joint venture consisting of the Santa Rosa Development Corporation, a Florida Corporation controlled by Mr. Archer, and the Charter Development Corporation of Jacksonville, Florida. Respondent became interested in the potential of the land for development and visited Archer in Pensacola in order to look over the property. At that time, he gave Archer his card as a salesman for International Real Estate Coordinators, Inc. Archer thereafter gave the Respondent a verbal open listing to sell the land. Other listings had been or were later given to other real estate firms. According to the Respondent, the arrangement with Archer was that he would pay the Respondent $500.00 a week as salary for services to be rendered in promoting the sale of the land, plus 20 percent of the stock in the Santa Rosa Development Corporation. On the other hand, Archer testified that the Respondent was simply acting as a salesman for International Real Estate Coordinators, Inc., and that he advanced Gomer some $6,800 during the period July, 1973 to January, 1974 for expenses and as a draw upon any future commissions if the Respondent was successful in selling the tract of land. Archer conceded, however, that he had had discussions with the Respondent to the effect that if he eventually made the sale, he might be brought into the company. Archer maintained that Respondent was never an employee of Santa Rosa Development Corporation even though the Respondent worked full-time out of the offices of that corporation. During this period, Respondent exerted great efforts in attracting prospective purchasers for the real estate in question, arranged for an appraisal of the land, assisted in designing a plan for development of the property and publishing a brochure, and arranged for financing by Bankers Trust Company of New York. Respondent devoted approximately eight months to these endeavors in behalf of Mr. Archer and the Santa Rosa Development Corporation (Testimony of Marlene Archer, Armand Archer, Bernard Gomer; Petitioner's Composite Exhibit 1; Respondent's Exhibit 8). Although Respondent denied actively working for International Real Estate Coordinators, Inc. during the period of time he was pursuing the interests of Santa Rosa Development Corporation, the evidence shows that he did continue to represent International Real Estate Coordinators, Inc., to some degree during that time. In August, 1973, Mr. Richard E. Grant, the real estate broker for International Real Estate Coordinators, Inc. terminated his association with that corporation. Although Mrs. Archer testified that she was aware of this fact and had urged the Respondent to secure another broker during the fall of 1973, the Respondent disclaimed knowledge of Mr. Grant's action until January, 1974, after discussions with representatives of the Florida Real Estate Commission. He was instrumental in then having Mr. Archer become the President of International Real Estate Coordinators, Inc., in January, 1974, for a brief period of time for the reason of securing a new broker in order that any real estate commission could be shared by the two corporations if a remaining portion of the land in Santa Rosa County was purchased. To this end, Mr. Archer as president of International Real Estate Coordinators, Inc., gave permission to Mr. Manuel Grossman to serve as an acting broker for that corporation and Mr. Grossman proceeded on January 11, 1974 to apply to the Florida Real Estate Commission for a multiple certificate as broker for International Real Estate Coordinators, Inc. Respondent, on January 12, 1974, wrote to the Florida Real Estate Commission advising that he had only recently learned of Mr. Grant's departure from the corporation, and that a new broker had been secured. (Testimony of Marlene Archer, Armand Archer; Respondent's Composite Exhibits 3, 4 & 5). In late January, 1974, Respondent and Archer had a falling out which apparently stemmed from Respondent's discovery that a civil lawsuit had been filed against Archer by others in federal court concerning the Santa Rosa County land. By a letter, dated February 1, 1974, Archer advised Respondent that he should remove himself and his possessions from the office at his earliest opportunity. Respondent thereafter on May 15, filed suit against Armand Archer and the Santa Rosa Development Corporation in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, asking damages for failure of the defendants to abide by their agreement to give him a 20 percent equity interest in Santa Rosa Development Corporation for services rendered and to be rendered. The complaint in this lawsuit was amended in February, 1975, to recite that Archer had hired the Respondent on or about May 10, 1973 to be a full-time employee of Santa Rosa Development Corporation at a weekly salary of $500.00 as compensation for services to be rendered to the corporation and, that he was so employed for a period of 36 weeks, thereby earning a total salary of $18,000.00 of which was due and owing the sum of $14,000.00 as back salary Additionally, the amended complaint alleged that Respondent was to receive as compensation for his services to be rendered to the Corporation 20 percent of its stock to be conveyed to him by Archer and that, despite numerous requests, Archer had refused to convey the said stock to him. Respondent claimed at the hearing that he filed this suit upon the advice of his attorneys who had provided him with bad advice (Testimony of Gomer; Petitioner's Exhibits 2-6; Respondent's Exhibit 6). Official records of the Florida Real Estate Commission do not show Santa Rosa Development Corporation as a registered corporate real estate broker or that during the period May 10, 1973 to May 15, 1974 Respondent registered Santa Rosa Development Corporation as his employer (Petitioner's Exhibit 7).
Findings Of Fact Case history On January 25, 2006, Renee Michelle Oliver, on behalf of and as parent and natural guardian of Ian David Oliver (Ian), a minor, and Renee Michelle Oliver, individually, filed a petition with the Division of Administrative Hearings (DOAH) to resolve whether Ian qualified for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan), and whether the hospital at which Ian was born (Central Florida Regional Hospital) and the participating physician who delivered obstetrical services at Ian's birth (David C. Mowere, M.D.) complied with notice provisions of the Plan. Additionally, the petition raised certain constitutional issues regarding the Plan. More particularly, the petition alleged: This Petition is being filed in compliance with the Circuit Court Order of Honorable James Perry dated January 18, 2006.[1] The Petitioners do not believe this claim falls properly under the NICA Act and file this Petition under protest. Further, Petitioners state that the NICA Act is unconstitutional as written and unconstitutional as specifically applied to this claim. Further, Petitioners state that clear and concise notice was never given to Renee Oliver by either Dr. Mowere or Central Florida Regional Hospital as required by 766.316, Florida Statutes of her rights and limitations under the NICA plan. Additionally, Petitioners would state that the composition of the NICA Board of Directors is biased on its face and it creates an unconstitutional lack of due process and proper access to the Courts. DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the petition on January 25, 2006, and on July 28, 2006, following a number of extensions of time within which to do so, NICA gave notice that it was of the view the claim was compensable, and requested that a hearing be scheduled to resolve compensability. In the interim, Central Florida Regional Hospital, as well as Dr. Mowere and Mid-Florida OB/GYN Specialists, P.A. (the practice at which Dr. Mowere was a member, and at which Ms. Oliver received her prenatal care), were accorded leave to intervene. (Order on Compensability and Notice, p. 4, and paragraph 8). Given the issues raised by the petition, a hearing was scheduled for October 10, 2006, to address compensability and notice, and leaving issues related to an award, if any, to be addressed in a subsequent proceeding. § 766.309(4), Fla. Stat.2 The parties were also accorded the opportunity to make a record with regard to the constitutional issues Petitioners had raised. Shortly before hearing, on September 29, 2006, the parties filed a Joint Pre-Hearing Stipulation whereby it was agreed the claim was compensable (a "participating physician" (Dr. Mowere) delivered obstetrical services at Ian's birth and Ian suffered a "birth-related neurological injury"), and that the hospital and the participating physician provided Ms. Oliver a copy of the NICA brochure, as required by Section 766.316, Florida Statutes. Left to resolve, with regard to notice, was whether the NICA brochure "include[d] a clear and concise explanation of a patient's rights and limitations under the plan," as required by Section 766.316, Florida Statutes. Otherwise, the only unresolved matter pending was the opportunity for the parties to make a record on the constitutional issues Petitioners had raised. As heretofore noted in the Preliminary Statement, the hearing was held as scheduled, on October 10, 2006, and on November 16, 2006, an Order on Compensability and Notice was entered. Thereafter, following Petitioners' unsuccessful appeal of that order to the Fifth District Court of Appeal, the parties resolved all issues related to the award, except those related to the amount owing for reasonable attorney's fees and expenses. The award provisions of the Plan relating to attorney's fees and costs Pertinent to this case, Section 766.31(1)(c), Florida Statutes, provides for an award of the following expenses: (c) Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge. In determining an award for attorney's fees, the administrative law judge shall consider the following factors: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly. The fee customarily charged in the locality for similar legal services. The time limitations imposed by the claimant or the circumstances. The nature and length of the professional relationship with the claimant. The experience, reputation, and ability of the lawyer or lawyers performing services. The contingency or certainty of a fee. The claim for attorney's fees To calculate a reasonable attorney's fee, the first step is to determine the number of hours reasonably expended pursuing the claim. See Standard Guarantee Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990); Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 633 So. 2d 1103 (Fla. 3d DCA 1994). Notably, "[u]nder the 'hour-setting' portion of the lodestar computation, it is important to distinguish between 'hours actually worked' versus 'hours reasonably expended'." Carreras, 633 So. 2d at 1110. . . . "Hours actually worked" is not the issue. The objective instead is for the trier of fact to determine the number of hours reasonably expended in providing the service. 'Reasonably expended' means the time that ordinarily would be spent by lawyers in the community to resolve this particular type of dispute. It is not necessarily the number of hours actually expended by counsel in the case. Rather, the court must consider the number of hours that should reasonably have been expended in that particular case. The court is not required to accept the hours stated by counsel. In re Estate of Platt, 586 So. 2d 333-34 (emphasis in original). The trier of fact must determine a reasonable time allowance for the work performed-which allowance may be less than the number of hours actually worked. Such a reduction does not reflect a judgment that the hours were not worked, but instead reflects a determination that a fair hourly allowance is lower than the time put in. Id. Moreover, only time incurred pursuing the claim is compensable, not time incurred exploring civil remedies or opportunities to opt out of the Plan through lack of notice or otherwise. Carreras, 633 So. 2d at 1109. See also Braniff v. Galen of Florida, Inc., 669 So. 2d 1051, 1053 (Fla. 1st DCA 1995)("The presence or absence of notice will neither advance nor defeat the claim of an eligible NICA claimant who has decided to invoke the NICA remedy . . .; thus, there is no reason to inquire whether proper notice was given to an individual who has decided to proceed under NICA. Notice is only relevant to the defendants' assertion of NICA exclusivity where the individual attempts to invoke a civil remedy."). Accord, O'Leary v. Florida Birth-Related Neurological Injury Compensation Plan, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("We recognize that lack of notice does not affect a claimant's ability to obtain compensation from the Plan."). Finally, a fee award must be supported with expert testimony, and cannot be based entirely on the testimony of the claimant's attorney. Palmetto Federal Savings and Loan Association v. Day, 512 So. 2d 332 (Fla. 3d DCA 1987); Fitzgerald v. State of Florida, 756 So. 2d 110 (Fla. 2d DCA 1999). See Nants v. Griffin, 783 So. 2d 363, 366 (Fla. 5th DCA 2001)("To support a fee award, there must be evidence detailing the services performed and expert testimony as to the reasonableness of the fee Expert testimony is required to determine both the reasonableness of the hours and reasonable hour rate."). To support the claim for attorney's fees, Petitioners offered an "Attorney Services" statement, which reflects a claim for 81 hours Petitioners' counsel, Gary Cohen, claims he dedicated to the claim. (Petitioners' Exhibit 1). Notably, the statement is not a business record, since Mr. Cohen did not, and does not in the ordinary course of his practice, maintain time records. Rather, the statement represents an effort to construct a time record to support Petitioners' claim for fees, and provides a summary of activities performed, with an estimate of time expended for each activity documented. The major activities were noted as "Meeting with Clients (2005)," 4.0 hours; "Preparation of Petition for Benefits," .5 hours; "Research before Petition re: NICA" (five areas listed), 10.5 hours; "Medical Records Review" (21 providers listed), 17.5 hours; "Depositions: Preparation and Attendance at" (6 depositions), 16.5 hours; "Hearings: Preparation and Attendance at" (9 entries), 8.75 hours; "Motions and Pleadings" (23 entries), 9.25 hours; "Correspondence: 2/06-9/06 77 letters and attachments," 10 hours; and "Expert Conferences" (with Dr. Mary Minkin, Dr. James Balducci, Frederick Raffa, Ph.D., and Paul Deutch, Ph.D., at 1 hour each), 4 hours. Where, as here, "attorneys have not kept contemporaneous time records, it is permissible for a reconstruction of time to be prepared." Brake v. Murphy, 736 So. 2d 745, 747 (Fla. 3d DCA 1999). However, the attorney must present evidence of his services in "sufficient . . . detail to allow a determination of whether each activity was reasonably necessary and whether the time allocation for each was reasonable." Id. (Emphasis omitted). See Florida Patient's Compensation Fund v. Rowe, 472 So. 2d at 1150 ("Inadequate documentation may result in a reduction of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary."); Lubkey v. Compuvac Systems, Inc., 857 So. 2d 966, 968 (Fla. 2d DCA 2003)("[T]he party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible."). Here, counsel claims 4 hours for a "Meeting with Clients (2005)," that likely predated the trial court's order of abatement and likely involved a discussion of matters not directly related to the NICA claim (Tr., p. 37). Nevertheless, an initial conference with a client, and the information obtained regarding her circumstances, is a natural starting point for any claim, be it a NICA claim or one sounding in medical malpractice. Consequently, the time claimed (4 hours) being reasonable, counsel should be compensated for his time. Also reasonable, is counsel's claim of .5 hours for "Preparation of Petition for Benefits." However, counsel's claim for "Research before Petition re: NICA," 10.5 hours, is, but for the claim of "NICA statute 766.302," 1 hour, rejected as the activities noted were not shown to be reasonably necessary to filing or pursuing the claim, and the time allocation for each activity was not shown to be reasonable. In so concluding, it is noted that the research activities mentioned ("Benefit Handbook," 2 hours; "NICA Notice and handout," .5 hours; "Case law re: NICA," 2.5 hours; and "Task Force Recommendation," 4.5 hours) are vague on specifics, and not demonstrative of necessity to filing a petition. It is further noted that the requisites for filing a claim are straight forward, and an attorney of moderate experience should experience no difficulty in filing a claim. Additionally, it is noted that counsel's testimony revealed he had filed 24 to 36 claims for compensation, and presumably was familiar with the requisites to file a claim. Consequently, if such "research" was done, apart from reviewing the statutory provisions of the Plan, it likely related to the issues of notice and constitutionality, and not issues related to compensability or benefits, which are prescribed by Sections 766.301, et seq., Florida Statutes. Finally, there is nothing to support a conclusion that the time claimed for each task was reasonable. Consequently, for Petitioners' claim for "Research before Petition re: NICA," 1 hour is considered reasonable. Next, counsel claims 17.5 hours for "Medical Records Review." Included are the medical records of 19 providers, and the reports of Michael Duchowny, M.D. (Respondent's Exhibit 2), and Donald Willis, M.D. (Respondent's Exhibit 1). With regard to the time claimed for reviewing (reading) Dr. Duchowny's report (.5 hours) and Dr. Willis' report (.5 hours), that time is disallowed as unreasonable (excessive) and redundant, since counsel requested and was granted credit, discussed infra, under "Motions and Pleadings" for .5 hours associated with "Receipt and review of NICA's Notice of Compensability, which included a copy of the reports of Doctors Duchowny and Willis. Otherwise, the remaining record review, as well as the time allocation (16.5 hours), was reasonable. Next, counsel claims 16.5 hours for "Depositions: Preparation and Attendance at " the depositions of Renee Oliver, on July 17, 2006; Patty Osbourne, R.N., on July 20, 2006; Jenette Dorff, R.N., on July 20, 2006; Debra Brinkmeyer, R.N., M.D., on July 20, 2006; David Mowere, M.D., on August 3, 2006; and Kenney Shipley, on September 27, 2006. With regard to the time claimed incident to the depositions of Dr. Mowere and Ms. Shipley (6 hours), it must be resolved that such time was not shown to be reasonably necessary to the pursuit of the claim. In so concluding, it is noted that by the time Dr. Mowere was deposed (August 3, 2006), NICA had agreed the claim was compensable. Under such circumstances it is unreasonable to expect NICA to pay for time expended that addressed compensability and notice. With regard to Ms. Shipley's deposition, taken September 27, 2006, it is also observed that when she was deposed, NICA had agreed the claim was compensable, and the only issues pertinent to her deposition were notice and the constitutionality of the Plan. Indeed, those were the announced reasons Petitioners requested, and were accorded leave to take her deposition. (See Petitioners' Motion for Request of the Deposition of Kenney Shipley, Executive Director of NICA, filed May 1, 2006; Order, July 13, 2006.) Such being the case, it is not reasonable to expect NICA to pay for time associated with Ms. Shipley's deposition. With regard to time associated with the depositions of Ms. Oliver, taken by Intervenors on July 17, 2006, and Nurses Osbourne, Dorff, and Brinkmeyer, taken July 20, 2006, the circumstances are different since NICA had not yet agreed the claim was compensable. Consequently, since Nurse Osborne's deposition addressed compensability, the 1.5 hours incurred attending her deposition was reasonably related to the claim. With regard to the depositions of Ms. Oliver, and Nurses Dorff and Brinkmeyer, those depositions addressed both compensability and notice. However, the time associated with notice was de minimus. Consequently, the 5 hours incurred in attending their depositions (Ms. Oliver, 3.5 hours, Nurse Dorff, .5 hours, and Nurse Brinkmeyer, 1 hour) were reasonably related to the claim. Also reasonably related to the claim were the 4 hours incurred preparing for Ms. Olivers' and the nurses' depositions. In all, 10.5 hours were reasonably dedicated to preparation and attendance at depositions. Next, counsel claims 8.75 hours for "Hearings: Preparation and Attendance at," 7 hearings (items a-f and h), preparation for final hearing (item g), and review of judge's final order (item i). With regard to the time claimed for a hearing on February 23, 2006 (.25 hours) and September 15, 2006 (.25 hours), no hearing was held, and that time is disallowed. However, with regard to the hearing of March 22, 2006 (item b), Petitioner overlooked noting time dedicated to that hearing, and is entitled to a .5 hour credit.3 With regard to the time claimed for attendance at the final hearing of October 10, 2006 (2.0 hours), given that issues related to compensability were resolved prior to hearing, and most of the time at hearing involved issues related to notice and compensability, only .5 hours are approved as reasonably related to the claim. Moreover, given the issues left to address at hearing, of the time claimed for preparation for hearing (4.0 hours), only 1 hour will be approved as reasonable. Petitioners' claim of .5 hours to review the final order is reasonable. In all, under the activity "Hearings: Preparation and Attendance at," 4.25 hours are found to be reasonably incurred in pursuing the claim. Next, counsel claims 9.25 hours for various activities associated with "Motions and Pleadings," such as preparation, receipt, review, and research, and has documented a claim for 23 entries (items a-w). With regard to Petitioners' claim of 1.0 hour for "Receipt, review, research into Defendant Mowere & Hosp Motion to Intervene; Petitioners' Objection to Motion to Intervene" (item a), that claim is disallowed as such activities that related to Petitioners' objection (apart from receipt and review of the motions, which time was de minimus), were frivolous.4 As for Petitioners' claim of .5 hours related to preparation of motion to depose Ms. Shipley (item i), and .25 hours related to review of Respondent's response (item k), that .75 hours is disallowed, as it relates to Petitioners' notice and constitutional claims. As for items f (.25 hours), j (.25 hours), n (.25 hours), o (.25 hours), p (.25 hours), s (.25 hours), and u (.25 hours), 1.75 hours, those activities only warrant a claim for .1 hours each (.7 hours). The other activities (5.75 hours) are reasonable. In all, 6.45 hours were reasonably expended on motions and pleadings. Next, counsel claims 10.0 hours for preparing or reviewing, from "2/06-9/06 [,] 77 letters and attachments by and between counsel for Petitioner, counsel for NICA and Judge Kendrick." Notably, there was no explanation of what those letters related to, what issues they addressed, or any method offered to assess whether the time allocation was reasonable. Accordingly, the proof failed to support a conclusion that the activity or hours claimed was reasonable, and the 10 hours claimed is disallowed. Finally, counsel claims 4 hours for "Expert Conferences" with Dr. Minkin (1 hour), Dr. Balducci (1 hour), Dr. Raffa (1 hour), and Dr. Deutch (1 hour). However, there was no explanation of when the conference occurred, what was discussed, or any proof to support a conclusion that the time allocation was reasonable and related to the pursuit of the claim. Accordingly, the proof failed to support the conclusion that the activity or hours were reasonable.5 Here, the total time and labor reasonably expended to pursue the claim was 43.20 hours. The next consideration in establishing a reasonable fee is the determination of the fee customarily charged in the locality for similar legal services, when the fee basis is hourly billing for time worked. Carreras, 633 So. 2d at 1108. Here, given the nature of the expertise and legal skills required, for what may be described as a moderately complex case, the proof supports the conclusion that the "market rate" (a rate actually being charged to paying clients) is $300.00 an hour. A reasonable fee under the methodology established by Florida Patient's Compensation Fund v. Rowe, supra, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, supra, is determined by multiplying the hours reasonably expended by the reasonable hourly rate. The results produce the "lodestar figure" which, if appropriate, may be adjusted because of the remaining factors contained in Section 766.31(1)(c), Florida Statutes. Applying such methodology to the facts of this case produces a "lodestar figure" of $12,960.00 (43.20 hours x $300 per hour). Upon consideration of the facts of this case, and the remaining criteria established at Section 766.31(1)(c)3-6, Florida Statutes, there is no apparent basis or reason to adjust the "lodestar figure." In this regard, it is observed that there were no significant time limitations shown to have been imposed by the claimants or the circumstances in this particular case, and the nature and length of the professional relationship with the claimants was likewise a neutral consideration. The experience, reputation and ability of the lawyer who performed the services has been considered in establishing the reasonable hours and reasonable hourly rate and does not, in this case, afford any additional basis to adjust the "lodestar figure." Finally, although counsel was employed on a contingency fee basis and stood to recover no fee if he proved unsuccessful in pursuing the claim or, alternatively, in pursuing a malpractice action, the contingency nature of the fee arrangement does not warrant an adjustment of the "lodestar figure." Given the nature of the claim, which was relatively straight-forward, lacked any novel aspects, and the earliest medical records disclosed the infant had likely suffered a significant brain injury during birth, the risk of nonrecovery was not sufficient to warrant any adjustments. The claim for other expenses Finally, Petitioners' counsel incurred certain expenses in his representation of Petitioners for which he seeks recovery. (Petitioners' Exhibit 2). Such costs total $33,075.24. However, at hearing, Petitioners withdrew the claim for "Services," set forth at the top of page 1, Petitioners' Exhibit 2, in the sum of $3,537.50, leaving a claim for $29,537.74. (Tr., pp. 73 and 73). Of those costs, NICA did not object to the following expenses: 08/09/05 OB/GYN Clinic Records $ 19.31 09/07/05 West Volusia Pediatrics $ 150.00 09/08/05 Pediatric Surgery $ 4.00 09/13/05 Community Medical Assoc. $ 7.82 09/16/05 Florida Hospital $ 1,360.55 09/21/05 Seminole County $ 3.50 09/28/05 Childrens Resp. Care $ 9.00 09/28/05 Donald Willis, M.D. $ 1,000.00 10/11/05 Pediatric Neurology $ 7.00 01/20/06 DOAH Filing Fee $ 15.00 08/09/06 Depo. Renee Oliver $ 496.30 11/01/06 Hearing Transcript $ 604.72 12/04/06 Halifax Med. Center $ 68.10 $ 3,745.30 Accordingly, such expenses, totaling $3,745.30, are awarded without further discussion. Pertinent to an award of expenses, the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, effective January 1, 2006, provide: Purpose and Application. These guidelines are advisory only. The taxation of costs in any particular proceeding is within the broad discretion of the trial court. The trial court should exercise that discretion in a manner that is consistent with the policy of reducing the overall costs of litigation and of keeping such costs as low as justice will permit. . . . Burden of Proof. Under these guidelines, it is the burden of the moving party to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken. Litigation Costs That Should Be Taxed. Depositions The original and one copy of the deposition and court reporter's per diem for all depositions. The original and/or one copy of the electronic deposition and the cost of the services of a technician for electronic depositions used at trial. Telephone toll and electronic conferencing charges for the conduct of telephone and electronic depositions. Documents and Exhibits The costs of copies of documents filed (in lieu of "actually cited") with the court, which are reasonably necessary to assist the court in reaching a conclusion. The costs of copies obtained in discovery, even if the copies were not used at trial. Expert Witnesses A reasonable fee for deposition and/or trial testimony, and the costs of preparation of any court ordered report. Witnesses Costs of subpoena, witness fee, and service of witnesses for deposition and/or trial. Court Reporting Costs Other than for Depositions Reasonable court reporter's per diem for the reporting of evidentiary hearings, trial and post-trial hearings. * * * III. Litigation Costs That Should Not Be Taxed as Costs. The Cost of Long Distance Telephone Calls with Witnesses, both Expert and Non- Expert (including conferences concerning scheduling of depositions or requesting witnesses to attend trial) Any Expenses Relating to Consulting But Non-Testifying Experts Cost Incurred in Connection with Any Matter Which Was Not Reasonably Calculated to Lead to the Discovery of Admissible Evidence Travel Time Travel time of attorney(s). Travel time of expert(s) Travel Expenses of Attorney(s) Also pertinent to an award of expenses are the following decisions: Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000)(recognizing that in the absence of exceptional circumstances, travel expenses for attorney to attend depositions should not be taxed as costs); Department of Transportation v. Skidmore, 720 So. 2d 1125 (Fla. 4th DCA 1998)(recognizing that postage, long distance calls, fax transmissions, delivery service, and computer research are overhead and not properly taxable as costs); Gray v. Bradbury, 668 So. 2d 296, 298 (Fla. 1st DCA 1996)("The prevailing party's burden, at an evidentiary cost hearing, to recover an expert witness fee is 'to present testimony concerning the necessity and reasonableness of the fee.'"); Powell v. Barnes, 629 So. 2d 185 (Fla. 5th DCA 1993)(recognizing that evidence to support an award for expert witness fees must come from witnesses qualified in the areas concerned); Gray v. Bradbury, 668 So. 2d at 298. (Testimony of "a trial attorney and an insurance casualty claim manager, who were not shown to have proficiency in the various fields of expertise at issue (ranging from accident reconstruction to neurosurgery)," was not competent to support an award for expert witness fees.); Carreras, 633 So. 2d at 1109 ("[T]he exploration of the possibility of opting out of NICA through the 'bad faith' exception or otherwise is not, as the statute requires, work performed 'in connection with the filing of a claim '"). Considering the foregoing standards, Petitioners have established their entitlement to the recovery of $828.00 as the court reporter's fee for the depositions of Nurses Osbourne, Brinkmeyer, and Dorff. However, since the electronic depositions were not used at hearing, those expenses are not recoverable. Expenses associated with the depositions of Dr. Ravello, which addressed notice; Dr. Mowere, the only relevant portion of which, at the time it was taken, dealt with notice; and Ms. Shipley, which addressed notice and the constitutionality of the Plan, are not recoverable. Also not recoverable are the fees Petitioners paid their various experts, since they were neither deposed nor testified at hearing, and there was no showing that their consideration of the claim was necessary or that their fee was reasonable. Finally, the remaining items were either not explicated or are considered overhead, and not taxable.
The Issue Whether Allstate Construction's (Allstate) bid was delivered in time. Whether Florida State University (FSU) had the authority to waive the lateness of Allstate's bid if it was late. Whether the failure by Allstate to acknowledge receipt of Addendum No. 2 was a bidding irregularity. Whether Allstate's failure to acknowledge receipt of Addendum No. 2 could be waived by FSU.
Findings Of Fact Florida State University requested bids for repairs to the roof and walls of Thagard Student Health Center on July 2, 1992. Thereafter, two addenda were issued. The first addendum was issued on July 27, 1992, and the second on July 28, 1992. Item #1 of Specifications in Addendum No. 1, which is attached, changed the date the bids were to be presented to August 6, 1992 at 2:00 p.m. in Room 124-D of Mendenhall Maintenance Building at FSU. Item #1 to Specifications in Addendum No. 2, which is attached, changed the specifications of ringlets and counterflashings published in Item #4 to Specifications in Addendum No. 1; and Item #2 in Addendum No. 2 changed the specifications of the materials in the cants published in the original specifications. On August 6, 1992, representatives of Harrell, Southeast, and FSU were present in Room 124-D, Mendenhall Maintenance Building prior to 2:00 p.m. Harrell and Southeast had already presented their bids to Sallie Dixon, FSU's representative. One of the persons present had called upon Ms. Dixon to call time and open the bids, but she had not done so when Dot Mathews and Joe O'Neil entered the room. Mr. O'Neil announced to those present that Ms. Mathews was late because he had misdirected her to another part of the building when Ms. Mathews's had entered the office he was in, Room 124, and had asked directions. Ms. Mathews immediately handed Allstate's bid to Ms. Dixon, and Ms. Dixon received it. Immediately, Ms. Dixon opened, tabulated, and posted the bids. Allstate had the lowest responsible bid. Allstate's bid did not acknowledge receipt of Addendum No. 2. FSU's rules on bidding provide that the official time will be that of the clock in the reception area of the Purchasing Department; however, the opening was held in Mendenhall Maintenance Building because of repairs to the Purchasing Department, and the university's officials were uncertain whether the reception area and clock existed at the time of the opening. It was the clear impression of all present, except Ms. Mathews, that the bid presented by Ms. Mathews was after 2:00 p.m. The estimates of the time varied, but none placed the time beyond 2:04 p.m. FSU generally sent an acknowledgment form with an addendum which required the bidders to acknowledge receipt of the addendum; however, in this instance, the addendum was sent by the supervising engineer, and an acknowledgment form was not sent with the addendum. The specifications did not require acknowledgment of addenda. The essence of the substantial amount of testimony received on the impact of the changes was (1) that the change in thickness of materials had a negligible impact, and (2) the real change in costs was the result of the requirement that the paint finish be by the manufacturer. The requirement that the materials be painted by the manufacturer was part of Addendum No.1. Further, the bidders are deemed manufacturers, and the finish that they put on the manufactured items is "by the manufacturer". Although testimony was received that Petitioner would have manufactured the items and then had them coated thereby increasing their total costs, an alternative method of manufacture was described by Allstate's representative in which the painted raw materials are retouched after being cut and welded into the finished structures. Petitioner's choice of the first method was explained by its representative to be its effort to comply with the bid requirement that the winning contractor guarantee the finish for twenty years. Intervenor's choice was to use the second method. To the extent that one method may have been more expensive that the other, there was no prohibition of the Petitioner to adopt the less expensive method; and, therefore, there was no economic advantage to Allstate. In the absence of an economic advantage to Allstate, Allstate's failure to acknowledge Addendum No. 2 was a minor irregularity. FSU waived the lateness of Allstate's bid and Allstate's failure to acknowledge Addendum No. 2, and awarded the bid to Allstate.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Petitioner's Petition be dismissed, and the bid be awarded to Allstate Construction, Inc. DONE and ENTERED this 30th day of October, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 30th day of October, 1992. APPENDIX CASE NO. 92-5465BID Florida State University and Allstate Construction, Inc. submitted proposed findings which were read and considered. The following states which findings were adopted and which were rejected and why: Florida State University's Proposed Findings: Para 1-4 Adopted. Para 5-7 Not necessary/irrelevant. Para 8 Adopted. Para 9-11 Not necessary/irrelevant. Para 12-24 Adopted. Para 25 Not necessary/irrelevant. Allstate Construction's Proposed Findings: Para 1,2 Adopted. Para 3 Not necessary/irrelevant. Para 4-8 Adopted. Para 9 Not necessary/irrelevant. Para 10-15 Adopted. COPIES FURNISHED: Wendell Parker Mike Harrell Harrell Roofing, Inc. P.O. Box 20421 Tallahassee, FL 32316 Sonja Mathews Florida State University 540 W. Jefferson Street Tallahassee, FL 32306-4038 Davisson F. Dunlap, Jr. 3375-A Capital Circle, N.E. Tallahassee, FL 32308 Jeff Miller Route 16, Box 1307 Tallahassee, FL 32310 Dale W. Lick, President Florida State University 211 Westcott Building Tallahassee, FL 32306-1037 Gerold B. Jaski, General Counsel Florida State University 540 West Jefferson Street Tallahassee, FL 32306
