The Issue The issue for determination is whether Celina Hills Property Owner’s Association (the Association) violated the Fair Housing Act, in its enforcement of the Association’s deed restrictions. The Association refused to allow a homeowner within the Association’s community to put a fence around the front of the homeowner's property to accommodate the disability of the homeowner's son. A secondary issue, if the Association violated the Fair Housing Act, is whether the Association's action is sufficient to permit the award of damages to the Florida Commission on Human Relations (FCHR) for frustration of agency purposes in this matter.
Findings Of Fact Sheila and Fred Swasey purchased a home in the Celina Hills Community in 2001, where they currently reside. When they purchased their home, the Swaseys had full knowledge that the home was part of a homeowner’s association which had certain deed restrictions and covenants. The Swaseys furthermore understood that they were subject to the deed restrictions, and at the time of purchase, had no concerns regarding such restrictions. One such restriction was that they could not have a fence in the front yard of their property. The Swaseys have a 22-year-old, mentally retarded son, named Brad. The Swasey’s son has the mental capacity of a two- year-old, certain gait difficulties, and by stipulation of the parties, qualifies under the applicable Fair Housing Act as a handicapped individual in that he has physical and mental impairments that substantially limit one or more major life activities. The Association is a not-for-profit corporation organized in the mid 70's for the sole purpose of operating and maintaining the Celina Hills Community. Every home owner in Celina Hills is a member of the Association, and is subject to the deed restrictions, and covenants that attach to each of the properties within the Association. The Association is operated by a board of directors, which consists of volunteer homeowners, and is charged with the responsibility of enforcing the covenants, restrictions and other governing documents of the Association. The Association, through its officers, was fully aware of Brad's disability. As established by testimony of two of Brad’s doctors, Brad has the mental capacity of a young child approximately two to three years old. Although in the short term his mental capacity has stabilized and will probably not improve, his long- term capacity will be accelerated in regard to dementia, making him much harder to control or exhibit control. The supervisor of Brad’s sheltered workshop testified that, based on her observations, she believes he has the mental capacity of less than a two or three year old. Brad has recently, within the last 3 years, grown dramatically (from 5’3”/160 pounds to 6’2”/240 pounds) and, although he walks with a wide gait and has trouble walking on uneven surfaces, has become significantly harder to control and catch. His parents are in their fifties, and increasingly, subject to the health deficits imposed by the process of aging. Brad’s doctors have advised the Swaseys to have Brad spend time outside, breathe fresh air and get exercise. Brad’s parents’ testimony and observation of Brad at the final hearing establishes that he has the capacity of a two-year-old, but with no fear and no understanding of dangers that confront him in life. Further, he has only recently exhibited a predilection to run towards the street and trucks and cars that attract his attention. Brad is attracted to trucks and cars, especially yellow school buses and blue mail trucks, and attempts to run towards them when possible. With regard to motorists going up the hill on the street in front of the Swaseys and Brad’s home, visibility from the road to the yard (and yard to the road) is poor and cars on the street drive fast. The Swaseys’ home is located in the middle of the block and not at an intersection. The decision of the Swaseys to fence their front yard results in the provision of the best setting for Brad to fully enjoy the premises and gain needed fresh air and exercise. This choice by the Swaseys also provides better observation for them over Brad and more shade and opportunities for him to observe surrounding life and activities. Such a fence would protect Brad from running into the street and provide his parents an opportunity to allow Brad some “independence” while still being under their direct supervision when they work in the front yard. The fence would also keep him from running away from them into the street before they can catch him. Such a front yard fence requires an accommodation from the Association in order to build higher than the Association's allowable three feet and also along the required county set-back line for fences. The Swaseys' backyard has severe slopes, contains the screened-in pool and is generally unusable as an outside area for Brad because of his walking disability. Nevertheless, his parents also plan to fence the side and back- yards as well, which requires only the standard approval as to style, material and installation and no accommodation. Should they fence just the back and side yard, however, a problem would result in the form of entry problems, since the only direct entry to the backyard is through the pool area. Such an entry would redirect Brad’s attention to areas of the home and yard where the pool is located. Unfortunately, the backyard alone would not allow Brad full enjoyment because of the nature of the property (uneven with major slopes) and his walking disability. Further, direct observation of Brad would be difficult in some areas, if not impossible. On April 8, 2003, Brad's mother submitted a written request to the Association for a fence on the front, side and backyards. She also indicated that they would have the fence removed if they ever sold the house. On May 1, 2003, the Association's Board of Directors had a meeting at which Brad's father presented the request of he and his wife. Simply put, their request was to erect a front fence in a wooden picket style and an electric wood-faced gate for the front of the property (more in keeping with the covenants and restrictions placed on the property). As affirmed by Brad's father at the final hearing, he has no desire to denigrate property values in the community due to his own home investment. This summarizes the request of Brad's parents for need of an accommodation from the Association. The relevant restriction for which an accommodation was requested is found on page 6 of the Celina Hill’s Property Owners Handbook (January 2002 edition) which provides: No fence or wall shall be erected or maintained in the front beyond the front building setback line. No wire, chain link, or cyclone is permitted on any lot. No fence or hedge over three (3) feet in height shall be permitted along the front. No fence or hedge shall be erected or maintained which shall: i) unreasonably restrict or obstruct sight lines at corners and at intersections or driveways with streets; ii) detract from the overall appearance of the property (the use of rough hewn woods or natural plantings as fencing and screening materials is encouraged); or iii) stand greater than four (4) feet in height. The Swaseys met all conditions, except for the deed restriction, in their request for a front yard fence. As established by witnesses for the Swaseys, inclusive of the school bus driver who frequently drives a school bus by the Swaseys' property, there are no safety concerns about the proposed front yard fence obscuring motorists' view since it is not going to be at an intersection. On May 24, 2003, the Association denied the Swaseys' request stating that, “We cannot authorize your request for a fence of any style in your front yard, the Celina Hills Homeowners manual makes clear that no fence can be installed beyond the front setback line and that setback line is the front of your house.” In the same letter, the Association indicated it had no problem with the Swaseys' pursuing fencing the side and backyards since there was no deed restriction and only a style, materials and installation review. On June 18, 2003, FCHR issued a determination that there was reasonable cause to believe that the Association was engaging in a discriminatory housing practice in violation of Section 760.23, Florida Statutes. FCHR’s efforts to conciliate the case failed as stated in its Notice of Failure of Conciliation on July 30, 2003. FCHR also placed into evidence its calculation of damages, in addition to attorney’s fees and costs to be determined upon completion of the case, for “frustration of agency purpose.” These damages were calculated at $1,035.40 consisting of $358.70 for 20.6 investigative hours; $600.00 for legal review and advisor hours; $66.70 in direct travel costs; and $10.00 in photographic development costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order finding Respondent guilty of a discriminatory housing practice against the Complainant and her son in violation of Section 760.23 (7) and (9), Florida Statutes; prohibiting further unlawful housing practices by Respondent; and allowing the building of an esthetically acceptable fence in the front yard as necessary to provide containment and safety for Brad Swasey to use and enjoy his dwelling, with the proviso that such fence be removed when Brad is no longer a regular resident in the Swasey home. DONE AND ENTERED this 1st day of December, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 1st day of December, 2003. COPIES FURNISHED: Barry A. Postman, Esquire Cole, Scott & Kissane, P.A. Pacific National Bank Building 1390 Brickell Avenue Miami, Florida 33131 Sheila Swasey 2125 East Celina Street Inverness, Florida 34453 William J. Tait, Jr., Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301-4830 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Holmes Nursery & Gardens Associates, LTD., is a wholesale and retail nursery providing a variety of landscape agricultural products. The east coast regional office for Petitioner is located at 1600 SW 20th Street, Fort Lauderdale, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highways Delray Beach, Florida. Respondent, Garden of Eden is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about April 23, 1986, Garden of Eden ordered and received delivery of $1770.00 worth of agricultural products from Petitioner. This purchase consisted of four viburnum odo., five weeping podocarpus and one bottlebrush. On or about April 25, 1986, Garden of Eden ordered and received delivery of $420.00 worth of agricultural products from Petitioner. This purchase consisted of three live oaks. On or about April 28, 1986, Garden of Eden ordered and received delivery of $312.50 worth of agricultural products from Petitioner. This purchase consisted of twenty-five viburnum odo. On or about April 29, 1986, Garden of Eden ordered and received delivery of $520.00 worth of agricultural products from Petitioner. This purchase consisted of four laurel oaks. On or about May 5, 1986, Garden of Eden ordered and received delivery of $1,130.00 worth of agricultural products from Petitioner. This purchase consisted of forty-seven crinum lily and six hundred and twenty-two liriope muscari. On or about May 13, 1986, Garden of Eden ordered and received delivery of $2,943.00 worth of agricultural products from Petitioner. This purchase consisted of seven cattley grava, and six paurotes. On or about May 28, 1986, Garden of Eden ordered and received delivery of $315.00 worth of agricultural products from Petitioner. This purchase consisted of one roebelinii single and one roebelinii double. On or about June 19, 1986, Garden of Eden ordered and received delivery of $300.00 worth of agricultural products from Petitioner. This purchase consisted of one paurotis 5 stem. The total amount of the agricultural products purchased by Garden of Eden was $7,710.50. On August 8, 1986, Garden of Eden paid $1060.00 on the account. On September 24, 1986, another $2500.00 was remitted to Holmes Gardens on this account. The balance of indebtedness owed by Garden of Eden to Holmes Gardens for the purchases listed above is $4,150.00. Petitioner claims it is due an additional sum of $436.04 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry; however, no written agreement or acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
The Issue Whether Petitioner's license to operate an assisted living facility should be renewed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to Chapter 400, Florida Statutes. Orchard Meadows is an assisted living facility (ALF) which is owned by Nathaniel Gallon, and is located in Monticello, Florida. Prior Case and Administrative Fine In a prior case involving AHCA and Nathaniel Gallon, d/b/a Orchard Meadows, AHCA issued a Final Order dated September 27, 2001. The Final Order incorporated by reference a Settlement Agreement entered into between the parties, which read in pertinent part: The Respondent agrees to pay half of the administrative fine imposed, in the amount of seven thousand eight hundred seventy-five ($7,875) dollars, to be paid within sixty (60) days of entry of the Final Order adopting this settlement stipulation agreement. The Respondent agrees to maintain the facility in substantial compliance with all applicable statutes and rules governing assisted living facilities, as determined by the Agency field office manager, for a period of one year from the entry of the Final Order incorporating this settlement stipulation agreement. In the event that the conditions in paragraph 6 and 7 are not met, the following consequences shall result: the remaining seven thousand eight hundred seventy-five ($7,875) dollars outstanding from the administrative fine initially imposed by the Agency in the amount of fifteen thousand seven hundred fifty ($15,750) dollars, shall become due immediately. the Agency shall consider Respondent ineligible for renewal of licensure as an assisted living facility based on the demonstrated inability to comply with requirements of continued licensure. Eula Fogle is the Administrator of Orchard Meadows and has been in that position since May of 2000. According to both Mr. Gallon and Ms. Fogle, Orchard Meadows made efforts to acquire the funds to pay the $7,875.00 administrative fine referenced in paragraph 6 of the stipulation but acknowledge that they were unable to do so within the 60 days following the entry of the Final Order referenced above. However, a few days after the 60-day time period expired, they were able to acquire the funds and Ms. Fogle personally took a check for $7,875.00 to Mr. Rice at AHCA. AHCA did not accept the check but referred Ms. Fogle to the agency's lawyers. Ms. Fogle attempted to get in touch with the appropriate agency lawyer(s) in an effort to pay the fine but was unsuccessful in doing so. License renewal Orchard Meadows first received a license to operate an ALF by AHCA effective December 23, 1994. Orchard Meadows renewed its license and was issued a conditional license from December 23, 1996 through March 22, 1997. Orchard Meadows received a standard license for the period March 23, 1997 through December 22, 1998. On August 18, 1999, AHCA sent a letter to Orchard Meadows enclosing a standard renewal license #AL8362 issued for the period December 23, 1999 to December 22, 2002. Greg Rice is a Government Operations Consultant III in the Assisted Living Licensing Office of AHCA. According to Mr. Rice, ALF licenses are issued for two-year periods. Thus, the license issued from December 23, 1999 until December 22, 2002, was issued in error. On October 25, 1999, AHCA sent another letter to Orchard Meadows with a standard renewal license enclosed. The letter stated that the enclosed license was being issued to correct the dates of the one previously sent. The letter also requested that Orchard Meadows return the license previously issued. The renewal standard license #AL8362 was issued for the period December 23, 1998 until December 22, 2000, which resulted in a two-year licensure period beginning one year prior to the first renewal license and ending two years earlier. On July 31, 2000, AHCA sent a letter to Orchard Meadows notifying Petitioner that the license to operate expired December 22, 2000. The letter instructed Orchard Meadows to complete an enclosed application and return it with the appropriate fee 90 days before the expiration date. The letter further stated that failure to file a renewal application within that time frame will result in a late fee as allowed by law. The return-receipt card was signed by Demetria Poe on August 2, 2000. Ms. Poe is a former employee of Orchard Meadows and did not testify at the hearing. There is no evidence of any correspondence from AHCA to Orchard Meadows regarding the license status between the July 31, 2000 letter and a January 11, 2002 letter, a period of approximately one and one-half years. Despite the position by AHCA that the license expired December 22, 2000, AHCA continued to come to the facility to conduct surveys during the period of time in which AHCA contends that Orchard Meadows was operating without a license. According to Ms. Fogle, AHCA's most recent survey of the facility was conducted four to six months prior to the final hearing date. Mr. Rice's explained why Orchard Meadows was permitted to operate: Q. And even though that renewal was not submitted, they were permitted to continue to operate because they were in litigation; is that correct? A. Yes. Q. Okay. And so, because they were in litigation and because there was a settlement that needed to be complied with, is that the reason that there was no further notice to the facility after the July 2000? A. Yes. On January 11, 2002, AHCA sent a letter to Eula Fogle, Administrator of Orchard Meadows. The letter notified Ms. Fogle that the license to operate Orchard Meadows expired on December 22, 2000, and that no renewal application had been filed nor had the license fee been paid. The letter instructed Ms. Fogle to cease and desist operating Orchard Meadows. Ms. Fogle was surprised to receive the January 11, 2002 letter as the license with the 2002 expiration date was on the wall of the office in Orchard Meadows. According to Ms. Fogle, she was unaware of the July 31, 2000 letter signed for by the former employee, Demetria Poe, or of the license with the expiration date of December 22, 2000, that was issued in 1999. It was her understanding that Orchard Meadows' license was current until December 2002. Orchard Meadows filed a renewal application in early 2002. The record is not clear as to the exact date it was filed. However, Mr. Rice established that it was filed sometime subsequent to the January 11, 2002 letter from AHCA to Orchard Meadows. On February 27, 2002, AHCA issued the subject Notice Of Intent to Deny Orchard Meadows' renewal of their ALF license, which states as follows: Dear Ms. Fogle: It is the decision of this Agency that your renewal application for an assisted living facility (ALF) license be DENIED. The Specific Basis for this determination is: The applicant's failure to submit a completed renewal license application within the specified time frames pursuant to Section 400.414(1)(i), Florida Statutes (F.S.), and Section 400.417, F.S. Specifically, the applicant failed to provide proof of liability insurance and failed to pay an outstanding fine in final order status (AHCA Case No's: 02-00-063-ALF, 02-00-004-ALF, 02-00-016-ALF and 02-00-053- ALF). The omitted information was requested by the Agency in a certified letter dated February 4, 2002, received by the applicant on February 6, 2002. The applicant failed to submit the required information to the Agency by February 25, 2002. No proof was presented at hearing describing any omissions request as referenced in the Notice of Intent to Deny. Nonetheless, Orchard Meadows' current liability insurance is with United National Insurance Company with an effective date of March 27, 2002 until March 27, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order requiring Orchard Meadows to pay the $7,875.00 fine and any renewal application fees, including any appropriate late fees, within 30 days of the issuance of the final order. Upon payment of the fine and license fees, Orchard Meadows' license should be renewed. If the fine and license fees are not paid within 30 days of the final order, the renewal application of Orchard Meadows should be denied and Orchard Meadows should cease operations as a licensed assisted living facility. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 16th day of September, 2002. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Lee Dougherty, Esquire 245 East Washington Street Monticello, Florida 32344 Leland McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Valinda Clark Christian, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue The issues are whether the Department of Transportation may declare Petitioner non-responsible and ineligible to bid on Department contracts based upon Petitioner's alleged unsatisfactory performance and default on Department contract number E-5G08; and if so, for what period of time should Petitioner be declared non-responsible.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner is a Florida corporation whose principal business is road and bridge maintenance. Petitioner also does some landscape installation work. Petitioner's president is Charles Welch. Petitioner has received between ten and 20 contracts from the Department since 1993. However, the contract at issue in this proceeding is the first landscape installation project that Petitioner has done for the Department. The Department is the state agency responsible for maintaining and regulating the use of the right-of-way along the state highway system. That responsibility includes overseeing the installation and maintenance of landscaping within the right-of-way. Department Contract No. E-5G08 In November 2001, the Department awarded Petitioner a contract to install landscaping around six interchanges in the central Florida area. The interchanges were identified and prioritized in the bid specifications as follows: (1) I-95/US 192 interchange; (2) I-4/Lake Mary Boulevard interchange; (3) SR 25/SR 200 interchange; (4) SR 482/SR 435 interchange; (5) I-95/SR 518 interchange; and (6) US 441/SR 46 interchange. The SR 482/SR 435 interchange was subsequently deleted from the project, and the I-4/Lake Mary Boulevard interchange was subsequently prioritized ahead of the I-95/US 192 interchange. The Department's contract identification number for the project was E-5G08. The contract required Petitioner to prepare and mulch 66,667 square yards of beds for the landscaping and then to install a total of 63,667 plumbago shrubs and 927 sabal palm trees. The plumbagos were required to be ten to 18 inches in height, and the palm trees were required to be nine to 20 feet in height. Petitioner did not challenge the specifications for the project. Petitioner bid $745,160.90 for the contract, and the Department accepted the bid at that amount. Petitioner's bid amount was calculated by multiplying a unit price for each plant type by the number of plants required under the contract, plus a unit price for the mulching/bed preparation multiplied by the total number of square yards in the beds. No separate amount was bid by Petitioner for "maintenance," and the bid form did not include a separate line for that item. The contract generally described the work to be performed by Petitioner as "furnish[ing] and install[ing] palms, plants and associated landscape materials at various locations." A similar description of the project was provided on the first page of the bid specification package. The contract and the bid specification package incorporated by reference the 2000 edition of the Department's Standard Specifications for Road and Bridge Construction (Standard Specifications). Mr. Welch was generally familiar with the Standard Specifications as a result of the prior contract work that he and Petitioner had done for the Department. He understood that the Standard Specifications were part of each Department construction and maintenance contract. Section 580-10 of the Standard Specifications, entitled "Contractor's Responsibility for Condition of the Plantings," requires the contractor to: [e]nsure that the plants are kept watered, that the staking and guying is adjusted as necessary, that all planting areas and beds are kept free of weeds and undesirable plant growth and that the plants are maintained so that they are healthy, vigorous, and undamaged at the time of acceptance. Section 580-11 of the Standard Specifications, entitled "Plant Establishment Period and Contractor's Warranty," requires the contractor to: [a]ssume responsibility for the proper maintenance, survival and condition of all landscape items for a period of one year after the final acceptance of all work under the Contract in accordance with [Section] 5-11. [The contractor shall also] [p]rovide a Warranty/Maintenance Bond to the Department in the amount of the total sums bid for all landscape items as evidence of warranty during this plant establishment period. The costs of the bond will not be paid separately, but will be included in the costs of other bid items. * * * [The contractor shall] [t]ake responsibility to apply water as necessary during this period and include the cost in the various landscape items. No separate measurement of payment will be made for water during the plant establishment period. Pursuant to Sections 5-10 and 5-11 of the Standard Specifications, "acceptance" of a project does not occur until the Department determines that the contractor has satisfactorily completed all work on the project and informs the contractor in writing that the project is accepted. Sections 5-10.2 and 5-10.3 of the Standard Specifications allow for acceptance of portions of the project, called "partial acceptance." Those provisions do not, however, require the Department to accept projects on a piecemeal basis. At the pre-construction conference held on November 19, 2001, Mr. Welch asked, "if a single location [would] be accepted as it is completed." The Department's project manager, Stephen Bass, replied that he would "check to see if this is possible," and he told Mr. Welch that "[i]n the meantime, as you complete a site, advise me in writing and I will respond " Based upon the subsequent correspondence between the parties, it can be inferred that the Department decided against accepting the project on a site-by-site basis. No partial or final acceptance was ever given for the project or any of the individual sites. The first page of the specification package provided that the contract period was "270 days for installation," and "365 addtl [sic] days after acceptance for establishment." The 365-day, post-acceptance establishment period referred to in the specification package is the same as the one- year period referred to in Section 580-11 of the Standard Specifications. Petitioner's obligations during the establishment period were specifically discussed at the pre-construction conference. At that time, Mr. Bass made it clear to Mr. Welch that the contract included the one-year establishment period, in addition to the 270-day installation period. The installation period began on December 3, 2001, and ended on September 8, 2002. The latter date takes into account the ten "[bad] weather days" added to the installation period under the terms of the contract. Mr. Welch understood the project to be an installation-only contract. That understanding was based upon the reference to a 270-day installation period in the specifications, and the fact that the bid form did not have a separate line-item for maintenance. Mr. Welch did not read the specifications word-for- word prior to bidding on the project, nor did he take into account Section 580-11 of the Standard Specifications or the language on the first page of the specification package which clearly referenced the 365-day, post-acceptance establishment period. Mr. Welch did not understand the contract to require Petitioner to weed or otherwise maintain the beds after the plants were installed. He understood the contract to only require Petitioner to install the plants and then water them through the end of the 270-day installation period. In reaching this conclusion, Mr. Welch did not take into account Section 580-10 of the Standard Specifications, which clearly requires pre-acceptance weeding and which makes the contractor the absolute insurer of the plants until acceptance by the Department. The Department did not in any way contribute to Mr. Welch's misunderstanding of the scope of the contract. The contract documents were clear and unambiguous on the issue and the Department made it clear from the outset that the contract included a one-year establishment period. Petitioner's Performance Under the Contract Petitioner performed its work under the contract in a series of steps. Petitioner first sprayed the areas at each site where the landscaping would be installed with a herbacide to kill any existing vegetation. Two herbacide treatments were done at each site. Petitioner then "mulched" the planting areas at each site by mowing the dead vegetation and marked the locations at each site where the palm trees were to be installed. Petitioner then planted the palm trees at each site. Next, Petitioner installed "weed fabric" at the I-4/Lake Mary Boulevard interchange (hereafter "the Lake Mary site"). The weed fabric has two purposes: it blocks the light that reaches the ground thereby reducing or eliminating weeds, and it also helps prevent erosion. After installing the weed fabric, Petitioner began planting the plumbago shrubs at the Lake Mary site. To do so, Petitioner cut and folded back the weed fabric where each plumbago was to be located and then dug the hole within which the plant was placed. After the plant was placed in the hole, the weed fabric was then re-folded around the base of the plant. After the plumbagos were planted, Petitioner completed its work at the Lake Mary site by spreading pine straw mulch in the landscaped beds. The contract required a four-inch layer of mulch. After completing its work at the Lake Mary site, Petitioner moved to another site and installed the weed fabric, planted the plumbagos, and spread the pine straw mulch at that site. Petitioner continued working on a site-by-site basis in this manner until all of the sites had been completed. In June 2002, the Department expressed concern to Petitioner that it had fallen behind its installation schedule. In response, Petitioner put more people on the job and was able to get back on schedule. Petitioner completed the installation of the plants within the 270 days allotted for installation. Petitioner periodically watered each of the sites as the plants were being installed. Petitioner had two water trucks that it used for watering. The truck used at the Lake Mary site sprayed a stream of water out of a hose at a relatively high flow rate. Because large portions of the landscaped beds at the Lake Mary site were on steep slopes around the interchange, the stream of water from the water truck caused some of the pine straw to wash down the slope. Heavy rains also caused the pine straw to wash down the slope and, in some areas, to wash away completely. As a result, some of the landscaped areas were not covered with the four inches of mulch required by the specifications. Mr. Welch acknowledged the loss of mulch in some areas, and he attributed it to the weed fabric being too "slick" to hold the mulch. Nevertheless, because Mr. Welch considered the replacement of the mulch to be maintenance, which he did not consider to be part of the contract, Petitioner never replaced the pine straw. Petitioner did not consider using a "drip line" or other watering system which would have applied the water at ground level or at a lower rate of flow than the stream of water being sprayed from the water truck. Such an alternative system may have minimized the amount of mulch that washed down the slope from watering, but it may not have affected the mulch that washed away due to heavy rains. Such a system may have also gotten more water to the plants' roots. Despite the watering done by Petitioner, plumbagos and palm trees died at the Lake Mary site, as well as at the other sites. Mr. Welch acknowledged the "loss" of a number of trees and plants, although he testified that fewer plants had died than he had projected at the outset of the project. The precise number of trees and plants which died before Petitioner was declared in default on the contract and told to stop work on the project is not clearly reflected in the record. The loss of the plumbagos at the Lake Mary site may be partially attributable to the weed fabric selected by Petitioner not being permeable enough to allow the water to reach the plant roots, but Petitioner's failure to utilize an alternative watering system to compensate for the "problems" it encountered with the weed fabric also contributed to the loss of the plumbagos. On August 12, 2002, the Department and Petitioner "agreed that substantial completion has been achieved" on each of the sites. That means that all or substantially all of the plants had been installed by that date; it does not mean that the Department had accepted the work, either partially or conditionally. By letter dated August 13, 2002, the Department informed Petitioner that maintenance of the completed sites was necessary. Specifically, the letter informed Petitioner that there were dead palm trees and plumbagos at all of the sites which needed to be replaced, that the pine straw mulch needed to be replaced at most of the sites, and that weeding needed to be done. Petitioner did not perform the weeding or other maintenance directed by the Department. Indeed, the only work that Petitioner did on the project after August 13, 2002, was on August 20, 2002, when it watered two of the sites. By letter dated August 15, 2002, Petitioner responded to the Department's direction that maintenance be commenced at the completed sites. In that letter, Petitioner characterized the maintenance as "extra work" and requested additional compensation for the maintenance work. The Department denied Petitioner's request for additional compensation by letter dated August 15, 2002. That letter informed Petitioner that "a Deficiency Letter would be forthcoming if weed removal operation does not begin immediately." Petitioner did not respond to the letter. By letter dated August 21, 2002, the Department issued a "performance deficiency" based upon Petitioner's failure to maintain the planted areas as required by the contract and as directed by the Department in the letters dated August 13 and 15, 2002. Petitioner did not contest the deficiency within the ten-day period prescribed by the letter. By letter dated August 22, 2002, the Department requested that Petitioner submit the Warranty/Maintenance Bond required by the contract since "substantial completion has been achieved on the . . . project." The letter further advised Petitioner that the one-year establishment period would not commence until the bond was received by the Department. Petitioner did not respond to the letter. By letter dated August 27, 2002, the Department provided Petitioner with a "punch list" of items that required correction before the project could be accepted. The list included the replacement of dead palm trees and dead or under- sized plumbago shrubs at all of the sites; missing pine straw mulch at all of the sites; weeding and general clean-up of all of the sites; and submittal of the Warranty/Maintenance Bond. At the time of the Department's August 27, 2002, letter, 12 days still remained in the installation period. Petitioner did not respond to the letter and it made no effort to complete the punch list items identified by the Department. The Department never accepted the work performed by Petitioner under the contract because of the deficiencies identified above. As a result, the 365-day post-acceptance establishment period never commenced. Petitioner never provided the Department the Warranty/Maintenance Bond required by Section 580-11 of the Standard Specifications, which was incorporated by reference into the contract. The Lake Mary site is highly visible because the adjacent roads are very heavily traveled. The Department received complaints regarding the appearance of the Lake Mary site. The complaints came from Seminole County officials and members of the public. Alternative Weed Fabric Proposed by Petitioner The specifications package for the contract provided general requirements for the weed fabric to be used on the project. It did not, however, specify a specific brand of fabric which must be used. The specifications package provided that "[t]he fabric shall conform to the physical requirements on Roadway and Traffic Design Standards, Index No. 199 according to its application." Index No. 199 refers to the weed fabric as an "erosion mat," and requires it to have an ultra violet (UV) rating of 2,000 hours. Index No. 199 does not prescribe criteria for water permeability for the weed fabric. Petitioner provided the information in the specifications package relating to the weed fabric to its material supplier, who then provided Petitioner a fabric that met the specifications. The Department was not involved in those discussions. As required by the specifications package, Petitioner provided the Department a copy of the product data sheet for the selected fabric so that the Department could confirm that the fabric met the requirements of Index No. 199. The weed fabric which Petitioner selected was called "gold line." It had a UV rating of 2,500 hours, which met the requirements of Index No. 199. It had a water permeability rating of 15 gallons per minute per square foot (gal/min/SF). After encountering the problems described above at the Lake Mary site, Petitioner began looking for an alternative weed fabric which would be more permeable to water. The alternative fabric identified by Petitioner was "Style 125EX" from Linq Industrial Fabrics, Inc. The water permeability rating for that fabric was 150 gal/min/SF, but its UV rating was only 500 hours. Mr. Welch provided the data sheet for the Style 125EX fabric to Mr. Bass and requested that Petitioner be allowed to substitute that fabric for the fabric that it had used at the Lake Mary site. The Style 125EX fabric would have been used on the remaining sites, because the Lake Mary site had been completed with the original weed fabric by that time. That request was denied by the Department because the UV rating for the Style 125EX fabric did not meet the requirements of Index No. 199. The lower UV rating meant that the fabric would not hold up as long and, therefore, could create maintenance problems in the future. After the request to substitute the Style 125EX fabric was denied, Petitioner did not attempt to locate an alternative material which met the UV rating specified in Index No. 199, but was more permeable to water than the gold line fabric. Petitioner's Default and Unsatisfactory Performance Rating Section 8-9.1 of the contract provides that: The following acts or omissions constitute acts of default and . . . the Department will give notice, in writing, to the Contractor and his surety for any delay, neglect or default, if the Contractor: * * * performs the work unsuitably, or neglects or refuses to remove materials or to perform anew such work that the Engineer rejects as unacceptable and unsuitable; discontinues prosecution of the work, or fails to resume discontinued work within a reasonable time after the Engineer notifies the Contractor to do so; * * * (j) for any other cause whatsoever, fails to carry on the work in an acceptable manner, . . . . For a notice based upon reasons stated in subparagraphs (a) through (h) and (j): if the Contractor, within a period of ten calendar days after receiving the notice described above, fails to correct the conditions of which complaint is made, the Department will . . . have full power and authority, without violating the Contract, to take the prosecution of the work out of the hands of the Contractor and to declare the contractor in default. On September 16, 2002, the Department notified Petitioner that it intended to "default" Petitioner under the contract based upon its failure to maintain the planted areas, its failure to replace the dead plumbagos and palms, and its failure to provide the required Maintenance/Warranty Bond. As required by the contract, the letter gave Petitioner 10 days to cure the deficiencies in its performance. Petitioner did not respond to the Department's default letter, nor did it take any action to cure the deficiencies identified by the Department. As a result, on September 30, 2002, the Department formally declared Petitioner in default on the contract and directed Petitioner not to perform any additional work on the project. By letter dated October 22, 2002, the Department advised Petitioner of its "preliminary" field performance rating for the contract. Petitioner received a raw score of 53 (out of 90), which is a scaled score of 59. That is an unsatisfactory rating. Petitioner did not contest its rating within the time allowed by the Department's October 22, 2002, letter. As a result, the preliminary rating became final. Petitioner was not scored in the area of "maintenance of traffic operations." The Department had not received any complaints from the public on that issue, which is the primary consideration upon which that score is based. Had Petitioner received a "satisfactory" grade in that category, Petitioner's total score would have been 60. If Petitioner received a higher grade in that category, its total score could have been as high as 63. In either event, those scores still result in an unsatisfactory rating. By letter dated February 12, 2003, the Department advised Petitioner that it intended to declare Petitioner non-responsible for a period of two years based upon its default and unsatisfactory performance on Department contract number E-5G08. Petitioner timely requested a formal hearing, and this proceeding followed. The Department stipulated at the hearing that its decision to declare Petitioner non-responsible was not based on Petitioner's numerical performance rating (whether it is 59, 60, or 63), but rather on the actual unsatisfactory performance that is described above. Subsequent Department Contract With Vila & Sons After Petitioner's default, the Department contracted with another entity "in order to salvage the Department's investment in this landscaping project, i.e., ensure that the plantings become established, " That contract, entered into in May 2003 between the Department and Vila & Sons Landscaping Corporation, is identified as contract number E-5H09 (Vila & Sons Contract). The contract amount was $112,461.36. The Vila & Sons Contract was for "one-time maintenance" of three of the sites that Petitioner was responsible for under its contract with the Department. The sites were the I-4/Lake Mary Boulevard interchange, the SR 25/SR 200 interchange, and the US 441/SR 46 interchange. The Vila & Sons Contract was only for a 60-day period and consisted of the following landscape maintenance functions: 1) weeding [which includes pruning of existing live shrubs], 2) removal and replacement of dead shrubs, 3) fertilizing [which includes "watering in"], 4) remulching as necessary, 5) watering for plant establishment and/or maintenance. (Brackets in original). The Vila & Sons Contract called for the installation of 3,700 plumbago shrubs. It does not make reference to the removal of dead palm trees, the re-erection of fallen palm trees, or the installation of new palm trees. The bid form for the Vila & Sons Contract included separate line-items for water, mulch pine bark, plumbago shrubs, slow-release fertilizer, and "landscape maintenance (weed removal, manual)." The record does not establish whether the Vila & Sons Contract was satisfactorily performed or whether it was successful in "salvaging" the installation work which had been done by Petitioner. Between the time that Petitioner was declared in default in September 2002 and May 2003 when the Vila & Sons Contract was entered into, the Central Florida area had periods of cold weather. The cold temperatures during those periods may have killed some of the plumbagos and palm trees installed by Petitioner, but the record does not establish how many plants, if any, were killed by the cold weather as compared to the plants that were already dead at the time of Petitioner's default.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order which declares Petitioner non-responsible and ineligible to bid on Department contracts for a period of two years, commencing on the date of the final order. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 18th day of September, 2003. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32308 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
