The Issue The issue in this case is whether Respondent, the Southwest Florida Water Management District (District), should grant Environmental Resource Permit (ERP) No. 43023532.000 authorizing Respondent, Florida Department of Transportation (DOT or Department), to construct the Pinellas Bayway Bridge Replacement and associated surface water management system.
Findings Of Fact The Florida Department of Transportation is a state agency charged by statute with the construction, maintenance, and operation of the State Highway System. The Pinellas Bayway Bridge in Pinellas County, Florida, is part of the State Highway System. The Southwest Florida Water Management District is a political subdivision created pursuant to Chapter 61-691, Laws of Florida (1961), which exists and operates under the Water Resources Act, Chapter 373, Florida Statutes. The District has the regulatory authority to implement the ERP program in Pinellas County, Florida. The existing Pinellas Bayway Bridge (the Existing Bridge) is a two-lane bascule structure located within and spanning Boca Ciega Bay, an Outstanding Florida Water. It has three-foot wide walkways on both sides, with no shoulders for the travel lanes. The Existing Bridge connects the cities of St. Petersburg and St. Pete Beach, and was built approximately 40 years ago upon perpetual easements "for public State Road right of way purposes" conveyed in 1960 and 1961 from BOT/IITF to the State Road Department, the predecessor of the Department. The perpetual easements do not contain any restrictions on the perpetual right to construct and maintain a "public state road upon and/or over said land," other than conditions that recognize prior rights of the United States of America and prior grants by the Board of Trustees. The proposed replacement of the Existing Bridge will be located entirely within the boundaries of those perpetual easements. The practice and policy of the Board of Trustees of the Internal Improvement Trust Fund (BOT/IITF), and the Department of Environmental Protection (DEP), has been that, under Section 253.002(1), Florida Statutes, perpetual easements such as those conveyed for the Bayway Bridge are sufficient authorization for expansion of bridges within the boundaries of the perpetual easements. Since the time of construction of the Existing Bridge, the area served by it has transformed from a largely uninhabited barrier island to a densely developed area. The Department has been studying and preparing for replacement of the Pinellas Bayway Bridge since the early 1980's, and studying alternatives since the early 1990's. In the year 2000, with the concurrence of the Pinellas County Metropolitan Planning Organization, the cities of St. Petersburg and St. Pete Beach, and the United States Coast Guard, the Department determined that the best alternative for replacing the Existing Bridge was a fixed-span, high level bridge with four travel lanes and a pedestrian walkway along the southern side of the bridge (the Replacement Bridge or Project). The fixed-span alternative was selected as superior to low-level and mid-level bascule options for superior traffic efficiency, superior access for emergency vehicles, superior emergency evacuation, and improved boat traffic. As part of the design process of the Replacement Bridge, the Bayway Bridge Beautification Committee was formed to provide the Department with input from the residents as to the aesthetics of the Replacement Bridge. The Bayway Bridge Beautification Committee was made up of representatives from the neighborhood and homeowners associations in the area, and submitted a report containing suggested improvements that were incorporated into the ultimate design of the bridge, including lighting, hardscape, and landscape features. Each of the three replacement alternatives (low-level, mid-level, or high-level) would result in the elimination of parking spaces within existing Department right-of-way adjacent to the east and west ends of the Existing Bridge. These parking spaces are intended for the use of drawbridge tenders and Department maintenance vehicles; currently, they also are utilized by fishermen and others recreating on the Existing Bridge. Neither the cities of St. Petersburg nor St. Pete Beach provides public parking in the vicinity of the Existing Bridge. Navigation and Shoaling The height of the Replacement Bridge will allow all boats using the Intracoastal Waterway (ICW) with mast heights of less than 65 feet to freely go under the bridge. Large boats currently must wait for the Existing Bridge to open and have to either circle or move forward and backward while waiting for the drawbridge to open. This will not be the case with the proposed bridge. The fenders lining the channel crossing under the proposed bridge will also be widened to 100 feet from the existing 90 feet. The Replacement Bridge also will be higher in places other than the ICW crossing, including 39 feet high near the west end where Mud Key Channel crosses (versus 9 feet under the Existing Bridge). As a result, more boats will be able to pass under the Replacement Bridge in Mud Key Channel than with the Existing Bridge, and fewer will have to use the so-called Entrance Channel paralleling the south side of the bridge between the ICW and Mud Key Channel. In this respect, the Replacement Bridge will improve navigation. Petitioners contend that additional use of Mud Key Channel, coupled with changes in the ability of boaters to see other boats on the opposite side of the bridge will change, will create a navigation hazard and safety concern for boaters, wading fishermen, and occasional swimmers using Mud Key Channel and the Entrance Channel. As for wading fishermen and occasional swimmers, their activities occur mostly to the south of the extreme western end of the bridge, and boats using Mud Key Channel would pass them whether they pass under bridge at Mud Key Channel or pass under at the ICW and use the Entrance Channel to or from Mud Key Channel. The Replacement Bridge will not increase the number of boats passing by them. As for boaters' ability to see, the Existing Bridge is lower, has more but narrower pilings. The higher Replacement Bridge will have fewer pilings but they will be wider, including 22 feet square pile caps 7 feet high at the water line. In terms of boaters' ability to see through the bridge, the Existing Bridge and Replacement Bride have advantages and disadvantages, depending on the particular circumstances and location of the boats, wading fishermen and occasional swimmers in question. It was not proven that the Replacement Bridge, compared to the Existing Bridge, will create navigation hazards and safety concerns. The Replacement Bridge will extend some 70 feet into the Entrance Channel to Mud Key Channel. Currently, the width of the Entrance Channel is 215 feet, narrowing to 130 feet at the junction with Mud Key Channel. The width of Mud Key Channel at some points is only 100 feet. The Replacement Bridge will narrow the Entrance Channel to a minimum width of 145 feet, will not affect the width at the junction with Mud Key Channel, and will not affect the width of Mud Key Channel itself. The currents in this area are felt least within the Entrance Channel. Boats are currently able to pass each other safely in the Intercoastal Waterway and the narrow confines of Mud Key Channel, which are both narrower than the Entrance Channel will be upon completion of the Project. Boats with masts higher than 65 feet will not be able to go under the Replacement Bridge. Petitioner, Michael T. (Ted) Irwin, has a boat with a 90-foot mast (with radio antenna), which he keeps at his residence north of the bridge site. Once the Replacement Bridge is constructed, he will have to either access the Gulf of Mexico by heading north through Johns Pass, or move his boat to another mooring location. Mr. Irwin testified that Johns Pass, while navigable in his boat, is much more difficult and much less desirable for him than going through the drawbridge at the Existing Bridge. There are over 11,000 boat crossings per year by boats with masts too tall to pass under the Existing Bridge. Of these 11,000, Mr. Irwin's boat accounts for 20 to 60 of those crossings. Mr. Irwin testified that there are three or four other boats in the area with masts taller than 65 feet. Even assuming that those boats are kept north of the bridge site, which was not clear from the evidence, there was no evidence as to the extent to which those boat owners would be inconvenienced by having to use Johns Pass, or as to whether they could make suitable alternate arrangements. Clearly, the Replacement Bridge will have some impact on navigation. While the Replacement Bridge will require Mr. Irwin to change his current boating practices, and while the Entrance Channel will be narrower, the impact on navigation in the area will generally be positive. For the vast majority of boaters, boat traffic will move more freely through the area and, at least in some circumstances, with better visibility. With respect to sediment transport or shoaling, the Department introduced evidence in a bridge hydraulics report showing that the Replacement Bridge would not experience scour around the pilings during either a 100- or 500-year storm event. In addition, there was expert testimony that harmful erosion or shoaling would not occur as a result of the Project. Petitioners offered only speculation on the likelihood of erosion or shoaling, candidly admitting that their concern was that such conditions "might" occur. There is an undisputed evidentiary basis to conclude that sediment transport or shoaling will not occur around the Replacement Bridge. Fishing and Recreation People currently fish from the Existing Bridge using the two three-foot wide catwalks. Although not designated for public parking, people who do not live within walking distance of the bridge site currently park on either end of the Existing Bridge within the Department's right-of-way. All of these parking spaces will be eliminated by the Replacement Bridge; but they would be eliminated under all designs considered, including a low level drawbridge. Other bridges in immediate vicinity are not used for fishing due to lack of nearby parking. Fishing will be allowed from the Replacement Bridge from the single 11-foot wide multi-use path along the south side of the Replacement Bridge. While the multi-use path will allow fishermen and other users to get farther away from passing car traffic, fishing on strong incoming (south-to- north) tides will be less desirable from the south side of the Replacement Bridge, and the higher bridge elevations also will make fishing generally less desirable. There are several other locations within 20 minutes of the Existing Bridge that are available for fishing by the public. In particular, the fishing pier at the old Skyway Bridge in southern Pinellas County is specifically designated for public fishing, as are several other locations. The Replacement Bridge's multi-use path also will be more user-friendly for people who want to walk or bike across. Also, the path will continue from the bridge site to the intersection of State Roads 679 and 652, providing a safe sidewalk where none currently exists. The path will ultimately tie into a trail system linking the area to Fort DeSoto Park. The Replacement Bridge will also be more wheelchair accessible than the Existing Bridge. Water Quality Boca Ciega Bay is an Outstanding Florida Water. The ambient existing water quality in Boca Ciega Bay meets the standards which are applicable to that waterbody in the location of the Replacement Bridge, as demonstrated by the water quality data gathered from Pinellas County and by the Department. Such data were comprised of dissolved oxygen readings from the County and the analysis of water samples provided by the Department. Petitioners questioned whether such water quality data were sufficient, but testimony from District experts demonstrated the sufficiency of these data. Petitioners introduced no evidence to indicate that water quality does not meet standards in the vicinity of the Project. Within the limits of the Project, including the bridge site, the western approach to the bridge, and State Road 679 to the intersection of State Road 652 of the eastern side of the bridge site, there currently is a very limited amount of surface water runoff treatment. Although the project will involve adding several acres of impervious surface, after construction there will be less untreated surface water runoff than exists currently. The proposed treatment system will primarily involve three ponds: two lined effluent filtration ponds along State Road 679; and a wet detention pond located adjacent to the Sunshine Skyway Bridge, known as the compensation pond. The compensation pond is proposed because there is not enough right-of-way in the project area to build ponds or other treatment systems to treat the runoff from the Replacement Bridge. The compensation pond will treat surface water runoff from the Skyway Bridge that today is discharged untreated into the same Outstanding Florida Water, Boca Ciega Bay. The two effluent filtration ponds will be lined with an impermeable material up to the level of seasonal high ground water elevations within the vicinity of those pond sites to prevent groundwater drawdown and prevent interaction between water in the pond and groundwater. DOT introduced detailed site plans, engineering studies and credible expert engineering testimony that the three stormwater treatment ponds will detain stormwater runoff in a manner that complies with the presumptive criteria in the District's Basis of Review. In addition, the two effluent filtration ponds have been oversized so as to treat 100 percent more volume than is required for treatment systems discharging into Outstanding Florida Waters. Less untreated surface water runoff will be discharging into Boca Ciega Bay after construction than is today. Further, much of the impervious area to be added will not be automobile travel lanes, and these areas will not generate the heavy pollutant loadings associated with the travel lanes. In addition, the pollutant loading from the travel lanes on Replacement Bridge will be less than from the Existing Bridge. At the Existing Bridge, pollutant discharge into Boca Ciega Bay occurs in several ways. First, oils and greases from the actual drawbridge mechanism itself drip straight down into the Bay. With the elimination of the drawbridge, this discharge will stop. Second, stopped cars and trucks waiting for the drawbridge to open and close drip oils and greases onto the roadway in greater concentrations than traffic which is moving. This was evident by examining photographs of the travel lanes on either side of the drawbridge, and the dark staining of the roadway where traffic is stopped. With no drawbridge to stop traffic, less oil and grease will be discharged. Third, boats waiting for the existing drawbridge to open also discharge undetermined amounts of uncombusted gasoline and oil into the water. (Generally, their engines are kept running and in and out of gear to maintain steerage while waiting for the bridge to open.) Those boat engines will have to run for less time in the vicinity of the Project if the boats do not have to wait for the existing drawbridge, thus reducing the discharge of uncombusted gasoline and oil into the Bay. Another boost to water quality will occur as a result of the mitigation for the Project. District rules allow impacts to wetlands and other surface waters to be mitigated, and the Department does so in accordance with the program set forth in Section 373.4137, Florida Statutes. That program calls for the Department to contribute a dollar amount to the District based upon the expected acres of wetlands and other surface waters impacted by the project. Mitigation provided for this purpose in accordance with Section 373.4137, Florida Statutes, and approved by the Secretary of DEP, is deemed to satisfy mitigation requirements. In this case, the mitigation project to compensate for impacts by the Replacement Bridge to sea grass beds within the affected surface waters is a water circulation project at Fort DeSoto Park, located at the southern end of Boca Ciega Bay, in the same receiving waters where the impacts will occur. The project consists of opening a dead-end section of the Bay created by the SR 679 causeway to Fort DeSoto Park to improve water flow. Improved water flow will improve dissolved oxygen levels, which in turn will improve conditions for sea grasses, which will in turn lead to more dissolved oxygen. This Project has been approved by separate final order by DEP, satisfying the mitigation requirement. In addition, the Department and the District demonstrated that the mitigation project will improve water quality in the receiving waters. The Project will not degrade water quality in Boca Ciega Bay, and the record is also clear that the Project will actually improve water quality in the Bay. This means that the Project is consistent with the Surface Water Improvement Management Plan adopted by the District, which calls for improved water quality and increased sea grasses. Petitioners called no witnesses with respect to the water quality issue. Although Petitioners listed a water quality expert, James Shirk, as a witness in answers to interrogatories, and even though Respondents deposed Mr. Shirk; Petitioners not only decided not to call Mr. Shirk as a witness, they objected to introduction of Mr. Shirk's deposition into the record of the case. In their PRO, Petitioners criticized a lack of studies to determine the efficacy of proposed Ponds 1 and 2 and the Compensation Pond. They also criticized a lack of studies of water quality impacts of untreated discharges from a 18-inch pipe to be constructed at the western end of the bridge. They argue that, due to the asserted lack of studies, reasonable assurances were not given either that the Project will not degrade water quality or that it will result in a net improvement in water quality. But, based on the evidence in this case, studies of the kind Petitioners want to require were not necessary to prove that the Project will not degrade water quality but rather will result in a net improvement in water quality. In their PRO, Petitioners also cited the deposition testimony of Jeremy Craft that Ponds 1 and 2 discharge into Class III waters "in the vicinity of a Class II water body" and criticized the lack of a "plan or procedure with respect to protection of the Class II waterbody that demonstrates that the regulated activity will not have a negative impact and will [not] result in violations of water quality standards in such Class II waters, as required in the District's Basis of Review [BOR] Section 3.2.5(b)." But there was no other evidence that Ponds 1 and 2 will be a "regulated activity" or "system" that is "adjacent or in close proximity to Class II waters." To the contrary, the evidence that the nearest Class II waters were over a mile away from the Project site and would not be affected negatively by the Project. Similarly, Petitioners in their PRO contend that the Compensation Pond "discharges to Class II waters and waters that are prohibited for shellfish harvesting" and that "[t]here has been no plan or procedure provided with respect to protection of that Class II waterbody that demonstrates that the regulated activity will not have a negative impact on Class II waters and will not result in violations of water quality standards in such Class II waters, as required in the BOR Section 3.2.5(a) and (b)." The basis cited for this criticism was reference to "Shellfish Harvesting Area Classification Map #42 (Effective: June 18, 1997)," that appears to show the Compensation Pond adjacent to or in close proximity to an area where shell fishing is prohibited. There was no testimony explaining the map, which did not purport to map Class II waters. In any event, if the Compensation Pond is "adjacent or in close proximity" to Class II waters which are not approved for shellfish harvesting, and if it is considered to be the "regulated activity" or "system," creation of the Compensation Pond to treat previously untreated discharges will not have a negative effect on Class II waters or result in violations of water quality standards in the Class II waters. Petitioners in their PRO also cite the Final Roadway Soil Survey and Stormwater Pond Report (Report) prepared by the Department's consultants for the purpose of establishing the fact: "Groundwater data beneath the roadway near the east end of Pond 2 indicate that the seasonal high groundwater table is between 4.0 and 4.5 feet, NGVD." Although never made explicit, Petitioners' PRO seems to raise the specter that the liner for this pond was deficient because it only came up to 2.5 feet, NGVD. No witness explained where the Report establishes the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2," or if it even does. It appears that Sheet 9 of Appendix B of the Report indicates a single datum point of groundwater at approximately 4.0 feet, NGVD, on June 1, 2002; meanwhile, Table 4 of Appendix A of the Report also states that the "Estimated Seasonal High Groundwater Table" at the same location is at the "Approximate Elevation" of 1.2 feet, NGVD. In any event, even assuming that the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2" were 4.5 feet, NGVD, all of the expert testimony on the subject of the liner was that it came up high enough to function properly in the location of Pond 2. The last water quality issue raised in Petitioners' PRO addresses the amount of impervious surface runoff treated under the Replacement Bridge Project. Specifically, Petitioners seem to contend that BOR 5.8(b) was interpreted to only require treatment of the runoff contributed by the two additional automobile travel lanes provided by the Replacement Bridge Project; the area of the existing travel lanes and the multi-use path was not figured in the calculation. While not clearly explained, the expert testimony was that the Project met the requirements for water quality treatment under both BOR 5.2.e. and BOR 5.8(b) and (c). BOR 5.2.e. requires projects discharging into Outstanding Florida Waters to provide treatment for a volume 50 percent more than otherwise required for the selected treatment system. BOR 5.8(b)1. requires that, for "off-line treatment systems and on-line treatment systems . . . which provide storage of the treatment volume off-line from the primary conveyance path of flood discharges," the contributing area to be used in calculating the required treatment volume is the area of new pavement. It appears that BOR 5.8(b)1. was used for the parts of the Project not treated by Ponds 1 and 2. The "area of new pavement" was considered, for purposes of BOR 5.8(b)1. to be just the new travel lanes; the area of the multi-use path apparently was not added for purposes of BOR 5.8(b)1. because it would not be expected to add much, if any, pollutant loading. In addition, BOR 5.8(c) provides: When alterations involve extreme hardship, in order to provide direct treatment of new project area, the District will consider proposals to satisfy the overall public interest that shall include equivalent treatment of alternate existing pavement areas to achieve the required pollution abatement. While also not clearly explained, the expert testimony was that BOR 5.8(c) also applied and was met by the Project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the application of the Florida Department of Transportation for Individual Environmental Resource Permit No. 43023532.000. DONE AND ENTERED this 25th day of November, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2003. COPIES FURNISHED: Robert C. Downie II, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 William D. Preston, Esquire 2937 Kerry Forest Parkway Suite B-1 Tallahassee, Florida 32309-6825 Steve Rushing, Esquire David C. Ryder, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue At issue is whether respondent committed the offense alleged in the administrative complaint and, if so, what penalty should be imposed.
Findings Of Fact The Parties Petitioner, Department of Business and Professional Regulation, is a state governmental licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 489, Florida Statutes, relating to contracting. Respondent, Richard Nelson, whose last known address was 15201 Southwest 112 Avenue, Miami, Florida 33157, is not now and was not at any time pertinent to this case, registered or certified to engage in the business of contracting, as required by Chapter 489, Florida Statutes. On or about April 12, 1993, respondent, on behalf of Nelson Development Company, Inc., whose address was stated to be 15201 Southwest 112 Avenue, Miami, Florida 33157, contracted with Vera B. Selmore to reroof and repair damage occasioned to her single family residence, at 8200 Southwest 140 Avenue, Miami, Florida, by Hurricane Andrew. Nelson Development Company, Inc., was not, at any time pertinent to this case, qualified to engage in contracting, as required by Chapter 489, Florida Statutes. The contracted price under the aforesaid construction contract, including change orders, was $23,160, of which respondent received $18,327.19. At some time between April 12, 1993 and May 9, 1993, construction commenced under the aforesaid contract, and continued sporadically and unsatisfactorily, as evidenced by poor and incomplete work, until March 3, 1994, when petitioner served respondent with a notice to cease and desist the "unlicensed and illegal practice of contracting."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the offense set forth in the administrative complaint, and imposing an administrative penalty of $5,000 for such violation. DONE AND ENTERED this 11th day of June, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, 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 June, 1996. COPIES FURNISHED: Donna Bass, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mr. Richard Nelson 15201 Southwest 112th Avenue Miami, Florida 33157 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether the Respondent, a licensed general contractor, committed the offenses alleged in the three administrative complaints and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent has been licensed as a general contractor by the Petitioner. Respondent was issued license number CG C010162 in 1975 and has held that licensure ever since. The first complaint against Respondent’s licensure, like the three complaints at issue in this proceeding, arose from a post-Hurricane Andrew contract. That complaint was resolved by stipulation of the parties. Respondent did not admit to wrongdoing in his stipulation. Respondent was financially unable to comply with the terms of the settlement. Consequently, his license was suspended at the time of the formal hearing. There was no explanation as to why this complaint, which occurred at approximately the same time as the three contracts at issue in this proceeding, was prosecuted separately. At all times pertinent to this proceeding, Respondent was the qualifier for Allstate Construction Management, Inc. (Allstate), a Florida corporation. THE RODRIGUEZ CONTRACT (DOAH CASE 96-4580) On March 17, 1993, Allstate entered into a contract with Anthony Rodriguez to build a garage at 15525 SW 209th Avenue, Miami, Florida. The contract price was $16,250.00, which included “plans, permit and cleanup.” Allstate was paid the sum of $4,062.50 on March 17, 1993. Allstate obtained the Dade County building permit for the project on March 26, 1993. Allstate was paid the sum of $5,593.75 on April 5, 1993, after the concrete blocks were installed. On April 8, 1993, Allstate requested a tie beam/reinforcing inspection from the Dade County building department. In response to that request, Antonio Varona inspected the project on April 12, 1993. The inspector noted that the project was not ready for inspection because no truss plans were available. Respondent testified, credibly, that he had to construct the roof conventionally because of the difficulty in obtaining pre-fabricated trusses; however, that testimony does not explain why there were no truss plans available for inspection. Appropriately engineered truss plans are required for a roof to pass inspection. Despite the failure of the project to pass inspection, Mr. Rodriguez accepted the roof and paid Allstate $4,968.75 on May 21, 1993. As of May 21, 1993, there remained a final payment of $1,625 on the contract. After May 21, 1993, Respondent and Allstate left the Rodriguez job. There was a dispute in the evidence as to whether Mr. Rodriguez fired Allstate or whether Allstate abandoned the project. This dispute is resolved by finding that the evidence was insufficient to establish by clear and convincing evidence that Allstate abandoned the Rodriguez project. When Allstate left the Rodriguez job, there were sufficient funds remaining unpaid to complete the project. Because he had obtained the initial building permit, it was incumbent upon Respondent to either obtain a final inspection of the project or notify the building department that his company had been terminated by the owner. Respondent did neither. THE ELLIS CONTRACT (DOAH CASE 96-4581) At the times pertinent to this proceeding, William R. Ellis owned the Arleen House, which is an apartment building located at 2191 N.E. 168th Street, North Miami Beach, Florida. This building suffered damages from Hurricane Andrew. On September 11, 1992, Respondent and Mr. Ellis inspected the building and Respondent prepared an estimate as to the items that had been damaged by the hurricane and other non-hurricane related repairs that should be made. The mansard roof for this building had been damaged by Hurricane Andrew to the extent that it contained gaping holes. Shortly after that inspection, Mr. Ellis met with his insurance adjuster who gave him a check in the amount of $13,000 to repair the roof. It was necessary to dry in the roof and repair the mansard as soon as possible to avoid additional damage to the building from rains. While there was a dispute as to the extent of the services Allstate was to provide Mr. Ellis, the record is clear that Respondent, on behalf of Allstate, agreed to undertake the roof repair for the sum of $13,000. Respondent told Mr. Ellis that his company had a roofing crew ready to begin work on the roof repairs as soon as Mr. Ellis paid the sum of $13,000. Between September 11 and September 15, 1992, Mr. Ellis gave Allstate a check in the amount of $13,000 with the understanding that the check he had received from the insurance company had to clear before his bank would honor the check he was giving to Allstate. Immediately thereafter1 Allstate sent a roofing crew to the project for the purpose of temporarily covering exposed areas. Despite having been told by Mr. Ellis that the check he was giving Allstate would not be good until after the check for the insurance proceeds had cleared, Allstate did not wait to deposit Mr. Ellis’ check. Respondent was promptly notified that the check Mr. Ellis had given him would not be honored by Mr. Ellis’ bank. Respondent immediately thereafter withdrew the roofing crew from the project. The roofing crew had made only minor repairs at the time they were withdrawn from the project. Respondent knew, or should have known, that the building was vulnerable to further damage from rain. On September 15, 1992, Mr. Ellis gave Respondent a second check in the amount of $13,000. This check cleared the banking process on September 18, 1992. Mr. Ellis made repeated efforts to have Allstate send a crew to repair the roof. After it withdrew the crew that had been sent to the property when Allstate received the first check, Allstate did not take action to protect the property by repairing the exposed areas of the roof. Towards the end of September 1992, a heavy rainstorm caused additional damages to Mr. Ellis’ building. Allstate did not send a crew to the project again until October 6, 1992. Mr. Ellis hired this crew away from Allstate. He testified he did so because the crew complained about Allstate not paying for the materials they were using to repair the roof and because the workmen were threatening to file liens against the property. Mr. Ellis paid this crew the sum of $3,400 to temporarily repair the roof. He then entered into a contract with another contractor to complete the roofing repairs for the sum of $17,500. Mr. Ellis demanded the return of the $13,000 he paid to Allstate, but, as of the time of the formal hearing, he had not been repaid. THE KUCHENBACKER CONTRACT (DOAH CASE 96-4582) On November 6, 1992, Allstate entered into a contract with Carl F. Kuchenbacker to repair his residence at 18500 SW 88th Road, Miami, Florida. Mr. Kuchenbacker’s residence had been damaged by Hurricane Andrew. The initial contract price was $33,375.00. Respondent secured the building permit and Allstate began work on the project. During the course of the work, additional work was added to the contract, which raised the total contract price to $38,015.00. In late February or early March, 1993, Allstate abandoned the project without just cause and without notice to the owner. At the time it abandoned the project, Allstate had been paid the sum of $26,620.00. Allstate failed to pay all of the subcontractors and materialmen who had performed work or provided material for the Kuchenbacker job. As a result of that failure, valid liens were recorded against Mr. Kuchenbacker’s property. The following liens were recorded: Rite-Way Plumbing and Plastery, Inc. in the amount of $3,520.00; Commercial Lighting and Maintenance, Inc., in the amount of $1,835.00; and Scott Bornstein Plumbing, Inc., in the amount of $798.00. Allstate had received sufficient funds from the owner to pay these liens, but neither Respondent nor Allstate paid these liens. Mr. Kuchenbacker and Petitioner’s expert witness testified that the value of the work performed by Allstate before it abandoned the job was $21,000.00. Mr. Kuchenbacker also testified as to the items that remained undone and as to the percentage of the work that had been completed. From that testimony and from the testimony as to the estimated costs of completing the job, it is found that the sum of $11,395.00, which was the difference between the total contract price and the total amount that was paid to Allstate, was sufficient to complete the project and pay off the liens on the property. Respondent did not call for a final inspection of the property and he did not advise the Dade County Building Department that he was abandoning the project. Allstate abandoned the Kuchenbacker project because it went out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Petitioner impose fines totaling $5,000 against Respondent’s licensure as follows: For the violation established by Count I of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count II of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count IV of DOAH Case 96-4580, an administrative fine in the amount of $250. For the violation established by DOAH Case 96-4581, an administrative fine in the amount of $500. For the violation established by Count I of DOAH Case 96-4582, an administrative fine in the amount of $750. For the violation established by Count II of DOAH Case 96-4582, an administrative fine in the amount of $2,000. For the violation established by Count III of DOAH Case 96-4582, an administrative fine in the amount of $500. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found in DOAH Case 96-4581, Respondent’s licensure be suspended for two years. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found DOAH Case 96-4582, Respondent’s licensure be suspended for two years, to run concurrently with the suspension recommended for DOAH Case 96- 4581. DONE AND ENTERED this 23rd day of May, 1997, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 23rd day of May, 1997
The Issue The issue in this proceeding is whether Respondent's engineering license should be disciplined for alleged violations of Chapter 471, Florida Statutes.
Findings Of Fact Michael V. Carr, P.E. is a licensed professional engineer in the State of Florida, holding license number PE0026675. He has been engaged in the practice of engineering for more than 15 years. Mr. Carr's area of expertise is in civil and structural engineering. He is not experienced in electrical or mechanical engineering. In 1989, Mr. Carr was employed as a full-time engineer and construction project manager by a local development and construction company. He also operated, on a part-time basis, an engineering business. The purpose of his part-time business was to offer engineering services to people who are experienced in the construction industry or are working with someone who is experienced in the construction industry and have to varying degrees developed their own plans. Respondent also would serve as the construction manager on those projects. During 1989, Respondent performed engineering services on four buildings owned by four different owners. All four buildings, involved relatively simple construction. Three of the buildings, Dr. Zummarraga's office, the Raulerson/Liberty National building, and Bay Podiatry Center, were designs comparable to residential structures. The Eleventh Street Office Park, while a larger structure, was a shell building and a simple structure, as well. Respondent was not retained to provide engineering for the construction of the interior of the Eleventh Street Office Park. In regards to all four buildings, the Respondent was not retained to provide plumbing, electrical or mechanical engineering services. Those items were left to the respective trades involved in the construction of the project. The limited plans submitted for the plumbing, electrical and mechanical aspects of the four buildings met the standard of practice in the Bay County area and were sufficiently complete for the various trades to perform its respective part of each project. Moreover, the simplicity of the construction plans for these four buildings meant that standard construction methods are provided in the Standard Building Code and/or are known in the industry. Such standard construction methods include detail on roof systems, spacing and connections, as well as live load requirements. Therefore, not as much detail needed to be provided on the plans for these projects. It was standard engineering practice in the Bay County area not to include such detail if it was adequately covered in the building code. In each instance, the owners of the buildings contacted Respondent to perform limited engineering services and to act as the construction manager on each project. Except for Mr. Raulerson, each owner had, prior to the time Respondent was hired, worked out some rough plans with a person qualified to create such plans and had a general idea of what type of building they wanted. Mr. Raulerson had drafted a fairly complete set of building plans. The goal of each owner of the four projects was to obtain a set of plans from what the owner already had developed which would at least minimally meet the local building code requirements sufficiently to allow a building permit to be issued for the construction project. In each instance, the Respondent's plans were submitted to the local building code enforcement agency which reviewed and accepted the plans. A building permit was issued for each building project. During the construction of each building, Respondent provided engineering inspections on each project. The plans submitted to the Bay County building department were not as-built plans and were never intended to be 100% complete plans since several of the owners had not made final decisions on a number of details such as roof line or plumbing facilities. 1/ Such open-ended plans were justified by the specific circumstances of each case and the professional judgment of Respondent, especially since Respondent acted as the project manager of the construction project. For purposes of clarity the facts and circumstances surrounding each building and any violations of Chapter 471, Florida Statutes, in regards to each building will be outlined individually. No alleged violations of Chapter 471, Florida Statutes, were established by the evidence unless it is specifically noted below. Zummarraga Building The plans for the Zummarraga building were signed and sealed by Respondent on October 24, 1989. Dr. Zummarraga had contacted Rich Koehnemann of Koehnemann Construction Company to build an office building for him. Mr. Koehnemann sent the doctor to Jeff Robinson, a draftsman in the Bay County area, to work up a draft of the office plans the doctor desired. The doctor or Mr. Koehnemann gave Mr. Robinson a rough sketch of the office building. Mr. Robinson informed the doctor that a structural engineer would have to be involved since the County would require the plans to have the signature and seal of an architect or engineer in order to obtain a building permit. At that point, Respondent was retained to help develop a set of plans for Dr. Zummarraga. Mr. Carr was hired to draft plans for an office building. He was not hired by Dr. Zummarraga to design a building for a specific site. Therefore, no substantial site information, site work, grading or contouring details were provided on the plans for the Zummarraga project. By passing drafts of plans back and fort, a set of plans was devised by Mr. Robinson under the direct supervision and control of Respondent. Therefore, Respondent is not guilty of improperly affixing his seal to the plans for the Zummarraga project. Later, after the structure's plans were finalized, the contractor determined that a detention pond would have to be designed for the site and a DER permit obtained for the pond. Respondent was retained to design a detention pond for the site and worked with DER to meet its extensive permitting requirements for such a pond. See Chapter 17-4, 17-25 and 17-512, Florida Administrative Code. That design was submitted to DER and a permit was issued for the detention pond. The original unsealed set of plans was amended for the building department. The specific details of the more rigid DER requirements, such as site work, grading and contouring, were not included on the plans filed with the building department and the owner did not contract with Respondent to include redundant detail on the building department's plans. Essentially, the building department's plans reflected the location of the detention pond and the area of the wetlands on the property which were subject to DER jurisdiction. Additionally, the plans contained some specifications which guided the contractor on pond requirements and in grading and contouring the site. These notes in conjunction with the DER permit requirements were sufficient to accomplish the building of the detention pond. Therefore, the desire of the owner and the avoidance of unnecessarily redundant detail between the DER permit and the building department's plans justified the lack of any extensive site work detail on the building department's set of plans for the Zummarraga project. The plans devised by Mr. Carr did not contain any architectural work which was not incidental to the engineering work he performed. 2/ Therefore, Respondent is not guilty of improperly affixing his seal to plans depicting work outside his field or of practicing outside of his field. In every instance, the plans of Dr. Zummarraga's office building were of sufficient detail to meet the building department's requirements for the issuance of a building permit, to allow the contractor to construct the project according to the Standard Building Code and to obtain a certificate of occupancy from the building department. Obviously, on these facts, the plans met the standard of practice in the community for the engineering services Respondent was hired to perform. Moreover, the lack of code related, electrical or mechanical details was justified under the facts and circumstances of the Zummarraga project and it was well within the professional judgment of the Respondent to omit such details given the standards of practice in the Bay County area. Raulerson/Liberty National Building The plans for the Raulerson/Liberty National building were signed and sealed by Respondent on July 31, 1989. Mr. Raulerson is an experienced developer in the Bay County area and acts as a general contractor on his own projects. Prior to hiring Respondent, Mr. Raulerson had been working with a local draftsman and Liberty National's architect to create a set of plans for the construction of Liberty National's office building in Bay County. Mr. Raulerson contacted Respondent on the advice of Bayne Collins, a local architect. Mr. Collins advised Mr. Raulerson that his plans were complete and all he needed was an engineer to check the wind loads. 3/ Mr. Raulerson gave Respondent the plans he had developed in conjunction with Liberty National's architect. Mr. Raulerson asked Mr. Carr to go through the plans and do a structural analysis to make sure that wind load requirements were met, that the building was structurally sound and that the building met the requirements for issuance of a building permit. Mr. Carr reviewed the plans and determined that they were an excellent set of plans for a very simple, sound and over-designed structure. He calculated the wind loads for the building and completed a structural analysis of the building. He also made one minor correction to the plans. Mr. Carr thought it ridiculous to put Mr. Raulerson to the expense of copying the Liberty National plans and essentially adopted the plans as his own. In this case, the fact that the plans were not drawn under Respondent's supervision is immaterial since the specific circumstances of the project did not call for such supervision in that the plans were drafted by experienced individuals. The plans were under Respondent's control at the point in time he was hired by Mr. Raulerson and the plans submitted to him for his review and approval, disapproval or amendment. Since copying the plans would be an unnecessary duplication of effort and Respondent did in fact exercise control over the plans by reviewing them before he affixed his seal to them, Respondent is not guilty of improperly affixing his seal to construction plans. The Raulerson/Liberty National plans did not contain any architectural work which was not incidental to the engineering services he performed. Anything in the plans which may be construed as "architectural work" was requested and specified by the owner to be in the plans. Therefore, Respondent is not guilty of improperly affixing his seal to plans depicting work outside his field or of practicing outside his field. The plans did contain a roofing plan which called for pre-engineered trusses. The detail on the plan simply read "pre-engineered trusses." The plans did not contain any requirements relating to who was to design the pre- engineered trusses or requirements for structural submittals on the trusses. In the Bay county area "pre-engineered trusses" means trusses from Fagans, the local truss manufacturer. It is common knowledge, that Fagan's has a licensed engineer on staff who designs all of its pre-engineered trusses from the plans submitted to him. The pre-engineered trusses all have pre-construction documentation available. Also, submittals for the trusses accompany the trusses at the time of their delivery. With such knowledge, it is unnecessary to specify any more information or requirements regarding the truss manufacture on the Liberty National plans. Similarly it was unnecessary to detail that submittals be given to the engineer since such submittals accompanied the trusses. The absence of any more detail was justified by the specific circumstances of the Liberty National project and well within the professional judgment of the Respondent given the nature of the pre-engineered truss market in the Bay County area and the fact that Respondent was the construction manager on the project. As indicated, Respondent also acted as the construction project manager and would visit the construction site about once a week. At the point in time Mr. Raulerson was going to order the trusses, he decided to change the pitch of the roof, Mr. Raulerson did not advise Mr. Carr of his decision. Mr. Carr discovered Mr. Raulerson's change when he visited the construction site. Fortunately, Respondent had the project file with him. With the project file information and the submittals from the truss manufacturer, Respondent checked the load conditions for the changed pitch. No structural concerns were presented due to the change in pitch of the roof. The Liberty National plans were not amended because Mr. Raulerson did not contract for them to be amended. The plans were not required to be amended under Chapter 471, Florida Statutes. Respondent did not commit any violations of Chapter 471, Florida Statutes, in regards to his actions outlined above. Bay Podiatry Center The plans for the Bay Podiatry Center were signed and sealed by Respondent. However, the date the plans were signed and sealed was not included on the plans. It was inadvertently omitted by Respondent. The absence of the date is a de-minimis violation of Chapter 471, Florida Statues, and does not justify the imposition of any formal penalties. However, Respondent should be given a letter of guidance for the violation. Respondent was not brought into the Bay Podiatry Center project until the final draft of the plans was to be done. Up until that time, Dr. Wilkerson, the owner of the project, had worked up preliminary drafts of the project in conjunction with his contractor and a local draftsman. They had developed a building with an attached carport. Mr. Carr did work directly with the draftsman on the final plan. Therefore, the plans were created under the direct supervision and control of Respondent. Since Respondent supervised and controlled the finalization of the project's plans at the crucial time and since the people involved in drafting the plans did not need more supervision and control, Respondent is not guilty of improperly using his seal. There was no clear and convincing evidence which demonstrated that Respondent performed any architectural work which was not incidental to the engineering services he performed. At the time Dr. Wilkerson desired to begin construction and obtain a building permit, he had not decided on a final roofing system. Therefore, the final plans called for the use of pre-engineered trusses and did not have a great amount of detail on a roof framing plan. There was some detail provided on the page of the plans detailing the wall section of the building. This page provided sufficient detail for a competent contractor to construct the building according to code. In fact, the building was so constructed and a certificate of occupancy was issued for the building upon its completion. Again the trusses would come from Fagans. Petitioner did in fact review submittals from Fagan's truss engineer for the pre-engineered trusses used on the Bay Podiatry Center. Included in those submittals was a roofing plan in which the trusses were numbered to fit the sequence shown in the roofing plan. Respondent made sure the trusses and roof system were structurally sound. However, the owner did not contract with Respondent to amend the building department's plans. Chapter 471, Florida Statutes does not require such an amendment. Given the truss market in the Bay County area, the knowledge of Respondent regarding that market, the fact that a decision regarding a roof line had not been made when the plans were sealed, and that it was appropriate to leave such a decision for later in the construction process, no further detail was required in specifying the roof system for this project. No clear and convincing evidence was presented that demonstrated Respondent was negligent in his specifications on the roof system. The only exception to the above was that Respondent did not specify the material of the trusses over the carport. Such information is not supplied by the Code and therefore must be supplied by the engineer. The oversight was caught by the contractor when he was preparing to order the trusses. The contractor contacted Mr. Carr. Mr. Carr determined what the appropriate truss material should be and informed the contractor. The inadequacy of the plans was resolved in less than ten minutes. The omission of such a detail is negligent on the part of Respondent and is a violation of Chapter 471, Florida Statutes. However, on these facts, the omission of the detail is minor. Most of the light, plumbing and mechanical fixtures were prelocated by the owner prior to the time Respondent was hired. Respondent did not purport to draft plumbing, electrical or mechanical plans in detail in the final plan. Except in one respect, the detail was sufficient to guide the respective trades in the performance of their work and no more detail was required. The only exception was that Respondent approved a special detail of the hub drain/trap primer which was not in accordance to code. Since Respondent provided a special detail which did not meet the code requirements and which was not demonstrated to be justified by the circumstances of the Bay Podiatry project, he is guilty of negligence in the drawing of the Bay Podiatry plans in that aspect. Given the fact that this is a very small error in a larger project and that the drain was put in according to code during the construction of the building, Respondent's violation is a minor one. Finally, the draftsman, without instructions from Respondent, put some plumbing and mechanical notes in the plans which clearly did not relate to the project. Respondent did not catch the inclusion of the notes and sealed the plans with the superfluous notes in them. However, it was obvious that the notes did not relate to the project and the trades involved ignored them. The notes did not cause any problems during the construction and were not shown to be inimical to the public health and safety. Therefore, while the inclusion of the notes was sloppy work, there was no negligence shown on the part of Respondent. Eleventh Street Office Park The plans for the Eleventh Street Office Park were signed and sealed by Respondent on January 31, 1989 The Eleventh Street Office Park project demonstrates best the dynamism involved in an evolving construction project. Often, as with the Eleventh Street project, an owner is not sure of the best method or design (usually determined by lowest cost) to utilize prior to construction or whether he wants to go forward with the expense of construction of a building given certain designs. On the Eleventh Street project three plans were developed, beginning with a three story structure with structural steel and precast walls, and ending with a large, one story, cement block structure on a cement slab. All the plans were for a shell building and did not include any floor plan. Preliminary rough drawings were completed by a draftsman who was hired by the project's owner. Respondent reviewed these rough drafts and over the course of several weeks made numerous structural changes. After the plans were re-drawn to Respondent's satisfaction, he submitted them to the building department in order to obtain a building permit. There is no question that the plans for the Eleventh Street project were drawn under Respondent's direct supervision and control. Therefore, Respondent is not guilty of improperly using his seal. The plans submitted to the building department were not intended to be complete. For instance, the owner had not decided where to locate the restrooms in the building. However, the owner, for unspecified reasons, wanted to proceed with obtaining a building permit. With that decision open, the detail for the plumbing aspects of the plan were not intended to be complete or to match as to specifics. Such limited detail was intended only to place the building department and the contractor on notice that some consideration had to be given to the upcoming plumbing. The same considerations applied to the electrical and mechanical aspects of the plans. All of the evidence concerning deficiencies in the electrical design of the Eleventh Street Office Park was based on Petitioner's expert's review of a single sheet of plans obtained from the building Department. This sheet is mysterious as to its origins and relationship to the Eleventh Street project. The sheet was not prepared by Respondent, did not bear his seal, lacked the fire department's approval which was present on other pages of the project's plans, and was a different size paper than those sealed by Respondent. There was no substantial evidence which demonstrated Respondent had prepared this sheet or that the sheet reflected the electrical plans used in the Eleventh Street project. The absence of extensive detail or the provision of extraneous notes on the electrical, mechanical and plumbing aspects of the plans were justified by the fact that the owner of the project had not made up his mind in regards to those details, such decisions could be determined later in the construction process, the Eleventh Street project was a shell building and there was sufficient detail for the licensed trades to perform their tasks when the time came and the decisions were made. The incompleteness of these plans in that regard was clearly justified by the specific circumstances of the Eleventh Street project. Therefore, Respondent is not guilty of violating Chapter 471, Florida Statutes. As with the Bay Podiatry project, the only exception to the above was that the hub drain/trap primer detail was not in accordance with the building code. For the reasons stated in regards to the Bay Podiatry project, the provision of the hub drain detail constitutes negligence in the practice of engineering in violation of Section 471.033(1)(g), Florida Statutes. Again the violation is a minor one. Similarly, as with the other three projects, no substantial evidence was presented that Respondent performed any architectural services in relation to the Eleventh Street project which were not incidental to the engineering services he performed. There was a great deal of debate among the experts as to the adequacy of the structural aspects of the Eleventh Street Office Park and whether they met the standards of practice for engineers. Most of the debate centered on how much detail needed to be placed on the plans and whether the detail provided was sufficient for a contractor to build a safe building. The better evidence demonstrated that the amount of detail on the plans was sufficient to enable a contractor to build a safe building. The detail which was not contained on the plans was contained in the building code and did not need to be included on the plans. Such a practice comports with the standard of practice in the Bay County area and is a specific circumstance of a project which would enable a professional engineer to exercise his judgment and not include such detail. 4/ Moreover, although the calculations were not contained on the plans, Respondent did, in fact, determine the structural soundness of the Eleventh Street project. Therefore, Respondent is not guilty of violating Section 471.033(1)(g), Florida Statutes. The only exception to the above is that Respondent was negligent in specifying the type of mortar to be used in the concrete walls. In essence Respondent specified three different types of mortars. These mortars significantly differed as to each mortar's respective strength. Use of an improper mortar in the concrete walls can effect the strength of the wall and cause them to be unsafe. This inconsistency in detail or specifications differs from the inconsistency in details or specifications where such details or specifications obviously do not apply to the project or where such details or specifications have no contrary reference in the plans. The latter two cases while showing sloppy work are not necessarily indicative of negligence and depend greatly on the surrounding facts and circumstances before a finding of negligence can be made. The inconsistency with the mortar is indicative of negligence since a contractor may very well use the wrong mortar on a project. In this case, the inconsistency did not become a problem and Respondent was present as the project manager to handle any problem which may have arisen. Therefore, the violation of Chapter 471, Florida Statutes, is moderate to minor.
Recommendation That the Department enter a Final Order finding Respondent guilty of five violations of Chapter 471, Florida Statutes, assessing a total fine of $750.00 and placing the Respondent's license on probation for a period of one year, during which Respondent should be required to take and pass a course or courses on the proper methods of plan drafting for the four violations involving negligence; and issuing a letter of guidance for the violation involving the date. DONE and ENTERED this 22nd day of February, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of February, 1991.
Findings Of Fact Respondent is a registered residential contractor, having been issued license number RR 0032366. On March 29, 1979, Respondent, doing business as Bert Kinast Construction Co., entered into a contract with Gary and Harriet Nelson to construct a residence for the sum of $65,122. On April 15, 1979, Respondent signed an affidavit stating that all bills for materials and labor performed as of that date for the construction of the Nelson residence had been paid. Respondent signed the affidavit for the express purpose of obtaining a draw payment for construction performed and, as a result of the affidavit, did receive a draw payment of $9,765.30. At the time Respondent signed the affidavit, Panama Machinery & Supply Co. was owed $193.98 for material furnished to Respondent for the construction of the Nelson residence. On June 4, 1979, Respondent signed an affidavit stating that all bills for materials and labor performed as of that date for the construction of the Nelson residence had been paid. Respondent signed the affidavit for the purpose of receiving a draw payment for construction performed and, as a result of the affidavit, did receive a draw payment of $22,792.70. At the time Respondent signed the affidavit, he owed Panama Machinery & Supply Co. $1,249.94. During August, 1979, Respondent signed an affidavit stating that all bills for materials and labor performed for the construction of the Nelson residence had been paid. At the time Respondent signed the affidavit, certain materialman and subcontractors who furnished labor and material for the Nelson construction project were not paid, to wit: Panama Machinery & Supply Co., Coastal Insulation, West Florida Natural Gas Company, Culligan Water Services, Inc., Dixie Window Co. and Rachel's Lighting & Home Accessories. Respondent violated Section 1115.7 of the 1979 Edition of the Standard Building Code by not providing adequate head room in the stairwell at the Nelson residence. On or about August 3, 1979, Respondent entered into a contract with John C. and Barbara L. McHaffie to construct a residence for the sum of $105,475. On or about October 11, 1979, Respondent endorsed an instrument, specifically a check, acknowledging that all bills for labor and materials furnished for the McHaffie residence had been paid in full. Respondent endorsed the check to obtain payment for construction he had performed to that date. At the time Respondent signed the check containing that acknowledgment, certain material-men and subcontractors were unpaid, to wit: Buckley's Plumbing, Moore Concrete Products, William Smith and Panama Machinery & Supply Co. On or about November 20, 1979, Respondent endorsed an instrument, specifically a check, acknowledging that all bills for labor and materials furnished for the McHaffie residence had been paid in full. Also on November 20, 1979, Respondent signed an affidavit entitled "Partial Release of Lien on Progress Payment," stating that all bills for labor and materials furnished for the construction of the McHaffie residence were paid in full. Respondent endorsed the check and signed the affidavit in order to obtain a construction draw and did, as a result, obtain the construction draw for labor and materials used in the construction of the McHaffie residence. At the time that Respondent endorsed the check and signed the affidavit, certain materialmen and subcontractors were not paid, to wit: Parker Heating & Cooling, Culligan Water Services, Inc. , Moore Concrete Products, Overhead Door Company of Panama City, Inc., Coastal Insulation, Panama Machinery & Supply Co., G & H Building Materials and William Smith. Respondent received $50,937.50 which was to be used by Respondent to pay for materials and/or labor provided by various materialmen and/or subcontractors for the construction of the McHaffie residence. Certain materialmen and/or subcontractors were not paid from the monies received by Respondent for that purpose, to wit: Parker Heating & Cooling, Culligan Water Services, Inc., Buckley's Plumbing, Moore Concrete Products, Overhead Door Company of Panama City, Inc., Coastal Insulation, Hodges Lumber, Panama Machinery & Supply Co., G & H Building Materials and William Smith. On August 17, 1979, Respondent obtained permit number 5260 from Bay County, Florida, to perform the McHaffie construction. Respondent represented on the application for the above-referenced permit that his estimate of the building costs for the McHaffie residence was $57,250. Since the contract for the McHaffie residence was for $105,475, the price of the building permit would have been nearly $160 more since Bay County charges $3 permit cost per every $1,000 construction cost. During his construction of the McHaffie residence, Respondent violated Sections 1603 and 1706.8(1) of the 1979 Edition of the Standard Building Code in that the concrete floor in some areas was less than three and a half inches thick and caulking or flashing was not installed around the sliding glass doors. On or about November 25, 1981, Respondent was convicted of passing a worthless check, in violation of Section 832.05, Florida Statutes. Respondent's worthless check was given by Respondent to West Building Materials on or about March 25, 1981, as payment for building materials.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding the Respondent guilty of the allegations contained within the Administrative Complaint, suspending Respondent's license as a registered residential contractor; for a period of three years, imposing an administrative fine against Respondent in the amount of $1,000 and placing Respondent on probation for three years upon reinstatement of his license, with the terms and conditions thereof to be set by the Board. DONE and RECOMMENDED this 8th day of March, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 8th day of March, 1983. COPIES FURNISHED: John O. Williams, Esquire J. K. Linnan, Executive Director 547 North Monroe Street, Construction Industry Licensing Suite 204 Board Tallahassee, Florida 32301 Post Office Box 2 Jacksonville, Florida 32201 Mr. Berthold Kinast 1244 Airport Road Panama City, Florida 32401 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent agency, FDOT, filed a Circuit Court eminent domain action to condemn certain property in Tallahassee, Leon County, Florida for the purpose of constructing, reconstructing and maintaining a state transportation facility for the use of the general public, including, but not limited to, rights-of-way, borrow pits, drainage ditches, drainage easements, construction easements and service roads. There is no dispute that this is a federally-funded project. The condemned property included a taking in limited access rights and a temporary construction easement from a larger parcel of commercially developed property, called "Plaza 10", owned by a group of individuals and controlled by William Grow as managing partner. Plaza 10 is located on the northwest corner of Raymond Diehl Road and Capital Circle NE. Petitioners, Furniture Showcase Inc. and Chrysalis Decorative Fabrics, had leased space in buildings located at Plaza 10 where each had profitably operated their respective businesses for at least nine years. An Order of Taking was entered in the eminent domain action on April 27, 1992, and title transferred to the Respondent within twenty days thereof when the sum of $10,000 was deposited in the court registry for the benefit of William Grow and his partners. Petitioners received nothing thereby. There is no dispute that there was a partial acquisition by FDOT of the property upon which Petitioners' respective businesses were located. Petitioners attended several public meetings pertaining to the proposed construction. Plaza 10 had two driveways providing ingress and egress for Plaza 10 onto Raymond Diehl Road, and FDOT's plans included closure of the westernmost driveway. However, Petitioners became aware of the extent of the proposed project and its potential impact on their businesses at a mediation meeting with FDOT held in December 1992 in connection with the eminent domain action. Petitioners could have renewed their leases upon favorable terms at Plaza 10, but on December 28, 1992, Furniture Showcase Inc. notified Plaza 10 that it would not renew its lease. Chrysalis notified Plaza 10 on December 29, 1992 that it would not renew its lease. Both Petitioners gave anticipated loss of business and profitability as their reasons for leaving Plaza 10. Petitioners moved their businesses from their prior location at Plaza 10 in February of 1993, prior to the commencement of any construction, but after surveying had begun. Construction was delayed because FDOT took bids three times and only settled on a contractor sometime in late 1993 or early 1994, at which time construction finally began. Both of Plaza 10's original driveways to Raymond Diehl Road remained open and in use as of the 1994 formal hearing herein. The City of Tallahassee and Leon County posed no impediments to Petitioners continuing in business at Plaza 10, whether or not a driveway is eventually closed. Petitioners filed claims in Circuit Court for business damages arising out of the anticipated loss of business and profitability arising from the loss of previously existing access rights to the lease-hold interest in Plaza 10. The result of this Circuit Court suit are not in evidence. Chrysalis relocated to Betton Place in February 1993, where it continues to conduct business. Furniture Showcase Inc. has moved its remaining business goods to the home of its principals and no longer conducts business, asserting at formal hearing herein that it has yet to find a profitable site for its business. Furniture Showcase Inc. sold solid wood and up-scaled upholstered furniture and was located in Plaza 10 for nine-and-a half years. In the whole of that time, it primarily received its shipments of furniture in full-sized WB- 50 tractor-trailer trucks or "semis," through the western driveway, which FDOT plans to close off. In reaching the decision to vacate Plaza 10 in 1993, Furniture Showcase Inc. concluded that it could no longer operate its business successfully at that location due to the inability to receive its freight, reduction in access, and the concern of its customers in accessing the site. Chrysalis Decorative Fabrics sold furniture, carpeting, decorative fabrics, wallpaper, and interior design items. It was located at Plaza 10 for nine years. It also received freight which was delivered by full-sized tractor- trailer trucks. The operation of its business is dependent upon receiving such deliveries, including but not limited to room-size carpets and fabric in 54 inch long/15 inch diameter rolls. When ordering its merchandise, Chrysalis Decorative Fabrics has no control over how the merchandise will be shipped and delivered by its suppliers or what type of vehicle the suppliers will employ. Usually, its suppliers also utilize "semis". At Plaza 10, these trucks also always used the western driveway. Chrysalis' principal, Arlene Wingate, did an informal poll of her clientele and suppliers and concluded she would lose business due to implementation of the FDOT design plan. Nevins Smith, P.E., was accepted as an expert witness in site planning and civil engineering. He opined, without refutation, that a retail establishment which constitutes a "destination-type" business on the site of Plaza 10 and relies on truck traffic could not stay in business. Businesses fall into two major classifications: "destination-type" and "convenience-type." Both these Petitioners fall in the "destination-type" classification because they attract and cater-to persons who select them before driving to them. Their clientele seek them out intentionally, as opposed to selecting them on the spur of the moment as one might suddenly turn into a "Seven-Eleven" for a bag of potato chips when hunger strikes. A roadside "convenience store" like "Seven-Eleven" is a prototype of a "convenience-type" business. "Destination type" businesses are not aided by increased traffic speed and flow and require as many routes in and out of their establishments as possible so that customers can comfortably and safely come and go from many directions. Mr. Smith also demonstrated effectively that the FDOT plans eliminated all but four of twenty-five customer entrance and egress route options for Petitioners' clientele. By a Final Judgment on Counterclaim entered May 5, 1994, the Circuit Court of Leon County determined in the eminent domain action that the landowners had "lost 84 percent of the accessibility enjoyed prior to the FDOT project and after construction of the project, [the] property is accessible only by a tedious and circuitous route to reach the premises which is patently unsuitable. The FDOT project converts the portion of Raymond Diehl Road abutting the Plaza 10 property from a land service road into a limited access facility. The construction of the unbroken median in front of the subject property extending from Capital Circle N.E. to the intersection of the Cabot Lodge entrance and Raymond Diehl Road constitutes a limited access fence for the specific protection of Interstate 10 (State Road 8) traffic utilizing Raymond Diehl as a limited access ramp. As a result of the condemnation of Plaza 10 and the proposed project, the extended construction of an interstate limited access fence will result in the closure of the westerly driveway connection. The proposed limited access fence will run along the west side of the property from the northwest end of the existing interstate fence, turning east along the south side of the property to a point beyond the existing westerly driveway, thereby closing the driveway connection. There exists no access to Plaza 10 from Capital Circle or the northern or western boundaries of the property. The only access to the property that will exist after completion of the construction project is the single easterly driveway connection. Unrefuted expert testimony established that the intersection of Capital Circle NE and Raymond Diehl Road (SE corner of Plaza 10) is the entrance to a high-speed Interstate 10 on-ramp. The radius of this turn lane allows cars to negotiate the turn onto Raymond Diehl at approximately 25-30 m.p.h. and to accelerate in front of the subject property. The unrefuted testimony of Nevins Smith, P.E., and the Petitioners establishes that the reduction in accessibility to the property will result in a loss of customers, adversely affecting the ability of the Petitioners to operate their business profitably. In addition to the overall reduction in accessibility of customers to the site, the closing of the westerly driveway will also substantially or completely impair the ability of Petitioners' businesses to receive freight deliveries. Full-sized WB-50 "semis" (tractor-trailer trucks) historically have been able to enter the property only through the westerly driveway because the site of the easterly driveway connection and the on-site space available prohibits the necessary turning motion. Petitioners testified without refutation that, based upon their years of experience and expertise in their respective businesses, the combination of the loss of customer access and inability to receive their individualized types of inventory caused them to conclude that continuing at the Plaza 10 location would be committing their businesses to an economic death.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Transportation enter a Final Order be entered finding that the Petitioners, Furniture Showcase, Inc. and Chrysalis Decorative Fabrics, were required to move their businesses from the Plaza 10 site as a direct result of the partial acquisition of real property from the site of the project; that this necessitated move qualifies both Petitioners as "displaced persons" under the applicable law; and that appropriate measures shall be undertaken to establish the amount and reasonableness of Petitioners' respective claims for relocation expenses. RECOMMENDED this 31st day of October, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1994. APPENDIX TO RECOMMENDED ORDER 93-1252 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioners' PFOF: 1-9 Accepted and adopted. 10-12 Accepted, except that unnecessary, subordinate, and/or cumulative material was eliminated. 13-19 Accepted as minimally modified to remove conclusions of law and mere legal argument. 20 Covered in preliminary matters and conclusions of law. Respondent's PFOF: Respondents' proposed findings of fact begin with #6. Paragraphs 1-5 are preliminary matters not requiring a ruling pursuant to Section 120.59(2) F.S. 6-9 Accepted. 10 Rejected upon the greater weight of the evidence; covered within the Recommended Order. 11-15 Accepted. Rejected upon the greater weight of the evidence. See all Findings of Fact related to elimination of the western driveway and impairment of the eastern driveway. Rejected as out of context and immaterial. Although there was considerable testimony on safety factors, safety vel non was not a dispositive issue. Accepted. 19-20 Accepted but utilized only so far as relevant. 21 Accepted. 22-23 Covered under preliminary matters. Rejected as a conclusion of law. Accepted but immaterial. Accepted. Rejected as a conclusion of law. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 John H. Beck, Esquire BECK, SPALLY & BARRIOS 1026 E. Park Avenue Tallahassee, FL 32301 Ben G. Watts, Secretary Department of Transportation Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450
The Issue Whether in making a preliminary decision to award a contract for the subject services under Invitation to Bid No. 12-039T – Refuse Services (the ITB) Respondent School Board of Broward County, Florida (the School Board) acted contrary to a governing statute rule policy or project specification; and if so whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Specifically, Petitioner Ace Waste Services, LLC (Petitioner) challenges the determination that the bids submitted by the apparent low bidder, the apparent low second low bidder, and the apparent low third low bidder were responsive and responsible bids meeting the specifications contained in the ITB.
Findings Of Fact School Board Policy 3320 entitled "Purchasing Policies" is the agency's rule governing the purchasing of goods and services. On October 7, 2011, the School Board issued the ITB which was entitled "Refuse Services." On October 18, 2011, the School Board issued Addendum No. 1 to the ITB. The refuse services were to be provided to 58 district school sites, which were collectively referred to as Group 1. The Bidder Acknowledgement found at Section 1.0 of the ITB states in pertinent part as follows: I agree to complete and unconditional acceptance of this bid all appendices and contents of any Addenda released hereto; I agree to be bound to all specifications terms and conditions contained in this ITB . . .. I agree that this bid cannot be withdrawn within 90 days from due date. Section 3 of the ITB states as follows at General Condition 3(b): MISTAKES: Bidders are expected to examine the specifications delivery schedules bid prices and extensions and all instructions pertaining to supplies and services. Failure to do so will be at Bidder's risk. Section 3 of the ITB states as follows at General Condition 35: PROTESTING OF BID CONDITIONS/SPECIFICATIONS: Any person desiring to protest the conditions/specifications of this Bid/RFP or any Addenda subsequently released thereto shall file a notice of intent to protest in writing within 72 consecutive hours after electronic release of the competitive solicitation or Addendum and shall file a formal written protest with ten calendar days after the date the notice of protest was filed. Saturdays Sundays legal holidays or days during which the school district administration is closed shall be excluded in the computation of the 72 consecutive hours. If the tenth calendar day falls on a Saturday Sunday legal holiday or day during which the school district administration is closed the formal written protest must be received on or before 5:00 p.m. ET of the next calendar day that is not a Saturday Sunday legal holiday or days during which the school district administration is closed. Section 120.57(3)(b) Florida Statutes as currently enacted or as amended from time to time states that "The formal written protest shall state with particularity the facts and law upon which the protest is based." Failure to file a notice of protest or to file a formal written protest within the time prescribed by [section 120.57(3)(b)] or a failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. The failure to post the bond required by School Board Policy 3320 Part VI within the time prescribed by School Board Policy 3320 Part VI as currently enacted or as amended from time to time shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. Notices of protest formal written protests and the bonds required by School Board Policy 3320 Part VI shall be filed at the office of the Director of Supply Management and Logistics 7720 West Oakland Park Boulevard, Suite 323 Sunrise, Florida 33351 (fax 754-321-0936). Fax filing will not be acceptable for the filing of bonds required by School Board Policy 3320 Part VI. Section 3 of the ITB states as follows at General Condition 36: POSTING OF BID RECOMMENDATIONS/TABULATIONS: Any person who files an action protesting an intended decision shall post with the School Board at the time of filing the formal written protest a bond payable to the School Board of Broward County Florida in an amount equal to one percent (1%) of the Board's estimate of the total volume of the contract. The School Board shall provide the estimated contract amount to the vendor within 72 hours excluding Saturdays Sundays legal holidays and other days during which the School Board administration is closed of receipt of notice of intent to protest. The estimated contract amount shall be established on the award recommendation as the "contract award amount." The estimated contract amount is not subject to protest pursuant to [section 120.57(3)]. The bond shall be conditioned upon the payment of all costs which may be adjudged against the protestant in an Administrative Hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond the School Board may accept a cashier's check official bank check or money order in the amount of the bond. If after completion of the Administrative Hearing process and any appellate court proceedings the School Board prevails the School Board shall recover all costs and charges which shall be included in the Final Order or judgment including charges made by the Division of Administrative Hearings but excluding attorney's fees. Upon payment of such costs and charges by the protestant the bond shall be returned. If the protestant prevails then the protestant shall recover from the Board all costs and charges which shall be included in the Final Order or judgment excluding attorney's fees. Section 3 of the ITB states as follows at Special Condition 1: INTRODUCTION AND SCOPE: The School Board of Broward County Florida (hereinafter referred to as "SBBC") desires bids on REFUSE SERVICES for solid waste removal as specified herein. Prices quoted shall include pick up at various schools departments and centers within Broward County Florida. Section 4 of the ITB states as follows at Special Condition 3: AWARD: In order to meet the needs of SBBC Bid shall be awarded in its entirety to one primary and one alternate responsive and responsible Bidders meeting specifications terms and conditions. The lowest Awardee shall be considered the primary vendor and should receive the largest volume of work. Therefore it is necessary to bid on every item in the group and all items (1-58) in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on the Bid Summary Sheet. SBBC reserves the right to procure services from the alternate Awardee if: the lowest Bidder cannot comply with service requirements or specifications; in cases of emergency; it is in the best interest of SBBC. After award of this bid any Awardee who violates any specification term or condition of this bid can be found in default of its contract have its contract canceled be subject to the payment of liquidated damages and be removed from the bid list and not be eligible to do business with this School Board for two years as described in General Conditions 22 and 55. Section 4 of the ITB states as follows at Special Condition 7: ADDING OR DELETING SITES: SBBC may during the term of the contract add or delete service wholly or in part at any SBBC location. When seeking to add a location SBBC shall request a quote from both Awardees. The lowest Bidder shall receive an award for the additional location. If additional service is requested for an existing site already receiving service the current service provider will be contacted to provide a new quote based on the pricing formula submitted in response to this ITB or a subsequent quote. Section 4 of the ITB states as follows at Special Condition 11: RECEPTACLES: The Awardee shall furnish receptacles in good repair. . . .The Awardee shall furnish any and all equipment materials supplies and all other labor and personnel necessary for the performance of its obligations under this contract. Design of all equipment is subject to the approval of the Manager Energy Conservation Utility Management or his designee and must be replaced upon notification without additional cost to SBBC. DESCRIPTION: All receptacles used for solid waste referenced in Group 1 on the Bid Summary Sheets and the Tamarac location listed in Section 5 Additional Information unless otherwise indicated shall be provided by the Awardee at no additional cost. Bin receptacles shall be provided for SBBC use in the cubic yard capacities as indicated on the Bid Summary Sheets. Receptacles shall be bin-type units steel or plastic lift-up lids NO SIDE DOORS unless specifically requested for 8 cu. yd. fitted for automatic loading on casters where necessary for chute operations. (Receptacles not on casters must have a 6" – 12" clearance from ground to bottom of bin for easy cleaning underneath.) TWO AND THREE YARD CONTAINERS: It will be necessary for The Awardee to supply the two (2) and three (3) yard containers to hold compacted refuse at a ratio of approximately 4:1. These containers are designed for front-end loading. THESE UNITS ARE IDENTIFIED ON THE BID SUMMARY SHEET BY A SINGLE ASTERISK (*) NEXT TO THE CONTAINER SIZE. Section 4 of the ITB states as follows at Special Condition 20: SMALL IN-HOUSE COMPACTION UNITS(approximately two yards): The following schools have in-house compaction units which will need to be provided by the Awardee. Waste is compacted at an approximate ratio of 3:1. Collins Elementary Oakridge Elementary Sheridan Hills Elementary Section 4 of the ITB states as follows at Revised Special Condition 14: PRICING – ALL INCLUSIVE COST GROUP 1 ITEMS 1– 58: Bidder shall submit fixed monthly costs where indicated on the Bid Summary Sheets for each location based on 4.33 weeks per month. (This number is derived by dividing 52 weeks by 12 months). Monthly costs stated shall be an all-inclusive cost for providing receptacles refuse removal and disposal including but not limited to all necessary labor services material equipment taxes tariffs franchise fees maintenance and applicable fees. SBBC agrees to pay the Broward County Disposal Adjustment (tipping fees) in effect at the time. Increases to this fee will be paid as assessed by Broward County. Any decreases in these rates shall be passed on to SBBC as well. No bid specification protest was filed by any person concerning the original ITB or Addendum No. 1. Nine companies submitted timely responses to the ITB. Each bidder submitted a monthly bid and an annual bid. The School Board thereafter ranked the respective bids. Intervenor was the apparent low bidder with a monthly bid of $39,576 and an annual bid of $474,918.38. All Service was the apparent second low bidder with a monthly bid of $40,540.90 and an annual bid of $486,490.80. WSI was the apparent third low bidder with a monthly bid of $47,671.71 and an annual bid of $572,060.52. Petitioner was the apparent fourth low bidder with a monthly bid of $50,177.73 and an annual bid of $602,132.76. On November 2, 2011, the School Board's Purchasing Department posted the agency's intended recommendation for award of the ITB. The intended decision was (A) to award to Intervenor as the primary vendor for Group 1 (1 through 58); and (B) to award to All Service as the first alternate for Group 1 (1 through 58). On November 4, 2011, Petitioner timely filed its Notice of Protest with the School Board's Purchasing Department. On November 14, 2011, Petitioner timely filed its Formal Bid Protest with the School Board's Purchasing Department and delivered the required bid protest bond. The School Board formed a Bid Protest Committee that met with Petitioner on December 19, 2011, to consider Petitioner's formal written protest in accordance with section 120.57(3)(d)(1) and School Board Policy 3320. The parties were unable to resolve the protest by mutual agreement and the School Board sent Petitioner a notice of non-resolution of dispute. Section 1 of the ITB precludes a bidder from withdrawing its bid within 90 days of its submission to the School Board. At the time of the formal hearing 106 days had passed since the submission of bids. No bidder, including Intervenor, has indicated that it committed an error in calculating its prices submitted under the ITB or asked the School Board to excuse it from the prices it offered under the ITB. To the contrary, Intervenor's counsel represented at the formal hearing that Intervenor was standing by its bid. Generally, compacted waste is heavier and more expensive to dispose of than non-compacted waste. The ITB identifies the number and size (in cubic yards) of the receptacles to be placed at each location and the number of pick-ups per weeks to occur for each receptacle. The ITB also informs the bidders whether a receptacle was compacted or non-compacted. If compacted the ITB set forth the ratio of compaction. Bidders were also asked to bid a monthly cost and any applicable fees charged by the facility receiving the waste to arrive at total monthly cost for each receptacle to be furnished. The bidders were required to provide a total monthly bid for the services and a total annual bid for the services. The bidders were to use the information set forth in the ITB to calculate their bids. Petitioner asserts that the bids submitted by Intervenor, All Service, and WSI were not responsible bids because those bids failed to factor in the higher costs of disposing of waste that had been compacted. Petitioner contends that the reference to compaction ratios constitute specifications by the School Board to require all bidders to calculate their pricing utilizing the compaction ratios. Petitioner describes the referenced compaction ratios as "multipliers" that needed to be used by the bidders in calculating their prices for handling and disposing of compacted waste. Petitioner is seeking to impose its interpretation of the ITB as requiring each of the bidders to calculate its bid using the same pricing methodology that Petitioner employed. There is no ambiguity in the ITB, and there is no factual basis to conclude that all bidders were required to prepare their bids in the same fashion as Petitioner. There is nothing set forth in the ITB that required the School Board to interpret its reference to the compaction ratios as being a specification of a "multiplier" for pricing as opposed to a description of the capacity of the receptacles to be used at each of the school locations. At no point is the word "multiplier" used in the ITB to specify that the bidders were required to engage in mathematics involving multiplying their prices against some unit price the bidders were specifying in their bids. The ITB specifies the frequency with which the varying container sizes needed to be picked up at each of the 58 schools with the weight or volume of the container not being a factor in setting the specification of how often the container is to be picked up by the awardee. No adjustments were to be made to the prices paid by the School Board based on the weight of the container when removed. The School Board did not specify in the ITB that a bidder was required to charge the same monthly cost at each school for a similarly-sized refuse container nor did the School Board require different pricing for compacted waste as compared to non-compacted waste. Petitioner's assertion that the bidders were required to use those ratios as a multiplier when bidding on the cost of disposing of compacted waste is rejected as being contrary to the plain language of the ITB. The compaction ratios were provided to the bidders as information only. There is no requirement that a bidder use a particular methodology in determining its bid amounts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Broward County Florida enter a Final Order that adopts the findings of fact and conclusions of law contained herein, dismisses the protest filed by Petitioner Ace Waste Services LLC, and upholds the award of the procurement to Choice as primary awardee and to All Service as alternate awardee. DONE AND ENTERED this 20th day of March 2012, in Tallahassee Leon County Florida. S Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March 2012.
Findings Of Fact Respondent Paul McAllister is a certified general contractor and was the qualifying individual for the firm of Garnett-McAllister Associates, Inc., Fort Lauderdale, Florida, in 1977 and until July, 1978. (Stipulation) On April 8, 1977, Respondent's firm entered into a contract with Ray Borchardt, Westchester, Illinois, for the construction of a four-unit apartment building at Lighthouse Point, Florida. The contract provided for a total price of $139,110.00, payable in five payments or "draws" in various percentages of the contract price at specified stages of construction. However, the contract did not specify a time for performance or completion of the building. It contained a clause stating "Any alteration or deviation from above specifications involving extra costs - will be executed only upon written orders, and will become an extra charge over and above the estimate." Respondent obtained a building permit for the construction of the building from the building official, City of Lighthouse Point, Florida, on May 8, 1977. (Petitioner's Exhibits 1, 2) Prior to the commencement of construction, it was determined that foundation pilings for the building were required and therefore Borchardt sent Respondent the sum of $13,519.65 on June 9, 1977, as an additional sum over and above the contract price. At this time, he also sent the first draw in the amount of $20,866.00 even though such payment was not called for until completion of the foundation and "rough in" of plumbing and electric connections. On August 1, 1977, Borchardt paid the second draw of $20,866.00 although the roof was not on, nor had the beam been poured at the time as called for under the contract. Respondent was delayed approximately three weeks by failure of a supplier to provide the second floor concrete planking. On October 24, 1977, Borchardt paid the third draw in the amount of $34,777.00 although construction was not at the stage called for under the contract. On November 22, 1977, Borchardt paid $18,000.00 of the fourth draw and on January 23, 1978, paid the remaining portion of $16,777.00. At that time, the roof was not completed, tile work had not been started, woodwork was incomplete, and kitchen cabinets and vanities had not been installed pursuant to the terms of the contract. Borchardt had made a number of trips from Illinois to Florida during the construction period and was aware that his various partial payments were made in advance of completion of the several construction phases. He had dealt primarily with Edward J. Garnett, president of Garnett-McAllister Associates, Inc., as to the financial aspects of the project. Respondent primarily was a "field" man in charge of supervising construction. Also, Borchardt's son-in- law, Vincent A. Svegel, had moved to Florida in September, 1977, and acted as Borchardt's contact with Respondent's firm after that time. Both Respondent and Garnett informed Svegel in the fall of 1977 that the building would be completed by December 15. (Testimony of Borchardt, Svegel, Petitioner's Exhibit 1) Although during the early part of 1978, five subcontractor liens were filed against the property for work and materials supplied on the project, three of these liens were eventually paid by Garnett-McAllister and the remaining two totaling over $7,000.00 were eventually paid by Borchardt. One of the latter liens was filed by Pompano Roofing Company, Inc. That firm refused to install the roofing tile until paid and the tile therefore "sat on the roof" for approximately five months. On March 13, 1978, Borchardt filed a complaint with Petitioner based on the fact that the work had not been performed according to the draw schedule and liens had been placed on the property. Borchardt also complained to James P. Simmons, the building official of Lighthouse Point about the project delays and claims of lien. As a result, on March 14, 1978, Simmons referred the complaint to Petitioner because Respondent was certified by the state. Petitioner's local inspector, Wallace Norman, issued a Notice of Violation of Section 468.112(2)(e), F.S., to Respondent on March 15, 1978, for diversion of funds based on the filing of liens by suppliers. In a meeting with Respondent and Garnett, Norman asked for an explanation of the situation. They told him that they had been building a house in Davies, Florida, and had used some of the money that Borchardt had paid them to pay suppliers on that house and they had expected to be able to put the money back into the Borchardt project when they sold and realized a profit on the other house. (Testimony of Borchardt, Svegel, Simmons, Norman, Petitioner's Exhibits 7, 9, 10; Respondent's Exhibit 3) During the period between January and March, 1978, some progress was made toward completing the building, including the rough in of the plumbing and electrical systems, installation of inside lath work, installation of tub and shower stalls, and extension of a kitchen area. As late as April 19, 1978, Respondent accompanied Borchardt to a supplier to purchase windows for the building. (Testimony of Svegel, Respondent, Pet. Ex. 3) On May 29, 1978, Svegel, in behalf of Borchardt, notified building official Simmons that Garnett-McAllister Associates, Inc. had been terminated from any further work on the building due to the fact that the building permit had expired and would not be reissued, and requested authorization to finish the building. Simmons thereafter issued a building permit to complete the building to Borchardt on June 21, 1978. He also instructed his staff not to issue any more permits to Respondent due to his "poor track record" and liens which had been filed against the building under construction. Simmons issued the completion permit under the authority of Section 304.3 of the South Florida Building Code, Broward County Edition, which provided that a building permit expires and becomes null and void if work is abandoned at any time for a period of ninety days. Although Simmons considered that the time limit had elapsed because an inspection had not been called for by the builder for ninety days, he erroneously believed that the last inspection had been on January 4, 1978, when, in fact, the city's inspection records show that the plumbing department had made an inspection of rough plumbing on March 27, 1978. Simmons did not notify Respondent of the issuance of the second permit. He considered that he had inherent authority in his position to prohibit issuance of additional permits to Respondent, but didn't consider his action in this regard to be disciplinary in nature because the City of Lighthouse point does not issue contractor's licenses. Therefore, the matter was referred to Petitioner for any action against Respondent's state certification. (Testimony of Simmons, Svegel, Petitioner's Exhibit 3, 4, 11, Respondent's Exhibit 1) At some time prior to obtaining the permit to complete the building, Borchardt had refused to pay the final draw of $27,824.00 to Garnett-McAllister Associates, Inc. because the firm was so far behind on the job. Garnett had told Borchardt that be was selling another home for $80,000.00 and was going to put some of the money he realized from that sale into the Borchardt project. He wanted Borchardt to loan him $20,000.00 and take back a lien on a boat in order to have money in the interim to work on the building. When Borchardt declined to do so, Garnett told him that he could not complete the job. Borchardt also received a call from Respondent to the effect that he would finish the job on his own for $150.00 a week if Borchardt would pay the remaining costs. Borchardt informed him that he would pay nothing further until the job was completed. Garnett had also told Svegel that he had used some $25,000 to $30,000 of the Borchardt funds to construct the house in Davies and that he would put that money back into the firm's business account to use for the Borchardt building when the house was sold. (Testimony of Borchardt, Svegel, Respondent) At the time Borchardt took over completion of construction, the building was approximately 70-75 percent completed. Borchardt paid an additional sum of about $82,000.00 to complete the building which was some $54,000.00 more than the original contract price. However, about $12,000.00 of this sum constituted changes to the original specifications that had been agreed to by Borchardt during the course of construction. Some of these involved changes due to building code requirements, such as the addition of a ramp for the handicapped. Other changes were made on the recommendation of subcontractors or resulted from requests by Borchardt's daughter and son-in-law who were intending to occupy one of the apartments in the building. None of these changes was reflected in a written change order or supplemental agreement to the contract because Borchardt had agreed to the changes and neither party to the contract apparently considered it necessary to formalize these matters. Additional changes in the sum of some $12,000 were made to the building after Borchardt took over construction. These primarily dealt with carpeting, appliances and the like. (Testimony of Borchardt, Svegel, Simmons, Respondent, Stipulation, Petitioner's Exhibits 5, 8) Respondent testified at the hearing and disclaimed knowledge of the financial affairs of the corporation which he claimed were handled exclusively by Garnett. He denied ever abandoning the project and stated that he was unaware, until June 7, 1978, that Borchardt was taking over the construction project to complete. He acknowledged that funds became a problem about mid- January, 1978, and that he then recognized that the contract price had been set at too low a figure because cost overruns were being experienced. He denied diversion of Borchardt's funds to the Davies house, and claimed that his firm did not purchase supplies for that project. He conceded, however, that the firm had one corporate business account from which suppliers on all jobs were paid. Respondent further testified that when funds for the Borchardt building became scarce, profits from other jobs were used in meeting construction costs on the building. He acknowledged receiving a salary of $8,420.00 during the course of construction and said that Garnett had also drawn a sum of approximately $11,000.00 for himself. (Testimony of Respondent) A review of the books of Garnett-McAllister Associates, Inc. by a certified public accountant indicated that they were not well kept and were frequently in error. The auditor's report reflected that the firm had expended at least $80,675.00 in direct construction costs on the project. Certain cost items could not be verified due to the failure of suppliers to respond to the auditor's inquiry. These accounts were reflected on the books of the firm at a total of approximately $1,000.00. (Testimony of Webb, Respondent's Exhibit 4)
Recommendation That Respondent's certification as a general contractor be suspended for a period of 90 days, but that he be permitted to complete any contracts which are uncompleted at the time suspension is effected. DONE and ENTERED this 25th day of April, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32302 Alan C. Brandt, Jr., Esquire 1040 Bayview Drive Fort Lauderdale, Florida 33304 J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue At issue is whether an order recommending denial of the subject permits and variance should be rendered.
Recommendation Based on the foregoing statement of the case and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue the subject permits and variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29 day of January 1992. WILLIAM J. KENDRICK 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 29 day of January 1992.
The Issue The issue to be determined is whether Destin is entitled to attorney’s fees pursuant to section 120.569(2)(e), from Respondents related to litigation between the parties in DOAH Case No. 19-3356.
Findings Of Fact On November 14, 2016, DEP issued a Permit Modification to the Corps which modified the location upon which spoil from the dredging of East Pass in Destin, Florida could be placed, from being on “a portion of the beach on Eglin Air Force Base (to the west of East Pass),” to “the Gulf-front beaches on the eastern and western sides of East Pass.” The modification deleted language from an original permit that prohibited, with minor exception, placement of dredged material “on any beach east of the Main Channel.” On November 16, 2018, John S. Donovan, David H. Sherry, and Rebecca R. Sherry filed a Petition for Administrative Hearing challenging the Permit Modification, which was referred to DOAH and assigned as DOAH Case No. 19-1915. The Petition in Case No. 19-1915 was dismissed as not being timely filed. A full account of the procedural history of that case is contained in the docket of Case No. 19-1915. On June 5, 2019, Thomas Wilson filed his Petition for Formal Administrative Hearing (Wilson Petition). The Wilson Petition was substantively identical to that filed in Case No. 19-1915. The Wilson Petition was referred to DOAH on June 19, 2019, and assigned as DOAH Case No. 19-3356. On June 28, 2019, David H. Sherry, Rebecca R. Sherry, and John S. Donovan filed a Motion for Leave to Intervene in Case No. 19-3356, which was granted on July 8, 2019. On August 20, 2019, Destin moved to intervene in DOAH Case No. 19-3356, which was granted on August 26, 2019. On August 21, 2019, DEP filed a proposed amendment to the Permit Modification, which changed the condition directing placement of dredged material to “the eastern and western sides of East Pass” to one requiring that “[b]each compatible material dredged from the initial maintenance dredge event following issuance of [the Permit Modification], shall be placed to the east of East Pass” (the Proposed Change). The Proposed Change also extended the term of the Permit. On September 4, 2019, John S. Donovan, David H. Sherry, and Rebecca R. Sherry filed a Petition for Formal Administrative Hearing to challenge the Proposed Change, which was referred to DOAH and assigned as DOAH Case No. 19-4979. On September 20, 2019, Case No. 19-4979 was consolidated with Case No. 20-3356.1 On October 21, 2019, Petitioners filed a First Amended Petition for Formal Administrative Hearing (Amended Petition) to address the August 21, 2019, Proposed Change. On November 5, 2019, the Amended Petition was accepted as filed. On November 15, 2019, Destin filed its Motion for attorney’s fees pursuant to the authority in section 120.569(2)(e). Also on November 15, 2019, Petitioners filed a Second Amended Petition for Formal Administrative Hearing. 2 The final hearing was convened on November 20, 2019, as scheduled. Issues related to the disposition of DOAH Case No. 19-1844 were taken up at the final hearing as a preliminary matter. Case No. 19-1844 involved the issuance of a permit to Destin to perform maintenance dredging of East Pass north of the U.S. Highway 98 bridge, with placement of dredged material to the beaches to the east of East Pass. A Recommended Order had 1 At the commencement of the final hearing, DOAH Case No. 19-4979 was severed, and a written Order Granting Renewed Motion to Dismiss, Relinquishing Jurisdiction, and Closing File was entered on January 29, 2020. Since the May 1, 2020, Renewed Motion was filed only with regard to Case No. 19-3356, further discussion of Case No. 19-4979 is unnecessary. 2 The purpose of the Second Amended Petition was primarily to drop Petitioners’ objection to the extended term of the Permit authorized by the Proposed Change, and is of no consequence to the disposition of this proceeding. been entered on October 14, 2019, which determined that dredged material from the maintenance dredging of East Pass should, to be compliant with section 161.142, Florida Statutes, be placed on adjacent eroding beaches east of the inlet. It also determined that the East Pass IMP is not an unadopted rule as described in section 120.57(1)(e). At the commencement of the final hearing, a Final Order in Case No. 19-1844 had not yet been entered. The substantial similarities in the issues of law and fact between Case No. 19-1844 and this case were discussed, and it was determined that if the Final Order in Case No. 19-1844 substantially adopted the Recommended Order, an Order to Show Cause would be entered, asking the parties to address whether collateral estoppel applied to some or all of the issues in this case. During the pendency of Case No. 19-1844, Destin filed a Motion for Attorney’s Fees, Expenses and Costs pursuant to sections 120.569(2)(e) and 120.595. The Recommended Order in Case No. 19-1844 reserved ruling on Destin’s Motion for Attorney’s Fees, Expenses and Costs under section 120.569(2)(e), “provided [Destin] renews its Motion within 30 days of DEP’s entry of the final order” in Case No. 19-1844. No renewed motion was filed. With regard to section 120.595 fees, the Recommended Order included a “determination” that John S. Donovan, David H. Sherry, and Rebecca R. Sherry did not participate in Case No. 19-1844 “for an improper purpose, i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity…,” and recommended that the motion for attorney’s fees be denied. On November 20, 2019, after the final hearing in Case No. 19-3356 had convened, DEP entered its Final Order in Case No. 19-1844. The Final Order adopted the Recommended Order with minor modifications that are not pertinent here. An Order to Show Cause was issued on November 22, 2019, as to whether disposition of issues in Case No. 19-1844 would collaterally estop the challengers to the Permit in Case No. 19-3356 as to some or all of the issues in that case. It was thereafter determined, for reasons set forth in the Recommended Order in Case No. 19-3356, that Respondents were not estopped from challenging the Corps’ Permit Modification and Proposed Change. The Recommended Order in Case No. 19-3356 was entered on February 20, 2020. The Recommended Order considered the evidence offered by Destin, DEP, and Respondents, primarily expert in nature except for testimony as to standing, and found and concluded that the Corps was entitled to the Permit Modification as modified by the Proposed Change. Destin filed its Renewed Motion as authorized in the Recommended Order, and Respondents filed a Response. On July 27, 2020, oral argument was held on the Motion and Amended Motion as renewed. It was noted by the undersigned during a series of questions that the Motions did not identify a specific “pleading, motion, or other paper” alleged to have been filed for an improper purpose. Counsel for Destin thereupon stated that the pleadings alleged to have been signed for an improper purpose were the June 5, 2019, Wilson Petition, and the October 21, 2019, Amended Petition. No other pleadings, motions, or papers were identified as having been signed for an improper purpose. Thus, the analysis in this Order is limited to those pleadings.
