The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, John William Renner (Respondent) was licensed as a land surveyor in the State of Florida, having been issued license number LS 0004739. Respondent has been a licensed land surveyor since July 13, 1989. The minimum technical standards for surveys are set forth in Rule 21HH- 6, Florida Administrative Code, (Rule) of the Board of Professional Surveyors and Mappers (Petitioner). The Rule sets forth minimum standards which are expected and required of all surveyors. No deviation from the required minimum standards are permitted. A surveyor must first satisfy the minimum technical standards before applying community standards of local custom to a survey. On or about March 30, 1992, Respondent performed a survey of a lot described as: Lot 13, Block 1, Plat I of Sky Lake, according to the plat recorded in Plat Book 39, Pages 133-134, as recorded in the public records of Palm Beach County, Florida. Different surveyors, examining Respondent's survey, would have differing opinions regarding his survey. However, no deviation from the required minimum technical standards is permitted. As part of Petitioner's investigation of Respondent's alleged violations of the Rule, Petitioner requested a copy of the original survey. Respondent had misplaced the original and never complied with Petitioner's request. Petitioner obtained the original survey from the title company. The survey was certified by Respondent with his signature and seal. It is undisputed that Respondent's product is a boundary survey. However, he failed to state on the survey the type of survey that the certified drawing represents. The subdivision in which the Lot is located is platted. The boundary survey plats the Lot. Since the filing of the administrative complaint against him, Respondent has become aware that his surveys must identify the type of survey that his certified drawings represent. Respondent made field notes during the preparation of the survey. Field notes are records of observations and measurements made in the field and support the survey. Also, as part of its investigation, Petitioner requested a copy of Respondent's field notes which contained the measurements that he had made in the field. Respondent could not locate his field notes and was, therefore, unable to produce them; but agreed to produce the field notes when he located them. Respondent failed to maintain his field notes. Prior to hearing, through discovery, Respondent informed Petitioner that he had located his field notes but again failed to produce them to Petitioner. Finally, at hearing, approximately two years after Petitioner's investigative request, Respondent produced his field notes. Respondent's boundary survey provides, among other things, that the "Bearings Are Based On Plat." The plat is not a line; it is a document. Respondent failed to provide the well-established line upon which the bearings are based. Groups of lots within a platted subdivision are controlled by permanent control points (PCP) and permanent reference markers (PRM). The PRMs define the boundaries of a subdivision. The distance between the PCPs is referred to as a record distance which is shown on the subdivision plat of record. After a surveyor locates the PCPs and the PRMs, the surveyor measures the distance from PCP to PCP and from PRM to PRM. The measured distance in the field is compared with the recorded distance. Rarely are the recorded distance and the measured distance the same. In a discrepancy, with the acceptable margin of error, each lot between the PCPs receives its proportionate share of the measurement. Respondent's field notes indicate that he measured from PCP to PCP. However, there is no indication on the survey that he made the measurement. Respondent failed to show on the survey drawing the discrepancy between the recorded distance and the measured distance in the field. The discrepancy is four-hundreths of a foot, which is not significant in and of itself, but is important because the discrepancy adds more that 600 feet to the PCP. The plat of the subdivision indicates a 180 foot wide canal right of way along the west property line of the Lot. It is undisputed that Respondent failed to show the canal right of way on his survey drawing. Respondent's survey drawing indicates a fence along the north property line of the Lot. Nevertheless, it is undisputed that Respondent's dimensions are inadequate and insufficient to show the distance from the fence to the property line, i.e., the proximity of the fence to the property line. Also, Respondent's survey drawing shows three squares drawn along the south side of the residence on the Lot, showing concrete improvements. Even though Respondent's field notes indicate measurements for the squares, his survey drawing fails to identify the squares, as to what they represent, and fails to show their dimensions. As a result, no determination can be made as to whether the concrete improvements may affect property value. A surveyor is given some latitude as to whether a concrete improvement is fixed and pertinent to the survey, and, therefore, deference is given to the surveyor's judgment. Respondent's survey drawing indicates that the concrete improvements are not fixed and not pertinent to the survey. Appearing on Respondent's survey drawing are the three abbreviations BM, C. B. S., and CL, with the C and L intersecting. These abbreviations are not generally used by the public. BM and C. B. S. are not shown in the legend. Even though the abbreviation CL is in the legend, the C and L are not intersecting. A finding is made that the abbreviation CL, with the C and L intersecting, is not included in the survey's legend. Respondent's survey indicates the basis for elevations, referencing that "Elevations Based on County BM CL Old Boynton", with the C and L intersecting. BM is the abbreviation for benchmark. The survey did not describe the benchmark, identify the county or provide the published elevation. Referenced elevations must be based on an established benchmark. If a benchmark is referenced, its description should be sufficient to locate the benchmark and use it. Respondent's benchmark description fails to provide a basis for locating the benchmark or determining its elevation. In June 1992, after attending a minimum technical standards seminar, Respondent responded to allegations made by a Mr. Dennis Painter regarding the survey. 1/ In his response, Respondent agreed with some of the allegations, and, as a result, Respondent indicated that he made the appropriate revisions to the survey. No evidence was presented at hearing regarding the nature of Mr. Painter's allegations, so there was no opportunity to examine Respondent's responses as they relate to the allegations made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Surveyors and Mappers enter a final order: Reprimanding Respondent; Imposing a $500 administrative fine; and Placing Respondent on probation for one (1) year under terms and conditions deemed appropriate by the Board. DONE AND ENTERED this 7th day of February, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings 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 Hearings this 7th day of February, 1997.
Findings Of Fact Sandor Koltay, Petitioner herein, is an electronic repair dealer registrant who holds registration no. 2615. William C. Kimbrel, Electronic Registration Bureau Chief since approximately April 12, 1971, is in charge of overseeing and supervising the Electronic Repair Dealer Registration Division. During early 1972, Kimbrel ordered two colored TV set which were shipped to the Miami Division Office, for use in checking repair dealer registrants who were the subject of complaints from collsumers. Joseph Hytha, an electronic inspector-investigator, working under Kimbrel for the past three years was employed by RCA for approximately 20 years in various positions of responsibility. He also was employed by Teledyne Corporation and supervised as many as 30 technicians. During his employ:nent career as an electronic repairman, he has repaired in excess of approximately 40,000 TV sets. He has been qualified as an expert in the courts of Duval and Volusia counties. Evidence reveals that the Bureau had received some complaints about the quality of workmanship engaged in by the Petitioner and working through tile assistance of the Consumer Affairs Division of Plnellas County, the Respondent used one of the referenced TV sets which was repaiied and marked and given to a citizen to be repaired by the Petitioner. The TV set was marked on the cabinet, chassis, the picture tube and the high voltage cage. Prior to being given to the citizen for repair, the set was initially checked by DivisIon employees Uytha, Stanley T. Crocker, an electronic inspector-investigator and Richard Hughes, a Division employee who is also a certified electronic technician. Crocker removed the tubes from the set and placed them in a cathode-ray tester and Hughes recorded the data with employee Hytha noting and checking all functions (State's Exhibit #3). During the examination by the Division, the filaments were closed and there was continuity in the picture tube. All tubes were marked by a nick on the number one pin for each tube removed from the set. The focus tube was removed from the set and scientifically knocked out to get a "no picture" condition. (State's Exhibit #4) initially, the set was given to Doris Dano, an employee of the Pinellas County Consumer Affairs Division, who called Petitioner to get the TV serviced. The "no picture" condition was shown to a Mr. Richards, who is also a Consumer Affairs employee, prior to the time that the Petitioner was called. John K. Kyle, a Pinellas County resident was given the set since he lived in the service area in which the Petitioner operated. When the TV set was carried to Kyle's apartment, he called the Petitioner who came and examined the set. Kyle explained to Petitioner that "he had no picutre and therefore he probably needed a new picture tube." Koltay examined the set and stated that it required a new tube after an examiniation of approximately 15 to 20 minutes. Kyle was explained his various options and after Petitioner used his phone, he was given several quotes based on estimates that Petitioner had received from two suppliers for various quality and guarantees on picture tubes. The evidence reveals that while examining the set, .the Petitioner commented that the set was dirty and called Kyle ever to the back of the set with the curtains drawn in the apartment to show him that the picture tube was not lighting up and therefore the picture tube was defective. The Petitioner was instructed by Kyle to use the better of the two picture tubes discussed and Petitioner gave him a quote of $210.00. The set was repaired for this price and it was redelivered to Kyle as agreed. Petitioner carried the set to his shop which is located at 3580- 66th Avenue North, in Pinellas Park and replaced the tube with a Grade C (used) Montgomery Ward Airline tube. Prior to installing the new tube, Petitioner testified that he tried to "spark" the tube. After conducting the "spark" test, he was certain that the tube was defective as he had suspected at Kyle's apartment. However, after he installed the new tube, the set still would net play and he checked the focus tube which was replaced. Thereafter the Petitioner made some adjustments to the set and when it was in good operating condition, he phoned Kyle and made an appointment to return the set. Petitioner admitted that he used a "1AV" tube as opposed to a "2AV2" tube inasmuch as the tubes are interchangeable and in fact some manufacturers suggest such a replacement with the original "2AV2" tube malfunctions. Later that day, Deputy Poorbaugh, who assisted in the investigation of the Petitioner beginning sometime around May 19,.1977, executed an affidavit, obtained a warrant and searched the Petitioner's shop after the set was returned to Kyle. Depuy PoorBaugh confiscated the tube which the Petitioner had removed from Kyle's set. The Petitioner had the tube marked "re-do." When questioned by Deputy Poorbaugh, Petitioner told him that he did not use a picture tube tester since his tester was inoperable, however, he had used other comparable tests and that the filament did not light up. Respecting the allegation that the Respondent charged for and applied a cleaning agent to Kyle's VHF tuner, the evidence revelas that Koltay, as a matter of practice cleans all TV tuners since the St. Petersburg area is very humid and cleaning the tuner seems to be a means of preventative maintenance which alleviates future problems. For this service, Petitioner did not charge Kyle a fee. When Deputy Poorbaugh seized the picture tube removed from Kyle's set, it was turned over to the State Attorney's office after it has been transported to the Division Office for a check. Richard Hughes, a certified electronic technician (CET) with approximately 31 years experience in the television repair field, testified that when the tube that had been removed from Kyle's set was checked, it had consistent readings of 11.9 on all three guns. (State's Exhibit #4 composite). Hughes testified that readings on new sets varied from 11.5 to 12. He estimated that based on the 20,000 to 25,000 sets of this type which he has repaired, he never witnessed an intermittent type fi1ament in a set of this type. He further testified on cross-examination that newer TV sets are not easily shaken by jostling because the elements are spot welded ridgidly in position. Sometime during the year 1976, Respondent's agent visited the Petitioner's home and demanded to inspect his invoice and other operating receipts. Petitioner refused, explaining that his wife, who maintained his books and invoices, was not at home. After an exchange of harsh words, Petitioner asked the agents to leave because he was "about to lose his temper". The following day, the Petitioner and his wife made phone calls to the Respondent's Division office in Tampa and a call was also made to the headquarters office in Tallahassee. Petitioner was advised to carry his invoices and all other operating receipts to the Tampa Office for inspection, which was done. Sandor T. Koltay, (Petitioner) has been in business at the above address for more than seven years and has approximately 15 years experience in television repair service. He has taken basic electronic courses, however, he is net a certified electronics technician. Petitioner's business phone rings at his home and he admits to the requirement that he make available to the Division all records and invoices upon request. He testified that this was done in all cases. Petitioner expressed an opinion that the State was "out to get him" based on the prior visit of Division employees Schreder and Crocker. He opined that they attempted to "shake him doqn" for approximately $3,000.00 based on six alleged violations. Sandra Koltay, Petitioner's wife, testified that she recalled the incident involving the Respondent's agents Crocker and Hytha as having occurred during the summer of 1975. She testified that the agents threatened her husband and told him that "he was in a great deal of trouble; that complaints had been received from numerous customers and that he owed six violations at $500.00 each for a total aalount of $3,000.00." She persuaded her husband to call the Bureau Chief in Tallahassee and express his desire to cooperate with the Division in any way possible. Kimbrel suggested that Petitioner carry all files for the previous six months to Tampa, for inspection. As stated, the records were carried to Tampa for inspection. Joseph W. Hytha recalled the visit to Petitioner's home during the summer of 1975 with agent Crocker. He testified that this visit was prompted by the Division's receipt of two irregular complaints and the Department's desire to discuss other matters. He testified that the invoices were illegible and inasmuch as they were at Petitioner's home, (office) they decided to carry out a regular office inspection. Mr. Hytha denied any threats having been voiced by himself or agent Crocker. Warren Quibelle, a CET with approximately 30 years in the electronic repair service business, testified that he had, during his career, worked on many RCA picture tubes such as the one in question here and that he has witnessed numerous "open" filament or intermittent problems problems existing on such tubes. BH testified that he has personally rejected TV tubes based on intermittent filaments. He testified that this is especially so in this instance inasmuch as the set was approximately five years old when it was serviced by the Petitioiier and that the average tube life span is five to seven years. Quibelle expressed doubts as to the accuracy of the 11.9 reading on a five year old picture tube. He further said that there was no way to determine whether or not an intermittent problem existed unless the problem occurs when the technician is present. Numerous witnesses testified that they had had their TV sets repaired by the Petitioner and expressed their opinion that he was reliable, honest and trustworthy. They all testified that they never voiced any complaint to the State or the Division of Consumer Affairs. (Witnesses Neal and Irving)
Conclusions Although the record reveals that there was at least a one day's delay in the Division's ability to inspect Petitioner's records - as requested, the person who was denied the inspection, Stanley Crocker, was not present and therefore it is difficult to determine on this record whether or not the request was actually made. Respecting the allegation that the Petitioner made untrue and misleading statements to John K. Kyle to the effect that he needed a new picture tube, the evidence reveals that the Petitioner, in fact, replaced the tube based on his examination which revealed that the filament in the picture tube was open. This is a problem of an intermittent type and witnesses for the Petitioner and the Respondent both testified that an intermittent problem is one which "is not apparent...and it cannot be traced. The only time such a problem can be traced is when the problem actually exists". This is the intermittent condition warranty given to Messr. Kyle and which apparently has the Respondent's imprimatur. I therefore conclude that these allegations have not been established by competent and substantial evidence nor has the allegation been substantiated that the Petitioner knowingly replaced the tube in Kyle's set when he knowingly was aware that the tube was not defective and replacement was not necessary as alleged as being violative of Chapter 468.159(1)(a) and (b), Florida Statutes. Respecting the allegation that the Petitioner charged for and applied a cleaning agent to Kyle's VHP tuner, the evidence reveals that no charge was made for the tuner cleaning repair. (State's Exhibit #5) Respecting the allegation that the Petitioner presented to John K. Kyle an illegible invoice ill violation of Rules and Regulations 7E-2.10, the evidence reveals that although Petitioner's handwriting leaves something to be desired, the undersigned can read such and therefore I cannot conclude that it is illegible in violation of Rule and Regulation 7B-2.10 of the Department's rules. The undersigned was unable to find any requirement in Florida Statute 468.155 to the effect that the Petitioner was required to notify the Division of a change of home address on or about June 1, 1976, as alleged in paragraph seven of the amended notice to show cause filed herein. It was further noted that Petitioner's registration has his business address denoted thereon and was available there at all times. Finally, I conclude that Petitioner, in fact, installed a Montgomery Ward- Airline brand picture tube in Kyle's TV set as alleged in paragraph six of the amended notice to show cause filed herein. The remaining allegations in paragraph six are rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Petitioner be assessed a civil penalty of $250.00 based on the violation found above. In all other respects I hereby recommend that the allegations contained in the amended notice to show cause filed herein be dismissed. RECOMMENDED this 1st day of December, 1977, Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Richard E. Gentry, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 Charles H. Scully, Esquire 445-31st Street, North Suite 204 St. Petersburg, Florida 33713 Charles E. H. Beck, Esquire 3806 Central Avenue St. Petersburg, Florida 33711 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF BUSINESS REGULATION DIVISION OF GENERAL REGULATION STATE OF FLORIDA SANDOR KOLTAY t/a/ CITY TV, Petitioner, vs. CASE NO. 77-1531 STATE OF FLORIDA, DIVISION OF GENERAL REGULATION, Respondent. /
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent was a licensed Professional land surveyor under registration number LS 0002125, with expiration data of January 31, 1989. Registration was granted by examination on July 14, 1967. The Board of Professional Land Surveyors, (Board), is the state agency charged with the regulation of professional land surveyors in Florida. On January 30, 1987, Respondent's firm, Mandish and Associates, Inc., performed a survey of Lot 62, Fairway Village, a subdivision located in Hillsborough County, Florida. As a result of the field, work performed by a crew employed by Respondent, which prepared field notes indicating the layout of the dwelling located on the property in question, and a second set of field notes which consisted of annotations to the original survey of the lot done by Bay Area Engineering Company, Inc., on August 5, 1977, Respondent prepared a survey drawing of the lot in question for the purpose of mortgage and flood certification on January 30, 1987. The document drawing reflects that the crew performing the survey was headed by an individual named Page. Evaluation of the drawing indicated several defects in the survey process and the matter was referred to Mr. Thomas E. Kaney, a licensed expert surveyor, who reviewed the survey done by Respondent's firm and completed his own field survey of the property. He found that on Respondent's drawing, a railroad spike called for to be on the drawing was not located and that the corner definition was off. He also found that the distances between the structure and the fence were incorrect. In his opinion, the finished drawing could not have been made from the field notes completed by the crew chief. The field notes appeared to be inadequate and did not conform to the survey as finally prepared. In his opinion, the survey drawing conforms to the minimum technical standards in the State of Florida as they pertain to form, but not to accuracy. Even though Respondent did not personally conduct the survey, he is responsible for the activities of the party chief and if Respondent were aware that the party chief had, made false or misleading notes in the past, he would be negligent if he failed to check the accuracy of these field notes accomplished by that individual. Here, the original party chief was Paul Page. Additional field notes were taken by Mr. Lucas, who did the boundary survey and who had some problems in doing so. Because of these problems, Page did a second survey at Respondent's request and upon his return to the office, indicated that everything was OK and he had picked up the information requested that was not available to Lucas. However, the field notes done by both Page and Lucas are not sufficient to give an accurate reflection of the front line of the lot in question. The original field notes fail to show angles, bearings, or distances, but show radial ties to the building. Minimal technical standards require that angles, bearings and distances be shown in the final drawing. In the opinion of Mr. Kaney, the final drawing, with the exception of the misplaced corner, does conform to minimum standards set forth in the Rule since the misplaced corner creates no real problem and the house is well within the property setback lines. Mr. Cole, who also evaluated the survey for the Board, is satisfied that the field notes show corners, but it is difficult to tell whether the angles, bearings, or distances shown are on the original notes or were put there subsequently. In his opinion, the field notes are not sufficient to determine the configuration of Lot 62 and for several reasons, the final survey drawing does not conform to minimum technical standards. First, the type of survey is not indicated. A reference for the bearings shown is not present. There is no comparison on the final drawing with the plat bearings. Second, no distance to the nearest street intersection is identified. The Department's standards allow a showing of a distance to another point of reference when showing the distance to the nearest street is not practical. In the instant case, the Respondent showed the distance to another point of reference even though the lot in question is only two lots removed from the nearest intersection. While Respondent contends this is a reasonable application of the rule, the witness contends it is not. In light of the fact that this is a suburban subdivision and not acreage, and street references are practical, it is found that this is a discrepancy and deviation from minimum standards. Finally, Mr. Cole indicates that the discrepancies between bearings and measurements found on the original plat and those on Respondent's drawings are not shown. The precision shown on the map is too high to be reasonable and this leads to the conclusion that remeasurement was not accomplished in this regard, it should be noted that Mr. Cole's review was based only on a review of the documentation and not on his own survey of the property. The property is described as "suburban" where the error permissibility ratio is one part in 7,500. On a 100 foot line, this would equate to approximately one inch. If the Respondents errors were to fall within the authorized tolerance, it would be appropriate to show the actual measurement as opposed to the original measurement. This is, however, a matter of judgement. The exceptions described by Cole are relatively minor in nature. However, taken as a whole, the Respondent's survey contains errors which, while not the most serious, render the survey less than compatible with minimum technical standards within the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, William H. Mandish, be reprimanded and ordered to pay an administrative fine of $250.00. RECOMMENDED this 7th day of February, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 7th day of February, 1989. COPIES FURNISHED: Elizabeth Alsobrook Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 William H. Mandish 262 South May Avenue Brooksville, FL 33512 Allen R. Smith, Jr. Executive Director Board of Professional Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
The Issue The issue in this case is whether the Respondent, Stephen Phillips Kilmon, committed the violations alleged in an Amended Administrative Complaint issued by the Petitioner Department of Business and Professional Regulation on January 25, 2007, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Board of Professional Surveyors and Mappers (hereinafter referred to as the "Department"), is the state agency charged in Chapter 472, Florida Statutes, with the duty, among other things, of regulating the practice of land surveying and mapping. At the times material to this proceeding, Stephen Phillips Kilmon, is and was a licensed Florida Surveyor and Mapper, having been issued license number LS 5439. At the times material to this proceeding, Mr. Kilmon was doing business as ViaLink, Inc., a licensed surveyor business, having been issued license number LB 6648. Mr. Kilmon's address is 2010 Northeast 122 Road, North Miami, Florida 33181. Mr. Kilmon obtained his license in January 1995. Before obtaining his license and beginning in 1980, he obtained experience in surveying, mapping, civil engineering, computer aided design drafting, and information management systems, which ultimately led to his licensure. The Fiddler's Creek Project. 951 Land Holdings, Ltd. (hereinafter referred to as "951"), through Holes Montes & Associates (hereinafter referred to as "Holes Montes"), was engaged in the development of a housing/golf course project in Naples, Florida (hereinafter referred to as the "Fiddler's Creek Project"). A portion of the Fiddler's Creek Project was being constructed by Atlantic Civil, Inc. (hereinafter referred to as "ACI"). Among other things, ACI was engaged in the excavation of several lakes and the creation of an upland golf course in a wetlands' area. ACI was, however, having difficulty completing the excavation of the lakes due to apparent back-fill which was preventing ACI from achieving the contracted depth of -18 feet National Geiodetic Vertical Datum 1929. Mr. Kilmon described the problem as follows: . . . each lake became mysteriously back- filled to a depth of -14 feet, National Geiodetic Vertical Datum 1929 (NGVD29) virtually overnight not allowing ACI to achieve reaching their contract depth of -18 NGVD29 for the bottom of any lake. The analogy is like digging a small hole in the sand a the beach near the water only to watch it fill with more sand and water each time you scoop out the material. The result of ACI's futile efforts to achieve and maintain -18 NGVD29 for any lake caused an over-excavation in cubic yards per lake, long before ACI could finish cutting out the lake pattern or design template. ACI filled its construction site limits to more than 110% of the cubic yards HMA [Holes Montes & Associates] designed for it, yet only completed 75% of the lakes final design template. ACI sought reasonable contract relief from 951 in achieving the unattainable contract required -18 NGVD29 lake bottom depth due to the natural back- fill of liquid sand conditions below the initial 4~6 feet of cap rock, and 951 refused. ACI's position then became that 951 was taking advantage of its contractor to force excessive extraction of "free" fill material for 951 at the unfair expense of ACI. . . . ACI then made the attempt hiring ViaLink to identify the approximate best known volume of excavated "fill" material placed onsite from the lakes, and to be paid according to material type cubic yard unit cost, rather than by the contract method of lake dredge percent complete. Petitioner's Exhibit 6. Involvement of ViaLink, Inc. and Mr. Kilmon in the Fiddler's Creek Project. As a result of the foregoing described problem, ACI hired ViaLink, Inc., and Mr. Kilmon to provide services described by Mr. Kilmon, in pertinent part, as follows: My initial role as Surveyor/Mapper for ACI was to monitor the mysterious back-filing of sandy material during the dredging process after reaching -18 NGVD29. I performed numerous measurements immediately following the backhoe digging, and recorded depths reaching the -18 NGVD29. . . . My second involvement came several months later. At this time I was requested by ACI to perform a survey which captures a topographic surface (less the hydrographic surfaces of the lakes, surveyed by HMA) in the form of a digital terrain model (DTM) of the contracted construction limits out to, and including the bordering lands matching to existing conditions beyond the ACI construction site limit for that moment in time. . . . My third and next involvement on this project site came when ACI informed me that their informal negotiations with 951 felt [sic] through at trying to convey the understanding of the amount of material already placed onsite exceeding the contracted and design intended volume for the ACI construction site limits. I was asked by ACI to contact HMA directly to compare my "ViaLink" DTM topographic surface . . . to the HMA DTM surfaces maintained on their computer systems . . . . From this point on legal counsel for both sides took over the control for resolution between ACI vs. 951, which sent everyone into court. . . . Petitioner's Exhibit 6. Ultimately, the parties turned to the courts to resolve their dispute. During this litigation process, Mr. Kilmon prepared what he titled a "Specific Purpose Survey Surveyor's Report" (hereinafter referred to as the "Surveyor's Report"). Petitioner's Exhibit 4. The Surveyor's Report was prepared in response to a subpoena from counsel for 951 and had to be prepared quickly: MR. KILMON: Because it was an evolutionary process -- ever since we were first hired to go and work on the site, the Judge said, "Wrap it up." That was exactly what he said, "Wrap it up," and he said "Wrap it up" because the other counsel on the other side was seeing that this evolution here of survey work was actually producing something, that I was actually able to recreate this [Digital Terrain Model] that they were hiding. I was actually able to come up with it again and actually produce a number. They cut it, and they go the Judge to say, "Okay, let's produce what he has, let's see what he has" My client said, "Please, you've got to say something. They've drawn a line in the sand and we're not allowed to cross it anymore. We have to come up with something." . . . . MR. KILMON: That was the first piece I gave them because of that subpoena, and that was the May 30 disk. . . . And then I ended up submitting the final version of it that I ran out of time with, and well, here you go, it's the last version. So I complied is all I did. I complied. . . . Transcript, Vol. II, Page 215, Lines 15-25, Page 216, Lines 1-4, and Page 217, Lines 6-12. The Surveyor's Report. The Surveyor's Report, dated July 10, 2002, and addressed to the president and CEO of ACI, states that it involves "Professional Forensic Surveying & Mapping Services; Earthwork Analysis" for the Fiddler's Creek Project. The Surveyor's Report contains the following "Mission Statement": Develop a stratum within a Digital Terrain Model (DTM) having two (2) surfaces for comparison; (a) compile an existing conditions surface (Surface 2[SRF2]) observed and recorded by Hole, Montes & Associates, Inc. (HMA) and their sub- consultants at the time Atlantic Civil, Inc. (ACI) began construction, and (b) compile a final surface (Surface 3 [Srf3]) observed hydrographically by HMA and topographically by ViaLink, Inc (ViaLink) at the time the ACI was terminated, less any areas even partially filled by others, though completed by ACI. Perform a calculation within the DTM which determines the amount of "FILL" material placed on the Fiddler's Creek, Phase 2A, Stage l (the "Site") by Atlantic Civil, Inc. between Srf2 and Srf 3. Methods of volume calculations include "Average End Area" by contract, and "Prismoidal" in support as a backup check calculation in verification. The Surveyor's Report also lists the data relied upon by Mr. Kilmon, many of the rules that govern the practice of surveyors and mappers, and information concerning the calculation of the amount of fill removed by ACI in its efforts to excavate the lakes made by Mr. Kilmon. The Surveyor's Report also included a compact disc (hereinafter referred to as the "CD"), which contained "AutoCAD drawing files depicting a Digital Terrain Model ('DTM')." The Digital Terrain Model (hereinafter referred to as the "DTM"), a digital representation of data, is, according to the Department, a "map." Petitioner's Exhibit 5. The CD contained "AutoCAD drawing files depicting a Digital Terrain Model (DTM)." A printed depiction of the Digital Terrain Model (hereinafter referred to as the "DTM"), contained on the CD was printed and admitted in evidence. It was never Mr. Kilmon's intention to prepare a "quantity survey" as those terms are defined in Florida Administrative Code Rule 61G17-6.002(8)(h), or provide a "map" with his report. As to the type of report he intended to issue, Mr. Kilmon testified, in part, as follows: I was left with a partial, if you will, quantity survey, and it's uncertified data, and I didn't want anyone to take off with an assumption, by just reading the title of my report, that there was some sort of real quantity surveying going on here. That’s why you have a specific purpose survey is when you have things that are really out of whack from what's normal for a survey type, slowing everything down. Making people take a look at the title, specific purpose survey, was my judgment call. I wanted to make everybody, including the public, know that right off the top of the bat, you're not going to see this as a quantity. You're going to have to break it down and understand what the data is that made the number. Transcript, Vol. II, Page 220, Lines 16-25, and Page 221, Lines 1-5. Mr. Kilmon recognized that to issuing a quantity survey or map was not appropriate for two reasons: First, some of the data he had available to him was unverified data from Holes Montes; and Second, he did not have all of the data necessary to complete an accurate quantity survey. As Mr. Kilmon further explained his intention during his testimony at hearing, agreeing "in part" with a question as to whether he had concluded that a quantity survey was not appropriate because of inappropriate data he had: . . . . The other part is that the end- all answer of what would be the quantity on that surface, because we didn't have enough data, not just uncertified, but we didn't have enough data to tell where every bit of fill was on that surface. There is no way to know that the end-all number would be. It's simply, as I put in my certification, the best-known number, and the reason is because we're just trying to determine whether or not it's in the 700, 600, a thousand cubit yard range, or are we talking about the 400,000 cubic yard range that the contractor got paid for. Is it worth another look at reevaluating with better cooperation from the other surveyor to get certified data and maybe look at their actual DTM, you know, to get to the bottom of this? Transcript, Vol. II, Page 218, Lines 22-25 and Page 219, Lines 1-12. In addition to styling his report as a "Specific Purpose Survey Surveyor's Report," rather than a quantity survey, Mr. Kilmon warned the reader of the uncertainty of some of the data he had relied upon. On page 14 of the Surveyor's Report, under the heading "Reviewed Survey Data" he identifies the following "Surveyor's and Mappers providing surveying data for review" (see also, page 1): Hole Montes & Associates, Inc. (HMA), . . .as the surveying and mapping consultant or agent to the Fiddler's Creek Developer (FCD), including aerial photogrammetry sub- consultants employed, though their identities are not disclosed. ViaLink, Inc. (ViaLink) . . . as the surveyor and mapping consultant to ACI. On January 24, 2001 the undersigned Surveyor and Mapper formally made a request of HMA and the FCD through ACI for a copy of specific survey instruments, in digital and hardcopy formats, to expedite the review of the Fiddler's Creek Ste, as identified above. To date no signed and sealed, or certified field notes, survey maps, sketches, or surveyor's reports, of any kind have been provided for evaluation. Further, HMA and the FCD insist all survey related information available from there [sic]file has been proffered for review. While originally requested of HMA and the FCD certain forms of helpful raw and finished survey product(s) developed by HMA (and/or it [sic] sub-consultants) and the FCD have if [sic] fact been withheld from this review. Examples being lawfully prepared certified plats of public record, their respective certified boundary surveys, and control surveys signed and sealed. Other examples of withheld survey information include all controlled aerial photogrammetry products observed at the time ACI was terminated. Certified survey data contained in the attached DTM to date is limited to that portion of information provided by this firm, ViaLink, Inc. All other survey data provided for this DTM review is NOT certified, and does not meet the Minimum Technical Standards (MTS) of Chapter 61G17-6 of the Florida Administrative Code as required by Florida Law. The lack of certification does not invalidate the accuracy of the survey data, just its backing. (Emphasis added). The Surveyor's Report, page 14, goes on to advise that there are "three(3) surfaces" contained within the CD's DTM and warns the following with regard to "Surface No. 1": "Surface No. 1 (Srf1) being simply the "Contract Surface" reportedly created by a mystery aerial photogrammetrist developing planimetrics and derived three-dimensional spot elevations as a sub-consultant to HMA in and about a Fiddler's Creek pre- construction Site. " Beginning at the bottom of page 14 and continuing on to page 15, the Surveyor's Report describes where more specific data concerning all three surfaces was obtained, the accuracy or lack thereof of the data, and whether the data is certified. Much of the data listed is acknowledged to be of "unknown" accuracy and to lack certification. Finally, on pages 25 and 26, under the heading "Surveyor's & Mapper Notes," Mr. Kilmon noted the following concerning the inadequacy of data used in the report: 4.) This SPECIFIC PURPOSE SURVEY & MAP SURVEYOR'S REPORT is the direct result of geometric calculation, in large part due to the availability of qualified data provided by others, but without any certification of the responsible surveyor and mapper. . . . . 8.) Under Florida Law, this firm, ViaLink, Inc., and the undersigned Surveyor & Mapper can not certify survey information provided by others when the survey is not conducted under the direct supervision of the undersigned Surveyor & Mapper. Therefore this firm, ViaLink, Inc., and the undersigned Surveyor & Mapper will not assuming [sic] any liability; for information provided by others used in this SPECIFIC PURPOSE SURVEY for Earthwork Analysis. Mr. Kilmon goes on to make the following ultimate findings in the Surveyor's Report: 10.) It is this undersigned Surveyor & Mapper's certain opinion that the earthwork calculation which determined a FILL quantity of 688,080 cubic yards of material reflects an extremely conservative volume of material placed onsite by ACI for the area known as Phase 2A, Stage 1. Additionally, extreme measures have been taken to exclude any and all areas of Srf3 were even in part FILL was placed by others. These pocketed areas of partial FILL formerly reflected within SRF3 have been extensively sought out and totally removed by ACI personnel having direct personal knowledge of the site prior to any construction by ACI. Aerial photography taken by Aerophoto, Inc., on 07/15/1999 independently supports these efforts depicting the same identified regions of partial FILL. The result of this additional effort to meet and/or exceed the Mission Statement of this Surveyor's Report now actually benefits the FCD. Omitted partially filled regions by ACI and others are now not claimed by ACI in any way, but are instead 100% credited to the FCD. 11.) It is the undersigned Surveyor & Mapper's certain opinion that HMA conducted its surveying practices with the positive intension to reflect the actual conditions of Fiddler's Creek, Phase 2A, State 1 topographic and hydrographic surfaces, as no evidence was found to the contrary. 12.) The Average End Area computed total FILL quantity of 688,080 represents FILL to form higher uplands regions and placed in lakes, and may contain a variety of earth materials from rock to sand. On the last page of the Surveyor's Report is the following note: Not Valid without the signature and the original raised seal of a Florida licensed surveyor and mapper. Further this Surveyor's Report is not valid without the original CD-ROM displaying the original signature of this same undersigned Surveyor & Mapper. As noted, supra, a CD was provided by Mr. Kilmon with the Surveyor's Report. The DTM contains a large "N" with an arrow at the bottom. Under this symbol is the following identifying information: Specific Purpose Survey Fiddler's Creek, Phase 2A, Stage 1 (NAD 83/99 FL E. 901 & NGVD 29) Mr. Kilmon did not intend for the DTM to be a "map." Toward this end, he notes the following in the Surveyor's Report on page 26 under the heading "Surveyor's & Mapper Notes": "This is NOT a BOUNDARY SURVEY." Consistent with his intent to only prepare a "report" and not a "report and map", Mr. Kilmon consistently refers to the Surveyor's Report throughout the report (except for what appears to be typographical error), as a "Specific Purpose Survey & Map Surveyor's Report." He does not refer to the report as a "Specific Purpose Survey and Map." To the extent that it is considered a "map," the DTM does not contain the information required by Florida Administrative Code Rule 61G17-6.003 alleged to be missing in the Amended Administrative Complaint. Mr. Kilmon signed and sealed the Surveyor's Report under the following "Surveyor's Certification:" THIS IS TO CERTIFY that this SPECIFIC PURPOSE SURVEY & MAP SURVEYOR'S REPORT is the result of compiled topographic and hydrographic data in part provided by others for the limited purpose of calculating best known "FILL" quantities as mentioned in the Mission Statement herein. I FURTHER CERTIFY that this SPECIFIC PURPOSE SURVEY & MAP SURVEYOR'S REPORT meets or exceeds the evaluation, analysis, and result finding accuracies established by the Minimum Technical Standards as set forth by the Florida Board of Surveyors and Mappers in Chapter 61G17-6.0052, Florida Administrative Code, pursuant to Chapter 472.027 of the Florida Statutes. Summary Findings. The ultimate issues of fact in this case are whether the Surveyor's Report constitutes a "quantity survey" and whether the DTM is a "Map." Credible expert witnesses for the Department and Mr. Kilmon gave inconsistent testimony on these issues. Ultimately, as to the first question, whether the Surveyor's Report constitutes a "quantity survey," the testimony of the Department's expert witnesses was more convincing. It is concluded that the Surveyor's Report, regardless of what Mr. Kilmon named it, is a quantity survey, which is defined in Florida Administrative Code Rule 61G17-6.002(8)(h) and (j), as "a survey to obtain measurements of quantity." The Surveyor's Report comes within this definition: First, the Surveyor's Report is a "survey", which is defined in Florida Administrative Code Rule 61G17-6.003(8) as "the orderly process of determining facts of size, shape, identity, geodetic location, or legal location by viewing and applying direct measurement of features on or near the earth's surface using field or image methods. . . ."; and Second, the survey, by admission of Mr. Kilmon at hearing and on the face of the Surveyor's Report, was intended to obtain and report a measurement of quantity even if only a rough estimate thereof. While Mr. Kilmon did qualify his calculations and openly disclosed the shortcomings of the data relied upon, the bottom line is Mr. Kilmon concluded that "[i]t is this undersigned Surveyor & Mapper's certain opinion that the earthwork calculation which determined a FILL quantity of 688,080 cubic yards of material reflects an extremely conservative volume of material placed onsite by ACI for the area known as Phase 2A, Stage 1." The second issue, as to the proper characterization of the DTM, is more difficult to resolve. The Department's experts unequivocally characterized the DTM as a map. Mr. Kilmon's expert testimony emphasized the issue of whether a map was required rather than whether the DTM was a map. While it seems that the DTM is nothing more than a depiction of data during an intermediate step in the process of manipulating that data, it would not be reasonable to reject the testimony of the Department's experts. It is, therefore, found that the DTM is a map. The Department's witnesses did not, however, prove clearly and convincingly that the DTM is the type of map for which the information specified in Florida Administrative Code Rule 61G17-6.003 is required. Mr. Kilmon's expert, on the other hand, testified convincingly that the DTM is not a map to which the standards and requirements of Florida Administrative Code Rule 61G17-6.003(3) apply.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Board enter a final order finding that Stephen Phillips Kilmon committed the violation described in this Recommended Order, issuing a written reprimand, and requiring that he pay a fine of $500.00 within 30 days of the entry of the final order. DONE AND ENTERED this 19th day of July, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 19th day of July, 2006. COPIES FURNISHED: Eric R. Hurst Charles F. Tunnicliff Assistants General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen Phillips Kilmon 2010 Northeast 122 Road North Miami, Florida 33181 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Morrison, Executive Director Board of Professional Land Surveyors And Mappers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent, Model 2000, Inc., a talent agency, violated Sections 468.402(1)(d), 468.402(1)(e), 468.402(1)(s), 468.402(t), 468.410(2), 468.410(3), 468.412(6) and 468.413(2)(e), Florida Statutes, through solicitation, fraud, misrepresentation, concealment, false promises, false pretenses, exploitation, trick, scheme, or device, exercise of undue influence, requiring photography services as a prerequisite condition of employment, and failure to provide contracts of representation as alleged in each of the 15 separate Administrative Complaints filed in this cause.
Findings Of Fact Petitioner is responsible for the licensing and regulation of talent agents in Florida. Authority for the licensure and regulation is set forth in Chapter 468, Florida Statutes, and associated provisions of the Florida Administrative Code. At all times relevant and material to this inquiry, Respondent, Model 2000, Inc., was owned and operated by Nancy Sniffen, a.k.a. Nancy Keogh (Sniffen), and was licensed in the State of Florida as a Talent Agency, having been issued license number TA 0000618. The last known address for Respondent is 4852 West Gandy Boulevard, Tampa, Florida. At all times relevant to this case, Sniffen advertised in print, served, operated, managed, and held herself out to the public as a Talent Agent by and through Model 2000, Inc. In the Tampa Tribune daily newspaper under the headings, Classified, Employment General Section, Sniffen published the following ad and variations thereof: ACT/MODEL NOW Kids! Teens! Adults! For TV commercials, print, catalogs, movies. Get started the right way now!! Call 837-5700 for interview. No fees Model 2000 Inc. TA#681. As a direct result of the above advertisement, Renee Donaldson, Irma Avery, Charlene Mars, Gina Hughes, and Robert Mikolajczak responded to the Tampa Tribune advertisement. In the Weekly Planet, a hiring ad, similar in content to the Tampa Tribune ad, containing "Call 837-5700" was published by Model 2000, Inc. As a direct result of this advertisement in the Weekly Planet, Athena Lopez and Lisa Menuto responded. During the initial meeting between Sniffen and the witnesses herein, she made promises, guarantees, and statements known to be false when made regarding each individual's looks and their latent talents. They were told that each had great employment opportunities as models, and with her connections with several department stores, J.C. Penny, Beall's, and Dillards, and her connections with their catalog companies, each model was assured of employment. Based upon their individual looks and ethnic differences, Sniffen stated to one or more of the witnesses who testified that there was: "a high demand for ethnic models" (non-whites), "lots of job for Hispanics," "abundance for work for people with your looks," "they are looking for someone your age," and "there is a demand and need for someone like you." Sniffen intended these statement to induce individuals to rely upon her assessment and expertise as a modeling agent to secure employment. At the time Sniffen made the above statements, she knew or should have known that employment opportunities for models required more than her one-look assessment. Sniffen assured each witness that "there was a lot of work in the area"; "companies were looking for people like [sic]"; "have so much work and not enough models to fill jobs"; "I'm affiliated with J.C. Penny, Burdines, and Dillards in their casting area for hiring for photo shots"; and "Florida is number one in hiring for print work." Based upon these representations or variations thereof, Athena Lopez, Irma Avery, Charlene Mars, Fiona West (for her daughter Christy West), Lisa Menuto, Robert Mikolajaczak, Gina Hughes (for her daughter Gabriella Hughes), Tom Stanton, and Nelita Parris agreed to have their photographs taken and agreed to engage Sniffen as their respective modeling agent and representative. The record contains no evidence that Sniffen presently had or had in the past "affiliations" with any of the major chain stores or their casting departments. During the initial meeting with these witnesses, Sniffen required them, as a condition precedent to beginning their modeling career, to have photographs made. These photographs were to be taken by Sniffen's staff photographers, and from those photographs each model was required to have composite cards printed at an additional cost. Based upon the representations made by Sniffen requiring each model to have composite card photography, each witness agreed and paid Sniffen a photograph and composite card fee. The witnesses below made payments either in cash and/or by credit card to have their photographs taken by Sniffen's photographers at a location she designated. Spencer Borisoff $934.07 Tom Stanton $855.00 Athena Lopez $466.94 Lisa Menuto $693.00 Gina Hughes $1,040.82 Robert Mikolijcak $347.00 Aaliyah Womack $603.92 Charlene Mars $261.15 Irma Avery $774.90 Nelita Parris $150.00 Christy West3 $855.00 Nelita Parris $150.00 No witness hereinabove secured employment with any company as a result of the composite card photographs. Sniffen's representation as their talent agent that composite cards were a pre-employment requirement in the modeling business was untrue and knowingly made with the intent to, and in fact did, cause each witnesses to reply thereon to their determinant. Sniffen hired Anthony Guagliardo, a Florida-licensed public service photographer since 1999, as one of her three photographers to take photographs of her clients. From November 1999 to April 2000, Guagliardo worked for Sniffen taking photographs of her clients. Sniffen called the Photo Hut were he worked seeking a photographer that would assist her with photographing her clients who came in to have their composite cards made. Sniffen's initial phone conversation at Photo Hut was with another person on duty who asked other employees if anyone was interested in part-time work. After a brief conversation, Guagliardo agreed to be a photographer and began working for Model 2000, Inc. According to his testimony, Guarliardo's daily employment hours were from 9:00 a.m. to 5/6:00 p.m. daily. He worked infrequently on Saturdays and Sundays. For his photography services, he was paid $25.00 per hour. During a routine day, Guagliardo testified that as many as 20 persons would arrive to have their pictures taken, and he would take 18 shots of each client in three different poses or positions. Mr. Guagliardo testified that a bulk purchase of film reduced cost of each roll of film to $2.00 per roll. The contact sheet cost $20.00 per sheet from which 72 photographs were made. A single roll of film was needed to photograph two clients. The cost to Sniffen for one hour of the photographer's time, a roll of film, and two contact sheets averaged $65. The average amount Sniffen charged each of the 11 clients listed above for their photo-shoot was $583.00 each. During the time he was on duty, Guagliardo testified that normally two additional photographers were also working doing photo shoots for Sniffen. The evidence clearly demonstrates that Sniffen advertised to attract customers, each of whom she required payment for photographs upon her representations that composite photograph cards were a pre-employment requirement for modeling. The evidence sufficiently demonstrates that Sniffen had no honest intent; her singular purpose was financial gain, and her means was the photography/composite card requirement. Once monies were paid, few of the witnesses were able to contact Sniffen and none secured modeling employment through Sniffen's efforts. The models, believing Sniffen's assurances that composite card photographs were necessary for securing employment in modeling, later came to realize Sniffen's intent was only to secure payment for the photo sessions. Sniffen's continued refusals to answer phone calls, to communicate with the witnesses after composite card payments were made, and the lack of leads and/or contacts from potential employers demonstrated her single-minded purpose not to assist them as their modeling agent. They were intentionally misled by Sniffen's false promises. The Agency proved the allegations in the following Administrative Complaints: DOAH 02-2982 - Spencer Borisoff DOAH 02-2983 - Tom Stanton DOAH 02-2984 - Athena Lopez DOAH 02-2985 - Lisa Menuto DOAH 02-2988 - Gina Hughes DOAH 02-2990 - Robert Mikolkczak DOAH 02-2992 - Aaliyah Womack DOAH 02-2993 - Charlene Mars DOAH 02-2994 - Irma Avery DOAH 02-2995 - Nelita Parris DOAH 02-2996 - Christy West The Agency presented no evidence concerning the administrative complaints below and have not met its required burden of proof. DOAH 02-2986 - Bilan Evans DOAH 02-2987 - Louis Kelbs DOAH 02-2989 - John Greene DOAH 02-2991 - Van Saint Meyer
Recommendation Upon consideration of the facts found, the evidence admitted, and the Conclusions of Law reached, it is hereby RECOMMENDED that: Petitioner enter a final order dismissing the following Administrative Complaints: DOAH Case No 02-2986; DOAH Case No. 02-2987; DOAH Case No. 02-2989; and DOAH Case No. 02-2991. It is further Recommended that: Petitioner enter a final order finding Respondent in violation of Section 468.413(2), (3) and (4), Florida Statutes, and impose the following penalties: Require Respondent to make restitution to the Complainants below within 60 days: Case Nos. Complainants Amount DOAH 02-2982 Spencer Borisoff $934.07 DOAH 02-2983 Tom Stanton $855.00 DOAH 02-2984 Athena Lopez $466.94 DOAH 02-2985 Lisa Menuto $693.02 DOAH 02-2988 Gina Hughes $1,040.82 DOAH 02-2990 Robert Mikolkczak $347.00 DOAH 02-2992 Aaliyah Womack $603.92 DOAH 02-2993 Charlene Mars $261.15 DOAH 02-2994 Irma Avery $774.90 DOAH 02-2995 Nelita Parris $150.00 DOAH 02-2996 Christy West $855.00 Impose a fine in the amount of $1,000 for each of the following Administrative Complaints: DOAH Case No. 02-2982; DOAH Case No. 02-2983; DOAH Case No. 02-2984; DOAH Case No. 02-2985; DOAH Case No. 02-2988; DOAH Case No. 02-2990; DOAH Case No. 02-2992; DOAH Case No. 02-2993; DOAH Case No. 02-2994; DOAH Case No. 02-2995; and DOAH Case No. 02-2996, for a total of $11,000 in fines. Permanent revocation of Respondent's license. Should Respondent fail to timely comply with full payment of the restitutions and the fines as herein ordered, the Agency pursue those sanctions as provided in Sections 468.413(2) and 468.413(4), Florida Statutes. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 10th day of January, 2003.
The Issue Whether petitioner was substantially effected by DOT's filing of a maintenance map or maps in Gulf County? Whether she filed a timely petition for hearing? What action DOT should take in the circumstances?
Findings Of Fact The coast road through Gulf County now known as U.S. Highway 98 or State Road 30-A, was once called State Road 10. There is no record that the authorities obtained legal title to the right of way before building the road. In 1934 or 1935, Clint Thursby, a state road department maintenance foreman, Henry Alex Levins, assistant foreman or "little pusher," Wally Collinsworth, J. Dewey Davis, Lewis C. Gay, John Lester McQuaig, James Moore, Warren Northbrook, Earl Pulsar and Edmond Burnice Young transplanted palm trees from Gautier Hamlet to the Gulf side of old State Road 10. Mr. Levins measured 50 feet gulfward from the center line of the road, including the stretch of the road that traverses Yen's Addition to Beacon Hill, and drove stobs every 14 feet or so along the whole length of the road. For many years, the public has made use of the strip of property between the edge of the highway and the line once formed by the palm trees, some of which still stand. DOT MAPS Among DOT's records is a 1938 "right of way map." The original is in its Tallahassee office and a copy is in its district office in Chipley. A copy has also been in the Gulf County Courthouse for many years, although it was never filed in the official records. Together with certain other DOT maps, it was kept separately in a book there. This "right of way map," Joint Exhibit No. 2, depicts the right of way for old State Road 10 through Yon's Addition to Beacon Hill as 150 feet wide. Petitioner's Exhibit No. 5. The map is not based on any claim to or proof of ownership, but was drawn to reflect "project alignment." (Testimony of Spangenberg) A DOT maintenance map dated May 4, 1981, Petitioner's Exhibit No. 7, was filed among the official records of Gulf County, Florida, in May of 1981. DOT maintenance maps are used to inform maintenance crews of the width of the road shoulders they are to maintain. DOT sometimes files these maps in official county records, in order to put adjacent landowners and others on notice of the extent of DOT's claim of right of way, in the absence of record proof of conveyance to DOT. The filing of such a map by DOT is the assertion, not the relinquishment of a claim to real property. Between the time DOT's "right of way map" was drawn and the date of the "maintenance map," the area waterward of U.S. Highway 98 in Yon's Addition to Beacon Hill has twice been platted (although only the second plat became a part of the official records of Gulf County), and questions as to ownership of land in the area have been repeatedly litigated in the courts. PETITIONER'S INTEREST Sally Malone lives in a house 190 feet from U.S. Highway 98. She does not own any real property in Gulf County "in [her] own name," but her name appears along with her husband's on an unrecorded deed.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Transportation dismiss the petition filed in this matter. Sally Malone v. Department of Transportation and Cecil G. Costin, Case No. 81-1621. DONE and ENTERED this 29th day of April, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 29th day of April, 1983. COPIES FURNISHED: Sally Malone Post Office Box 57 Port St. Joe, Florida 32456 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Cecil G. Costin, Jr. 413 Williams Avenue Port St. Joe, Florida 33456
The Issue Whether the decision of Respondent, Seminole County School Board, not to include Petitioner, Cady Studios, LLC, in its award of a yearbook and photography services contract was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact Respondent, School Board, operates the public school system established for the School District of Seminole County, Florida. See § 1001.30, Fla. Stat. The School Board oversees 37 elementary schools, 12 middle schools, nine high schools, and seven special centers. The Seminole County School District includes over 67,000 students. The School Board is an authorized governmental entity allowed to contract for commodities or services using the competitive solicitation process set forth in section 287.057, Florida Statutes. See §§ 1010.04 and 1001.41(4), Fla. Stat. On July 18, 2017, the School Board published [Request for Proposal] #17180001P-LL, Yearbook and Photography Services (the “RFP”). Through the RFP, the School Board solicited qualified vendors to provide Photography Services to Seminole County Public Schools. The initial contract for the Photography Services runs for three years, with a possible extension of another two years. Prior to this RFP, the School Board had never used a request for proposal to solicit the Photography Services. Thirteen photography and yearbook vendors, including Cady Studios, responded to the RFP. Ultimately, as further explained below, the School Board determined to offer the top seven vendors a contract to provide the Photography Services. Cady Studios was ranked eighth. Consequently, Cady Studios was not selected under the RFP. Cady Studios is a family-owned portrait company based in Florida and has provided school portrait services since 1998. Cady Studios has partnered with over 50 schools in central Florida, and is an approved vendor in 35 Florida school districts. The School Board published the RFP, as well as an Addendum, on VendorLink and Demand Star websites. The School Board used these two on-line platforms to disseminate information regarding the solicitation to interested vendors. The School Board provided links to VendorLink and Demand Star on the district’s website. After the School Board posted the RFP on July 18, 2017, the School Board did not receive any protests to the terms, conditions, or specifications contained in the RFP.5/ Pertinent to this matter, Cady Studios never protested the RFP’s terms, conditions, or specifications, or the School Board’s decision to competitively solicit bids for the Photography Services under section 287.057. As stated in the RFP, the School Board conducted a pre- proposal conference on July 27, 2017. During this meeting, the School Board offered interested vendors the opportunity to ask questions about the RFP, as well as educate themselves about the process. Cady Studios did not attend the pre-proposal conference. On August 2, 2017, the School Board posted an Addendum to the RFP which requested specific pricing information for the Photography Services to be offered to high schools, middle schools, and/or elementary schools in Seminole County. Proposals for the Photography Services were due on August 15, 2017. Thirteen school photography and yearbook vendors, including Cady Studios, presented proposals in response to the RFP. RFP, Section V, directed each vendor to deliver “One (1) original, One (1) copy, and ten (10) electronic [USB] thumb drive version[s]” of its proposal to the School Board. To score the proposals, as set forth in RFP, Section IV, 1.A, the School Board formed an Evaluation Committee. The voting members consisted of an executive director from an elementary school, a middle school, and a high school (or their designees), as well as a local business advisory member. A non-voting School Board member was also included on the Evaluation Committee. The individuals selected to serve as the voting members of the Evaluation Committee included Dr. Trent Daniel (Principal, Lake Brantley High School); Byron Durias (Principal, Sanford Middle School); Tina Langdon (Principal, Sabal Point Elementary School); and Donald Miller (Business Advisory Member). Karen Almond served as the non-voting School Board member. After the School Board assembled the Evaluation Committee, the four voting members received training on the RFP’s scoring procedure. The training was conducted by Luangel Lowder, the School Board’s Purchasing Agent, on August 17, 2017. Ms. Lowder drafted and prepared the RFP. She also facilitated the RFP process. Ms. Lowder distributed training notes to each evaluator, which included guidance on how to score the proposals. In her written comments, Ms. Lowder wrote, “The Vendor Submittals are on Individual Jump Drives. I do have a hard copy if needed.” Ms. Lowder also provided “Adjectival Descriptor Rating Guidelines,” which the voting members were to use to score the proposals. Regarding a score of “0,” the guidelines explained: Unsatisfactory (0): Not responsive to question. “Unsatisfactory” is defined as a response not meeting the requirements without major revisions and proposes an unacceptable risk. “Unsatisfactory” demonstrates a misunderstanding of the requirements; the approach fails to meet performance or capability standard and contains major omissions and inadequate detail to assure the evaluator that the respondent has an understanding of the requirement. RFP, Sections IV and V, also listed the specific evaluation criteria, as well as the adjectival scoring system, the Evaluation Committee was to use to determine each vendor’s score. RFP, Section V, directed that “[e]ach response shall be organized and presented in the following sequence and will include the following at a minimum”: Tab 1-Respondent’s Profile and Submittal Letter (Non- Scored) Tab 2-Experience of Personnel (Weighted Value 25) Tab 3-Technical Approach Methodology (Weighted Value 30) Tab 4-References (Weighted Value 10) Tab 5-Fee Schedule (Weighted Value 35) Tab 6-Confidential Materials, Financial Statement and Litigation (Non-Scored) Tab 7-Exceptions to Draft Contract (Non-Scored) Tab 8-Addenda (Non-Scored) Tab 9-Required Documents (Non-Scored) The proposals were to be scored on a scale of 0 to 4 with a score of 0 as the least favorable, and a score of 4 as the most favorable in all sections. RFP, Section IV, 1.C, noted that a vendor’s response would receive a score of 0 if it was “Unsatisfactory: Not responsive to the question.” The RFP did not provide objective measures for the evaluators to score the proposals. Instead, the School Board relied on the experience and judgment of each evaluator as to what score to award in each category. The RFP notified vendors that, after the proposals were evaluated, the Evaluation Committee might conduct interviews or presentations from a shortlist of vendors. Per the terms of the RFP, the School Board required each winning vendor to enter into a Master Services Agreement. The Master Services Agreement was to ensure that each vendor for the Photography Services complied with, and operated under, the same terms and conditions. These standard terms and conditions included, but were not limited to, requirements for background checks, licenses, certificates of insurance, as well as the use of a common commission’s structure. Thereafter, the School Board intended for each district school to select a company from the list of approved vendors from whom they desired to obtain the Photography Services. After the 13 vendors presented their proposals on August 15, 2017, the School Board distributed a thumb [USB] drive from each vendor to each Evaluation Committee member. At that point, each committee member separately scored each proposal using the four weighted criteria listed in RFP, Section V: Experience of Personnel (25 points), Technical Approach Methodology (30 points), References (10 points), and Fee Schedule (35 points). On September 21, 2017, the Evaluation Committee convened a “short-list meeting” to discuss the scores each committee member awarded to each vendor. When Cady Studios’ proposal came up for review, two committee members, Dr. Trent Daniel and Byron Durias, announced that the USB drives they had been given for Cady Studios were blank. Dr. Daniel had tried her USB drive on two computers with similar results: the USB drive did not contain any files. Ms. Lowder then asked both members if they wished to review another USB drive or a paper copy of Cady Studios’ presentation so that they could score its proposal. Dr. Daniel declined. On her score sheet for Cady Studios, Dr. Daniel wrote before the short-list meeting, “could not read USB - empty.” During the discussion between the other evaluators, Dr. Daniel added: “notes, experience limited, reference from school, senior package high, presentation of bid, partnership w/ Herff Jones.” At the end of the discourse, because she had no proposal to score, Dr. Daniel disclosed to the Evaluation Committee that she awarded Cady Studios a score of “0” in every category. Mr. Durias, however, was willing to evaluate Cady Studios during the short-list meeting. Therefore, Ms. Lowder provided him another USB drive that did contain Cady Studios’ proposal. After his review, Mr. Durias awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 1 – References, and 2 – Fee Schedule. Each USB drive that Tina Langdon and Donald Miller received for Cady Studios contained its proposal, which they scored. Ms. Langdon awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 3 – References, and 3 – Fee Schedule. Mr. Miller awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 3 – References, and 2 – Fee Schedule. At the final hearing, Dr. Daniel explained that she passed on the opportunity to rescore Cady Studios’ proposal because, in her mind, a blank response (or USB drive) equated to a nonresponsive proposal. In other words, she scored what she had been given. Cady Studios’ proposal was “unsatisfactory” because it contained no response to the questions. Dr. Daniel further commented that Cady Studios’ failure to ensure that its proposal was properly copied onto all of its USB drives was irresponsible and unprofessional. This carelessness gave Dr. Daniel apprehension about the quality of service Cady Studios would provide if it could not follow the RFP’s explicit directions. Following the discussion and scoring of the vendors’ proposals, the Evaluation Committee members ranked all 13 vendors by overall total weighted scores. The Evaluation Committee’s final list of vendors and their scores read as follows: Grad Images: 1335 Life Touch: 1290 Leonard’s: 1272.5 Dean Stewart: 1140 Strawbridge: 1095 Josten’s: 1030 Walsworth: 1010 Cady Studios: 720 Barksdale: 715 Nation Wide: 710 Monden Studios: 705 Herff Jones: 670 Ritoba: 585 As shown above, Cady Studios received the eighth highest score. The Evaluation Committee then discussed which vendors it should invite back for informal interviews. After a brief deliberation, the Evaluation Committee reached a consensus that it should extend an interview to the top seven vendors on the scoring list. Dr. Daniel and Ms. Lowder explained that this division was chosen because of the “natural break” in the scores between the seventh ranked vendor (Walsworth) and the eighth ranked vendor (Cady Studios). Ms. Lowder relayed that the relatively large scoring differential between Walsworth (1010) and Cady Studios (720) (nearly 300 points) appeared to separate the top vendors from the others. Therefore, to narrow down the list of vendors to those most qualified to provide the Photography Services, the Evaluation Committee chose this gap as the dividing line. Dr. Daniel relayed that she had previously used this “natural break” scoring technique in cheerleading and dance competitions. Ms. Lowder testified that the RFP did not establish an exact number of vendors the School Board should select to provide the Photography Services. Neither did the RFP state how the vendors were to be condensed, if at all. The Evaluation Committee, however, felt that the number of approved vendors should be limited. A truncated list of vendors would provide a more manageable group for the School Board to oversee to ensure that each vendor offered a similar pricing structure and consistent services. This action would also make it easier for individual schools to select the vendor with which they desired to work. As a result of the Evaluation Committee’s “natural break” methodology, Cady Studios was not grouped with the winning vendors for the Photography Services. As a non-selected vendor, Cady Studios was not authorized to offer Photography Services to the district schools for the length of the RFP contract period (3 to 5 years). Cheryl Olsen serves as the School Board’s Director of Purchasing and Distribution. In this role, she supervised the procurement activities. After the Evaluation Committee’s short- list meeting, Ms. Olsen prepared a “Short List Letter” for the top seven vendors. The letter notified the vendors of their ranking on the short list and invited them back for informal interviews with the Evaluation Committee. On September 22, 2017, Ms. Lowder forwarded Ms. Olsen’s letter to the seven short-listed vendors. The interviews were scheduled for September 28, 2017. On September 28, 2017, the Evaluation Committee met with each of the seven short-listed vendors. Following the interviews, the Evaluation Committee decided that the School Board should offer the Photography Services to all seven short- listed vendors. That afternoon, Ms. Olsen drafted a Notice of Intended Decision announcing the intent to award the RFP to the top seven vendors. Ms. Olsen posted the Notice of Intended Decision on-line through both VendorLink and Demand Star. The Notice of Intended Decision stated: The Purchasing and Distribution Services Department hereby notifies all firms of an intended decision regarding the award of the [RFP] as outlined below or attached. The firms on the attached list will be recommended to the School Board on October 17, 2017 with final contracts to be presented at a future meeting. Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of the proceedings under Chapter 120, Florida Statutes.[6/] Attached to the Notice of Intended Decision was the list of the seven vendors who the Evaluation Committee intended to recommend to the School Board for award of the RFP. Cady Studios was not included on the list. On October 10, 2017, the School Board formally approved an award of the Photography Services to the seven vendors identified in the Notice of Intended Decision. On November 7, 2017, the School Board entered into a Master Services Agreement with each of the seven winning vendors for the Photography Services. The initial term of the Master Services Agreements runs from November 8, 2017, through November 7, 2020. Jimmy Smith works as the Market Vice President for Cady Studios. In his role, Mr. Smith oversees all of Cady Studios’ photography services in Florida. Mr. Smith prepared Cady Studios’ proposal for the RFP. Mr. Smith explained that he is familiar with the competitive solicitation process. He has previously submitted proposals on behalf of Cady Studios for school photography services in Pinellas, Hillsborough, and Brevard Counties. In a typical school portrait arrangement, the parents/students directly pay the studio for the photography services. The studio then pays a commission back to the school. Prior to the RFP, Cady Studios was an approved vendor for the School Board. Cady Studios had worked with approximately four schools in the Seminole County School District. Mr. Smith was also familiar with VendorLink and Demand Star, the on-line platforms the School Board used to publish information regarding the RFP. Mr. Smith learned about the RFP after the School Board had already posted notice of the solicitation on July 18, 2017. However, by August 9, 2017, Mr. Smith had registered Cady Studios with VendorLink, and began receiving the notifications regarding the RFP. On Sunday, September 24, 2017, Mr. Smith found out about the Evaluation Committee’s short-list from another vendor. Mr. Smith then accessed the VendorLink website and spotted the Evaluation Committee’s invitation to the seven top vendors to return for informal interviews. When he discovered that Cady Studios was not included on the list, he concluded that Cady Studios would not be awarded the Photography Services contract. Mr. Smith promptly wrote an e-mail to Ms. Lowder. He asked her for any information as to why Cady Studios did not make the Evaluation Committee’s shortlist. Ms. Lowder received Mr. Smith’s e-mail the following morning on Monday, September 25, 2017. She replied to Mr. Smith both through an e-mail, as well as a phone call. During the phone call, Ms. Lowder offered to meet with Mr. Smith for a “debriefing” to review the Evaluation Committee’s decision. Ms. Lowder did not offer any information as to why Cady Studios was not included with the short-listed vendors. Ms. Lowder and Mr. Smith scheduled the debriefing meeting for Thursday, October 5, 2017. In the meantime, Mr. Smith received the School Board’s Notice of Intended Decision on September 28, 2017. He did not contact Ms. Lowder to reschedule the debriefing meeting. On October 5, 2017, Mr. Smith met with Ms. Lowder and Ms. Olson for the debriefing meeting. They reviewed the results of the Evaluation Committee’s short-list meeting, as well as each evaluator’s scores. During this meeting, Mr. Smith first discovered that one evaluator (Dr. Daniel) scored Cady Studios’ proposal with a “0” in every category. Mr. Smith further learned that Cady Studios received this score because the USB drive Dr. Daniel had been given was blank. At the final hearing, Mr. Smith adamantly declared that all 10 USB drives that he produced for the School Board contained Cady Studios’ proposal. He had no idea why two of the drives were blank when opened by Dr. Daniel and Mr. Durias. Mr. Smith also pointed out (correctly) that the RFP contained no provisions regarding what an evaluator was supposed to do with a blank USB drive. The RFP certainly did not direct the evaluator to score the proposal with all zeros. In his communications with Ms. Lowder, Mr. Smith never indicated that Cady Studios intended to protest the School Board’s ranking of vendors, or challenge the School Board’s decision in any other manner. However, on October 12, 2017, legal counsel for Cady Studios, Jeff Childers (Cady Studios’ counsel in this administrative matter), wrote to Ms. Olsen questioning the results of the RFP. Mr. Childers referenced the fact that one evaluator failed “to assign any points in any category to Cady.” Mr. Childers concluded by requesting that the School Board consider resolving this issue informally by allowing Cady Studios “to join the other seven authorized proposers” to provide Photography Services to district schools. On October 16, 2017, Ms. Olsen responded to Mr. Childers in a letter saying: The Notice of Intent to Award this solicitation was posted on September 28, 2017 at 2:24 p.m. In accordance with School Board Policy 7.71, Resolution of Bid Protests, “Any person who claims to be adversely affected by a proposed award of a bid and who has standing to protest an award of a bid, may file a written notice of protest with the Office of the Superintendent or Clerk of the School Board not later than seventy-two (72) hours of the time of the posting of the bid tabulation.” Ms. Olsen then noted that, as of the date of her letter, Cady Studios had not filed a written notice of protest with the Office of the Superintendent or Clerk of the School Board. At the final hearing, Ms. Olsen (as well as Ms. Lowder) explained that, because the School Board posted its Notice of Intended Decision on Thursday, September 28, 2017, the 72-hour deadline to file a protest fell on Tuesday, October 3, 2017. (Saturday, September 30, 2017, and Sunday, October 1, 2017, are excluded in the computation of the 72-hour time period. See § 120.57(3)(b), Fla. Stat.) The fact that Mr. Smith’s debriefing meeting occurred two days after the 72-hour period had elapsed did not change the protest calculation. As described above, the School Board’s Notice of Intended Decision specifically stated, in pertinent part: Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of the proceedings under Chapter 120, Florida Statutes. Similarly, RFP, General Purchasing Terms and Condition, Paragraph 10, entitled, RFP TABULATIONS, RECOMMENDATIONS, AND PROTEST, addressed the possibility of a bid protest and stated: Failure to file a protest within the time prescribed in Section 120.57(3) Florida Statutes will constitute a waiver of proceedings under Chapter 120, Florida Statutes and School Board Rules.[7/] Paragraph 10 also referenced School Board Policy 7.71, Resolution of RFP Protest, and included a link to the School Board’s policy webpage where the Policy 7.71 could be accessed. Policy 7.71, Section V, states: Notice of Protest - Any person who claims to be adversely affected by a proposed award of a bid and who has standing to protest an award of a bid, may file a written notice of protest with the Office of the Superintendent or Clerk of the School Board not later than seventy-two (72) hours of the time of the posting of the bid tabulation. In the event notice of intent to award a bid is issued by certified mail or express delivery service return receipt requested, the notice of protest must be filed on or before 4:30 p.m. on the third day following the date of receipt of the notice. In computing the deadline for filing, Saturdays, Sundays, and legal holidays observed by the School Board shall be excluded. Despite Ms. Olsen’s letter, as well as the language regarding protests in the RFP and the Notice of Intended Decision, Cady Studios formally filed a Notice of Protest with the School Board on November 9, 2017. At the final hearing, Mr. Smith acknowledged that 72 hours following the Notice of Intended Decision (not including Saturday and Sunday) fell on October 3, 2017. Therefore, to explain the delay in submitting Cady Studios’ Notice of Protest, Mr. Smith testified that he did not become aware of the material deficiencies in the Evaluation Committee’s review of Cady Studios’ proposal until he met with Ms. Lowder on October 5, 2017. Mr. Smith further admitted that he was not fully aware that Cady Studios only had 72 hours in which to protest the Notice of Intended Decision. Instead, he relied on Ms. Lowder to explain the RFP process, as well as the basis for the Evaluation Committee’s selection of the winning vendors. Consequently, Mr. Smith asserted that Cady Studios “was misled or lulled into inaction by” the School Board’s (Ms. Lowder’s) action of not scheduling a debriefing meeting until two days after the 72-hour protest window had closed. Mr. Smith maintained that if he had been informed of the deadline, Cady Studios would have filed immediately. Mr. Smith conceded that he was familiar with the protest language contained in the RFP’s General Purchasing Terms and Conditions, and was generally aware that the RFP referred to section 120.57(3). Mr. Smith further disclosed that he had read RFP, Paragraph 10, which identified Policy 7.71. However, he did not click the link to actually read the policy. Mr. Smith estimated that, by not making the School Board’s list of approved vendors for the Photography Services, it will lose approximately $2,000,000 worth of business and opportunity costs every year over the life of the contract. At the final hearing, Ms. Lowder responded to Mr. Smith’s testimony by pointing out that, even if Dr. Daniel had awarded Cady Studios with a “1” in each category, Cady Studios’ score would only have increased to 820. As the next lowest score to Cady Studios was 1010, Cady Studios’ adjusted score would still have fallen significantly below the top seven vendors. Continuing to conjecture, Ms. Lowder commented that if Dr. Daniel had given Cady Studios scores similar to the lowest score awarded by the other committee members, Cady Studios’ score would have equaled 935. This score is still below the “natural break” threshold of 1010. On cross examination, however, Ms. Lowder agreed that if Dr. Daniel awarded Cady Studios scores similar to the highest score awarded by the other committee members, Cady Studios would have received a score of 990--much closer to, but still below, the “natural break.” Ms. Lowder and Ms. Olsen also remarked that November 9, 2017, the date Cady Studios eventually filed its Notice of Protest, was 27 business days after the deadline to file a bid protest (and 25 business days after Mr. Smith learned the Evaluation Committee’s scores at the debriefing meeting). Cady Studios’ Notice of Protest was also submitted after the School Board had entered into a Master Service Agreement with each of the seven winning vendors. As discussed in detail below, the evidence presented at the final hearing establishes that Cady Studios failed to timely file its notice of protest within 72 hours after the School Board posted its Notice of Intended Decision. Further, Cady Studios did not prove that it may circumvent the filing deadline based on the defense of equitable tolling. Therefore, Cady Studios’ challenge of the School Board’s intended award of the Photography Services must be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board enter a final order dismissing Cady Studios’ protest as untimely filed. DONE AND ENTERED this 23rd day of January, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2019.
The Issue Whether Respondents failed to abide by various minimal technical standards applicable to the practice of surveying and mapping, in violation of Florida Administrative Code Rules 5J- and 5J-17.052, or were guilty of negligence in the practice of surveying and mapping, all in violation of section 472.0351, Florida Statutes (2012),1/ and if so, what is the appropriate sanction.
Findings Of Fact The Department is the state entity charged with regulating the practice of land surveying and mapping, pursuant to chapter 472, Florida Statutes. At all times material to this case, Mr. Haas was licensed as a professional surveyor and mapper in the state of Florida, with license number LS3708. Mr. Haas was employed by Exacta, which holds license number LB7337. A complaint was filed with the Department on January 27, 2014, by Mr. Charles B. Hatcher of Associated Surveyors, Inc., alleging numerous minimum technical standards errors on a survey prepared by Mr. Haas on September 25, 2012. Petitioner has failed to prosecute Mr. Haas or Exacta for the violations alleged in the complaint made by Mr. Hatcher, on January 27, 2014. Administrative complaints alleging identical counts were filed against Mr. Haas and Exacta. Count I alleges that some of the field data was not dated. Count I also alleges that the coordinates are not on the same datum as the survey, and thus, the survey map cannot be substantiated. Page 12 of Exhibit P-1, a page of computation notes, does not contain the date the information was observed and collected. Further, it is clear that page 12 is not simply a continuation of pages 10 and 11 (which are two halves of the same document) but is instead a separate document that is undated. Data shown in the raw data file and coordinates list differed from that reflected on the survey map. It appeared, however, that the data had been rotated and translated. Rotation and translation is an accepted survey technique which allows modern instrumentation to record data based upon an assumed initial point and bearing, and then calculate all further points and bearings relative to that initial measurement. This information recorded by the instrument must then be rotated and translated back to match the actual points and bearings on a parcel. The Department failed to show that the survey map could not be substantiated. As Mr. Gloer testified during cross examination: Q. My question is, wasn't it clear to you that the assumed bearing that Mr. Blackmon made, our party chief, on page 4 in his instrument-–in his data collector between Points 1 and 2 of a bearing of north zero degrees, or an azimuth of north zero degrees--isn't it clear to you that then in order for it to make sense on this drawing and all the other lines too, that you would have to rotate that to get on the same bearing basis? Doesn't that jump out to you as an expert, having done over 2,000 surveys? A. At the time two years-–well, it's been a year. A year ago when I did this original review, I based it on the data that was supplied to me. Now that you have explained it to me and I see that there is a note here that said they rotated it, yes, it's clear to me now, yes. Count II alleges that the field notes that are dated show a date of 9/24/12, while the survey drawing shows a field work date of 9/25/12. The parties stipulated as to the different dates shown on these documents.2/ The dated field notes show that field work was performed on September 24, 2012. The clear and convincing evidence is that the date of data acquisition was September 24, 2012, while the date on the survey drawing is September 25, 2012. Count III notes that the survey shows a found 3/4" iron rod at the point of beginning, notes that this appears to be the same corner shown on the coordinate list as point number 8, and states that the field notes do not show the setting or locating of the corner. The complaint concludes that this corner is not supported by accurate survey measurements. The notation "P.O.B." is found at the lowest corner of the property on the survey map, and underneath the corner is found the note "3/4 FIR NO ID." According to the Surveyor's Legend found on page 2, this indicates that the point of beginning is marked by a 3/4 inch found iron rod without identification, as Mr. Gloer testified. While page 12 shows a point marked as "set #8 @ DEED Dist/Dist frm 5 & 152" on the lot corner, it indicates this monument was set, and does not indicate a found iron rod. Point "6" has no notation at all on page 12 and does not appear to be aligned on the southeast property line, but point 6 is reflected in the raw data file and the coordinates list. The measurements to point 6, and description of it, are consistent with and support the property corner marked as the P.O.B. on the survey map. Count IV alleges that bearings shown on the survey as measured are not substantiated by the survey measurements in the raw data or coordinate list. Mr. Gloer testified that he inversed the data from the coordinates and that the bearings were different. However, as he admitted, he did not consider that the recorded survey measurements might reflect an assumed initial location and bearing and that they would therefore need to be rotated and translated to substantiate the bearings shown on the survey map. The Department failed to show by clear and convincing evidence that the bearings shown on the survey were not substantiated by measurements. Count V alleges that the three points used to locate the improvements, monumentation, and control for the survey are not part of a closed traverse and are not based on redundant measurements. As Mr. Gloer testified, the distance between points 1 and 2 was verified by redundant measurements: once measuring the distance from point 1 to point 2, and once measuring the distance from point 2 back to point 1. However, the angle created between points 2, 1, and 150 was not similarly measured on more than one occasion or from the opposite direction. Respondents argue that use of an instrument such as the robotic total station used here, which takes numerous measurements very quickly and then averages them, is, by definition, taking redundant measurements. However, Mr. Gloer testified that in his expert opinion, "redundant" measurement has a more specific meaning. It requires that an "independent check" be made. He noted that if a rodman had the rod on his toe, all of the measurements almost instantaneously taken and averaged by an instrument would reflect the same incorrect information and so these multiple readings would not serve the purpose of revealing the mistake and preventing the error. Only an independent measure, like shooting the distance backwards, would likely reveal the error and thus meet the purpose of a "redundant" measurement. The angle created between points 2, 1, and 150 was not verified by redundant measurements. Count VI alleges that the survey is based on found monumentation on the parcel being surveyed. No attempt was shown to find the point of commencement or boundary monumentation along the boundary of Beauclerc Gardens Replat, both of which are called for in the description. The legal description provides in part, "commence at an iron pipe located in the northeasterly line of Section 40, Township and Range aforementioned, at a point where said line is intersected by the line dividing Sections 31 and 32." Mr. Gloer testified that to ensure that the position of the boundary of real property was determined in complete accord with this real property description, an attempt to find the point of commencement and the boundary of Beauclerc Gardens Replat was required, and that there was no evidence that this was done. However, no evidence was presented to indicate that the survey as conducted was not in complete accord with the property description as attached to the survey map. Count VII alleges that the survey does not tie to an established identifiable real property corner. As Mr. Gloer testified, the parcel being surveyed was described by metes and bounds. Nothing on the survey tied into any identified corner of Beauclerc Gardens. The survey did not tie into a real property corner of either lot 1 or 2 of Beauclerc Gardens, which were the closest lots. Instead, the survey was tied to a monument on the line south of Beauclerc Terrace on that right-of-way, identified on page 12 as point "151." That point was not an established identifiable real property corner of Beauclerc Gardens. As Mr. Gloer testified, the survey did not tie to an established identifiable real property corner. Count VIII alleges that the field notes and raw data do not show either the fence corner or the water meter that supposedly made the two nearby corners inaccessible. The computation notes at page 12 and the survey map on page 1 do not show a monument set at the most easterly corner of the lot, but they do show an offset point and reasonably indicate that a water meter is at the corner. Similarly, neither the computation notes nor survey map show a monument set at the most westerly corner of the lot, but the survey map shows an offset monument and has an indication that there is a fence post at the corner. Mr. Gloer noted that neither the water meter nor the fence post, if they existed, had been positively located on the field notes or raw data as being at the corners.3/ Mr. Gloer noted that the coordinates list indicated that the location of the water meter was calculated. Count IX alleges that there is a monument shown in the field notes, point number 6, but not shown on the survey. As discussed earlier in connection with Count III, the field computation notes appear to show two monuments in fairly close proximity to the southernmost corner of the property. The survey map at page 1 shows only one monument at this corner, labeled "P.O.B." and described as "3/4 FIR NO ID" which, as noted above, refers to a 3/4 inch found iron rod without identification. This descriptive information appears to correlate with the side shot of point 6 found on page 6 of the raw data file and page 9 of the coordinates list. While the field notes are confusing, the Department did not show by clear and convincing evidence that point number 6 was not shown on the survey. Count X alleges that all the monuments were tied by side shots without a redundancy of the measurements. The raw data at page 4 indicate that the 1/2 inch found iron pipe and cap marked with "R. Miller," which is shown as the easternmost monument on the survey, was located by a side shot, a single measurement, and that Mr. Blackmon only turned one angle and one distance to that point. Similarly, the data at page 5 show that the 1/2 inch found iron pipe with no identification which is shown as the northernmost monument on the survey was located by a single side shot. Again, the data on page 6 show that the 3/4 inch found iron rod without identification which is shown as the southernmost monument and point of beginning on the survey was located by a side shot. The data sheets show no other ties to these points taken from another position, or otherwise demonstrate that redundant measurements were taken. Count XI alleges that the survey dated September 25, 2012, was negligently prepared. On this point, the Transcript records: Q. And then one final question, Mr. Gloer. In your professional opinion, expert opinion, do you believe that these ten MTS violations that you have discovered, taken as a whole constitutes-–of the minimum technical standards, taken as a whole, constitutes negligence in the practice of surveying and mapping in the State of Florida? A. I do. This question and answer, predicated on considering ten other violations as a whole, offers no insight as to whether a fewer number of violations might constitute negligence, or whether some of the violations are so serious, or are of such a nature, that they might do so even standing alone. No evidence was introduced at hearing to indicate that Mr. Haas' professional license has been previously disciplined. Exacta was the subject of five earlier administrative complaints alleging violations of Minimal Technical Standards, which were the subject of a Settlement Stipulation. Given the terms of the stipulation, there is no competent evidence showing that Exacta committed prior offenses. However, the Corrected Final Order Approving Settlement Stipulation constitutes prior disciplinary action against Exacta.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services, Board of Professional Surveyors and Mappers: Finding Wesley Brian Haas and Exacta Land Surveyors, Inc., in violation of section 742.0351(1)(h), Florida Statutes, for failing to conduct surveying and mapping in accordance with the minimum technical standards prescribed by Florida Administrative Code Rules 5J-17.051(2)(b)3., 5J-17.051(3)(b)3., 5J-17.051(3)(b)15.b.(II), 5J-17.052(2)(a)8., and 5J- 17.052(2)(b)7.; imposing an administrative fine of $1500.00 on Wesley Brian Haas; and imposing an administrative fine of $4000.00 on Exacta Land Surveyors, Inc. DONE AND ENTERED this 14th day of April, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2015.
The Issue The central issue in case no. 91-7302 is whether the Respondent is guilty of the violations alleged in the administrative complaint dated October 14, 1991; and, if so, what penalty should be imposed. The central issue in case no. 91-8259 is whether the Respondent is guilty of the violations alleged in the administrative complaint dated November 11, 1991; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to this case, Respondent has been licensed as a land surveyor in the State of Florida, license no. LS Respondent signed and sealed three surveys for property belonging to Mr. and Mrs. Michael Lengfellner. Those surveys (received in evidence as Petitioner's exhibits 2, 3, and 4) were prepared and certified by Respondent to be in compliance with the Minimum Technical Standards found in Section 472.027, Florida Statutes, and Chapter 21HH-6, Florida Administrative Code. With regard to Petitioner's exhibit 2, the survey drawing shows a 90 degree right angle corner at the northeast property corner when that angle should have been depicted at the southeast corner. The plat for the property shows the 90 degree corner at the southeast corner. Further, the survey reflects incorrect bearing and distances along the easterly property line. Additionally, the angular data provided for the non-radial side of the property lines is not shown on the survey. When a non-radial line is shown, additional information must be given to clarify the dimensions. Such information is not shown on Petitioner's exhibit 2. With regard to Petitioner's exhibit 3, the Respondent, again, did not provide the non-radial line angular data. More specifically, no data was depicted showing the delta, radius, and arc, or chord bearing or angle. With regard to Petitioner's exhibit 4, the Respondent, again, omitted the non-radial line data described above. Further, while Respondent's field notes state the survey was tied to a permanent reference monument, that information was not depicted on the survey drawing. Bearings for the well- defined line relied upon by Respondent were not indicated on the drawing. The survey drawing also did not compare the measured direction and distances in relation to the recorded direction and distances. Finally, this survey failed to provide a legend for abbreviations used in the drawing. Any abbreviation not listed by rule must be explained in a legend. Respondent signed, sealed and certified the survey drawing identified as Petitioner's exhibit 7. With regard to Petitioner's exhibit 7, the Respondent failed to depict the partial lot distances in the survey drawing. The fractional parts of the lots (lots 14 and 15) were not shown on the drawing. Fractional parts of a lot excluded from the surveyed description should be dimensioned. Respondent did not show the distance to the nearest street line or identifiable reference in Petitioner's exhibit 7. Nor did the survey drawing depict the distance to a well defined corner or block corner. In short, the survey did not reference an identifiable point. The Respondent did not provide a legend for the survey drawing, Petitioner's exhibit 7, which explained all abbreviations used on the drawing. The fence depicted on the west boundary of the lots is not related to the boundary lines. Since the fence is pertinent to the survey, the relationship of the fence to the boundary lines should be explained on Petitioner's exhibit 7. Respondent failed to refer Petitioner's exhibit 7 to a specific well- established line. Respondent did not disclose the type of survey performed on Petitioner's exhibit 7. Respondent signed, sealed, and certified the survey drawing identified as Petitioner's exhibit 9. With regard to Petitioner's exhibit 9, Respondent failed to identify the type of road (public or private) depicted on the survey. Further, the first course of the legal description was not shown on the survey drawing. Even if the first course were an easement, it should be depicted on the drawing to reflect the property's access interest as that property is described in the legal description for the parcel. The errors or omissions noted above catalog the instances where Respondent failed to comply with the minimum technical standards for surveys.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Professional Land Surveyors enter a final order finding the Respondent guilty of having violated Section 472.033(1)(h), Florida Statutes, and imposing an administrative fine in the amount of $1500.00. DONE and ENTERED this 30th day of June, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1992. APPENDIX TO CASE NOS. 91-7302 AND 91-8259 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: Paragraphs 1 through 4 are accepted. Paragraphs 5 and 6 are rejected as comment, argument, or irrelevant. The first sentence of paragraph 7 is accepted, the remainder rejected as conclusion of law or recitation of rules. Paragraphs 8 through 11 are accepted. Paragraph 12 is rejected as a conclusion of law. Paragraphs 13 through 17 are accepted. Paragraphs 18 and 19 are rejected as conclusion of law. Paragraph 20 is accepted. Paragraph 21 is rejected as statement of the rule, not fact at issue. Paragraph 22 is accepted except as to the conclusion of law of the violation. Except as to the conclusion of law and the recitation of the rule, paragraph 23 is accepted. Paragraphs 24 and 25 are accepted. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 26 is accepted. Except as to the conclusion of law regarding a violation, paragraph 27 is accepted. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 28 is accepted. Paragraph 29 is rejected as irrelevant or contrary to the weight of the evidence; the paragraph is vague as it does not specify to which "above abbreviations" it refers. Paragraphs 30 and 31 are accepted. Paragraph 32 is rejected as comment, not fact in dispute. Except as to the conclusion of law regarding a violation, paragraph 33 is accepted. Except as to the conclusion of law regarding a violation, paragraph 34 is accepted. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 35 is accepted. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 36 through 42 are accepted. Paragraph 43 is rejected as comment or irrelevant. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 44 through 51 are accepted Paragraphs 52 and 53 are rejected as repetitive, comment, or irrelevant. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 54 through 65 are accepted. Paragraphs 66 through 71 are rejected as argument, conclusion of law or comment. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: 1. None submitted. COPIES FURNISHED: William S. Cummins Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Gary D. Hunt 247 Lake Ellen Drive Casselberry, Florida 32707 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Land Surveyors 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
