The Issue West Florida's Motion for Summary Recommended Order Dismissing Azalea Trace (the Motion) has two grounds: That the letter of intent of Petitioner is fatally flawed because the Executive Committee of Azalea Trace, acting for the Board of Directors, lacked the authority to commit the Petitioner to a project costing in excess of $250,000 without the approval of Baptist Health Care Corporation. That the letter of intent of Petitioner is fatally flawed because the Executive Committee filed the letter of intent and appropriate resolution which the Executive Committee had passed on May 17, 1993, but the Board of Directors did not approve the resolution until May 24, 1993.
Findings Of Fact Azalea Trace filed a certificate of need application on May 17, 1993. That application contained the letter of intent accompanied by a certified copy of resolutions of the Executive Committee of the applicant making the required commitments to the proposed project. Exhibit B to the Motion are the minutes of the Executive Committee of Azalea Trace of May 13, 1993 reflecting that the Executive Committee had approved a resolution to commit Azalea Trace to the proposed CON project consisting of 21 community nursing home beds. Exhibit D to the Motion are the minutes of the Board of Directors of Azalea Trace of May 24, 1993 reflecting approval by the Board of the Executive Committee's action committing Azalea Trace to the proposed CON project consisting of 21 community nursing home beds. Exhibit A to the Motion is the Letter of Intent for 21 community nursing home beds filed by Azalea Trace on May 14, 1993. That letter reflects that the costs of the proposed project will not exceed $1,450,000, and reflects that in accordance with the provisions of Section 408.039(2)(c), Florida Statute, the Executive Committee of the Board of Directors of Azalea Trace, Inc., unanimously enacted an authorizing resolution at a meeting held May 13, 1993, a certified copy of said resolution being attached to the Letter of Intent. Exhibit E to the Motion are the Bylaws of Azalea Trace, Inc. These bylaws reflect that Baptist Health Care Corporation is the sole member of Azalea Trace corporation, and as sole member entitled to all rights and powers provided voting members by the Florida Nonprofit Corporation Law. See Article II, Section 2.1. Section 2.6, Article II of the bylaws above state that the action of the member shall be executed and delivered to the chairman or president of Azalea Trace in writing, and shall be deemed to have been taken on the dates the written instruments are delivered unless the instruments provide otherwise. Section 3.2, Article III of the bylaws above state that the board of directors shall be the policy making body of Azalea Trace, and it shall have the power and authority to do and perform all acts or functions not inconsistent with the bylaws or the corporation's articles of incorporation. Section 5.2, Article V of the bylaws above state that the executive committee from the board shall have all the powers and authority of the board between the meetings of the board, except the power to adopt, amend of repeal the bylaws. It further provides that the minutes of the executive committee shall be maintained and action taken by the executive committee shall be reported to the next meeting of the board. Section 7.2, Article VII of the bylaws above state that the board may authorize the president or other officers or agents to enter into any contract or purchase order or execute and deliver any instrument in the name of and on behalf of Azalea Trace provided that all contracts or purchase orders which will result in an expenditure by the corporation of an amount in excess of Two Hundred Fifty Thousand Dollars ($250,000) shall be approved in advance by the member. Azalea Trace's application indicates that the contract for the proposed project will be a lump sum contract.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered dismissing the Petitioner's CON application for lack of jurisdiction. RECOMMENDED this 29th day of April, 1994, at Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1994. COPIES FURNISHED: David Ashburn, Esquire 101 East College Avenue Post Office Box 1838 Tallahassee, FL 32302 Elizabeth McArthur, Esquire Suite 1000, Monroe-Park Tower Tallahassee, FL 32302 Gerald B. Sternstein, Esquire Suite 815 215 South Monroe Street Tallahassee, FL 32301 Lesley Mendelson, Esquire Agency for Health Care Administration 301 Atrium Building 325 John Knox Road Tallahassee, FL 32303 Sam Power, Agency Clerk Agency for Health Care Administration 301 Atrium Building 325 John Knox Road Tallahassee, FL 32303
The Issue The issues in each case are whether, pursuant to Sections 489.141 and 489.143, Florida Statutes (2003), a claimant is entitled to payment from the Construction Industries Recovery Fund, and, if so, whether, pursuant to Section 489.143(7), Florida Statutes (2003), Respondent may automatically suspend the residential contractor's license of Petitioner until Petitioner reimburses Respondent for the paid claim.
Findings Of Fact Petitioner is licensed as a certified residential contractor, holding license number CRC 013599. Respondent first issued a residential contractor's license to Petitioner in 1978, and Petitioner has been continually licensed since that time. Petitioner has never been disciplined by Respondent or any local governmental agency. On January 29, 2004, Respondent transmitted to the Division of Administrative Hearings seven files containing administrative complaints alleging disciplinary breaches against Petitioner for many of the transactions covered in the nine subject cases. These seven new cases have not yet been heard, and Respondent has not yet entered any restitution orders against Petitioner. In the past, Petitioner has placed his residential contractor's license with various corporations to qualify them to perform residential construction. In February 1999, Petitioner met with Lori Thomson, president of Thomson Homes, Inc., to discuss placing his license with her residential construction company. Now inactive, Thomson Homes, Inc., had been in the residential construction business since at least 1994, operating out of an office in Palm Beach County, which is also the location of all but one of the residential construction jobs that are the subject of these cases. Since 1994, Thomson Homes, Inc., had used the general contractor's license of Ms. Thomson's husband, Steven Thomson, to qualify to perform residential construction. During the time that his license qualified Thomson Homes, Inc., Mr. Thomson believed that he and his wife owned the corporation equally and that she served as the president and he served as the vice-president. In the summer of 1998, Mr. Thomson filed for divorce from Ms. Thomson. In February 1999, Ms. Thomson fired Mr. Thomson from Thomson Homes, Inc. Shortly thereafter, Mr. Thomson learned that Ms. Thomson had caused all of the stock to be issued to her when the corporation was formed, and that she had assumed all of the officer and director positions. In early March 1999, Mr. Thomson cancelled all of the building permits that he had obtained on behalf of Thomson Homes, Inc., and withdrew his general contractor's license from Ms. Thomson's corporation, effective March 20, 1999. When Mr. Thomson withdrew his license from Thomson Homes, Inc., it was in the process of building or preparing to build about ten homes. At no time during Petitioner's discussions with Ms. Thomson was he aware that Thomson Homes, Inc., was actively involved in construction. Eventually, Ms. Thomson and Petitioner agreed that Petitioner would place his residential contractor's license with Thomson Homes, Inc., and would supervise the corporation's construction activities. In return, Thomson Homes, Inc., would pay Petitioner $500 weekly and 35 percent of the profits. After filing the necessary documentation in April 1999, Petitioner qualified Thomson Homes, Inc. effective April 22 or 26, 1999. Petitioner advised Ms. Thomson that he had other work to do for another month, so he could not start with Thomson Homes, Inc. immediately. Ms. Thomson told him that she had to get financing arranged for several signed contracts and did not have any construction taking place at the time. The record is unclear whether this delay took place after the initial agreement between Petitioner and Ms. Thomson or after Petitioner formally placed his license with Thomson Homes, Inc. However, in either event, from the date that Petitioner formally placed his license with Thomson Homes, Inc., he never had a substantive conversation with Ms. Thomson about any construction activities of Thomson Homes, Inc. Not hearing from Ms. Thomson, Petitioner eventually called her to learn when he would start work. At first, Ms. Thomson took Petitioner's calls and kept explaining that the financing paperwork had been delayed. She promised to call Petitioner when construction was ready to proceed. However, Ms. Thomson never contacted Petitioner, and she later stopped taking or returning Petitioner's calls. In early August 1999, Petitioner called Thomson Homes, Inc., and learned that its telephone had been disconnected. He visited the office of Thomson Homes, Inc., but found it closed and the premises vacated. In fact, Thomson Homes, Inc., discontinued business on or about August 1, 1999. Between the date that Petitioner had qualified Thomson Homes and the point at which Thomson Homes ceased doing business, Thomson Homes, Inc., had entered into construction contracts, taken deposits and draws on construction loans, and performed residential construction--all unknown to Petitioner. Also unknown to Petitioner was the fact that Thomson Homes, Inc., had failed to perform its obligations under many, if not all, of its construction contracts during that period. The record is unclear when Petitioner withdrew his license from Thomson Homes, Inc. Petitioner sent Respondent a letter on August 30, 1999, advising of the withdrawal of his license from Thomson Homes, Inc. Later advised that he needed to file another form to effect the withdrawal, Petitioner did so in March 2000. The difference is not important in these cases. At no time did Petitioner receive any money from Thomson Homes, Inc., or any of the claimants who contracted with Thomson Homes, Inc. At no time did Petitioner enter into any contracts with any of the claimants. Only after Thomson Homes, Inc., had taken the claimants' money and abandoned work or failed to commence work did Petitioner learn that Thomson Homes, Inc., had done construction business under his license. DOAH Case No. 03-3540 involves the claim of Sandra Harvey. Ms. Harvey entered into a construction agreement with Thomson Homes, Inc., on September 9, 1998. Pursuant to the agreement, Ms. Harvey agreed to pay Thomson Homes, Inc., $25,500 for a lot and $115,260 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After pouring the slab, constructing the shell, and completing the rough plumbing, air conditioning, and electrical, Thomson Homes, Inc., stopped work on Ms. Harvey's home in early 1999. Ms. Harvey learned of the problem when Mr. Thomson called her in early 1999 and said that he could not finish the home because Ms. Thomson had taken over the business. This call probably took place no later than late March 1999, when Mr. Thomas withdrew as the qualifier for Thomson Homes, Inc. The record does not reveal the extent of payments from Ms. Harvey or her lender or the extent of completed work at the time that Thomson Homes, Inc., abandoned the job. Although the complaint is not part of this record, Ms. Harvey commenced a legal action against Thomson Homes, Inc., but not Petitioner. She obtained a default final summary judgment against Thomson Homes, Inc., on March 30, 2001, for a total sum of $46,267.32, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, services and material provided. As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from the construction lender. On May 3, 2001, Ms. Harvey filed a claim with the Construction Industries Recovery Fund (Recovery Fund). In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Harvey answered "yes," explaining she had "filed lawsuit." Ms. Harvey probably filed her claim within two years of when Thomson Homes, Inc., abandoned her job. By the end of March 1999, Mr. Thomson informed Ms. Harvey that his wife had fired him, so he could not work on her home anymore. A change in qualifier does not mean that Thomson Homes, Inc., would necessarily abandon the job, but, as noted in the Conclusions of Law, abandonment presumptively arises upon the expiration of 90 days without work. No work took place on Ms. Harvey's home after Mr. Thomson withdrew as qualifier, so presumptive abandonment took place by the end of June 1999--after May 3, 1999, which is two years prior to the date on which Ms. Harvey filed her claim. By letter dated June 5, 2001, from James Brogan of WEI Consulting Group to Ms. Harvey, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in Bankruptcy Court in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home, but the furniture was no longer available. On February 28, 2003, Respondent issued an Order approving Ms. Harvey's claim of $25,000 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Harvey is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Harvey and Respondent, contests the payment to Ms. Harvey and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Harvey's claim because she had made insufficient efforts to satisfy the judgment; she had failed to submit all required exhibits with her claim; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Additionally, the petition contests the automatic suspension because the payment to Ms. Harvey is not authorized, her claim is incomplete, and her judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3541 involves the claim of John and Kathleen Whitesides. The Whitesides, who lived at the time in Juno Beach, Florida, entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, the Whitesides agreed to pay Thomson Homes, Inc., $154,094 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After the Whitesides paid Thomson Homes, Inc., $5000 and secured a construction loan, Thomson Homes, Inc., never commenced construction. In a complaint filed April 3, 2000, the Whitesides commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction. The Whitesides obtained a default final judgment against Thomson Homes, Inc., on December 21, 2000, for a total sum of $20,146.67, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: "Defendant is in breach of the Contract dated February 7, 1999, and has received unjust enrichment from Defendant's failure to fulfill the terms of the Contract to build a home for Plaintiffs." On August 9, 2001, David Tassell, the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., stated, in an acknowledged statement, that he had performed "numerous" real property searches in Palm Beach and Martin counties' public records and determined that Thomas Homes, Inc., "owns no real property in Martin County." The omission of Palm Beach County in the statement is unexplained. Mr. Tassell's statement adds that he has retained a private investigator, who confirmed that Thomson Homes, Inc., owns no boats, planes, or automobiles. On August 10, 2001, the Whitesides filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Whitesides answered "yes," but did not supply an explanation in the following blank. The completed questionnaire accompanying the claim states that the Whitesides discovered the violation in September 1999 and that it occurred in July to August 1999. On September 17, 2002, Respondent issued an Order approving the Whitesides' claim of $18,526.67 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Whitesides are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. The Whitesides probably filed their claim within two years of when they reasonably should have discovered that Thomson Homes, Inc., had wrongfully failed to commence construction, as is required for reasons set forth in the Conclusions of Law. As noted in the Conclusions of Law, presumptive abandonment arose when Thomson Homes, Inc., after entering the contract, performed no work for 90 days. Six months elapsed from the signing of the contract to the date that is two years prior to the filing of the claim. Although the record is not well-developed on the point, it is more likely than not that due diligence did not require that the Whitesides discover the abandonment within the first 90 days after it had presumptively arisen. The Whitesides' judgment is probably based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes, as is required for reasons set forth in the Conclusions of Law. Although the record is not well-developed on this point either, it is more likely than not that the judgment is based on Thomson Homes' abandonment after entering into the contract. The judgment does not state this basis explicitly, but the complaint, on which the judgment is based, alleges abandonment. On December 23, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., contests the payment to the Whitesides and the automatic suspension of Petitioner's license. The petition contests the payment of the Whitesides' claim because they did not file certified copies of the final judgment and levy and execution documents and their judgment did not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; Petitioner received no notice of the hearing that resulted in the Order to pay the Whitesides and suspend Petitioner's license; the Whitesides' claim is incomplete; and the Whitesides' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3542 involves the claim of Richard and Kathleen Beltz. The Beltzes entered into a construction contract with Thomson Homes, Inc., on July 13, 1999. Pursuant to the agreement, the Beltzes agreed to pay Thomson Homes, Inc., $35,500 for a lot and $140,500 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After the Beltzes paid Thomson Homes, Inc., $17,283.70, Thomson Homes, Inc., never appeared at the closing, which had been scheduled for August 10, 1999. Nor did Thomson Homes, Inc., ever commence construction. The record does not disclose the extent, if any, to which Thomson Homes, Inc., completed construction. The Beltzes' discovery of Thomson Homes' failure to commence construction was hampered by the fact that they resided in California at the time. However, the Beltzes had obviously discovered the wrongful acts and omissions of Thomson Homes, Inc., by September 29, 1999, when they sent a letter to Petitioner demanding that he return the money that they had paid Thomson Homes, Inc. On October 19, 1999, the Beltzes signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. The completed questionnaire attached to the claim does not ask if the claimants had made a diligent effort to collect payment from the contractor. For reasons set forth in the Conclusions of Law, a claim must follow a judgment, so, the Beltzes could not file a valid claim until they had obtained a judgment. Two years from September 29, 1999, at which point the Beltzes obviously knew of a violation, requires that they file the claim, on an already- secured judgment, prior to September 29, 2001. In a complaint filed February 4, 2002, the Beltzes commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Beltzes obtained a default final summary judgment against Thomson Homes, Inc., on May 22, 2002, for a total sum of $23,280.20, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant performed some work on the project. However, Defendant breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided. As a result of Defendant failing to pay Lienors who provided labor, service and materials to Plaintiffs [sic] real property, Construction Liens were recorded against same, which Plaintiffs had to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay Lienors, the misapplication of construction funds and financial mismanagement, Plaintiffs were forced to borrow additional funds from their construction lender. By unacknowledged statement dated August 23, 2002, Ms. Beltz declared that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Ms. Beltz stated that she searched the database of the "Department of Motor Vehicles in Palm Beach County" in May 2000 and found no vehicles or boats registered to Thomson Homes, Inc. Lastly, she reported that she contacted the "Federal Aviation Association" at an unspecified time and found no "airplanes" registered to Thomson Homes, Inc. On November 26, 2002, Respondent issued an Order approving the Beltzes' claim of $17,222.78 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Beltzes are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 27, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Beltzes and Respondent, contests the payment to the Beltzes and the automatic suspension of Petitioner's license. The petition contests the payment of the Beltzes' claim because they did not submit all of the necessary exhibits with their claim; their judgment is against Thomson Homes, Inc., and not Petitioner; and their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; the Beltzes' claim is incomplete; and the Beltzes' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3543 involves the claim of Keith and Karen Deyo. The Deyos entered into a construction contract with Thomson Homes, Inc., on October 31, 1998. Pursuant to the agreement, the Deyos agreed to pay Thomson Homes, Inc., $25,500 for a lot and $123,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. Although the Deyos clearly suffered damages from the acts and omissions of Thomson Homes, Inc., the record does not disclose how much they paid the company, how much they had to pay unpaid suppliers and laborers, and how much construction the company completed before abandoning the job. Thomson Homes, Inc., began construction on the Deyos' home about 30-45 days after the parties signed the contract, but all work stopped in July 1999. In an undated complaint, the Deyos commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment] of the project prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Deyos obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $55,458.64, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant partially performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided. As a result of Defendant failing to pay lienors who provided labor, services and materials to Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs had to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 27, 2000, the Deyos signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. A cover letter dated May 8, 2000, suggests that the Deyos mailed their claim a couple of weeks after signing it, so it was probably filed in mid-May 2000, although their questionnaire bears a revision date of November 2001, which would be beyond two years after the violation. In the questionnaire, the Deyos did not respond to the question asking if they had made a diligent effort to collect payment from the contractor. By an undated and unacknowledged statement, Mr. Deyo declared that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that he had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Mr. Deyo stated that he searched the database of the "department of motor vehicles in Palm Beach County" in on April 14, 2000, and found no motor vehicles or boats registered to Thomson Homes, Inc. Lastly, he reported that he contacted the "Federal Aviation Association" on April 21, 2000, and found no "airplanes" registered to Thomson Homes, Inc. On January 22, 2003, Respondent issued an Order acknowledging the Deyos' claim of $55,458.64, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Mr. Deyo is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On February 3, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Deyos' attorney who represented them in the action against Thomson Homes, Inc., contests the payment to the Deyos and the automatic suspension of Petitioner's license. The petition contests the payment of the Deyos' claim and suspension of Petitioner's license because Petitioner did not receive notice of the hearing at which Respondent entered the Order; the Deyos did not satisfy all requirements for payment from the Recovery Fund; their claim was not accompanied by certified copies of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3544 involves the claim of Sylvia Reinhardt. Ms. Reinhardt entered into a construction contract with Thomson Homes, Inc., on October 14, 1998. Pursuant to the agreement, Ms. Reinhardt agreed to pay Thomson Homes, Inc., $45,000 for a lot and $147,150 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After Ms. Reinhardt paid Thomson Homes, Inc., $144,769, directly and indirectly, by way of her construction lender, the house was little more than half complete when Thomson Homes, Inc., abandoned the job. Thomson Homes also failed to pay various suppliers that filed liens, so Ms. Reinhardt had to pay $8550.41 to RTS Roofing, $882 to Palm Beach Garage Door, and $3421.32 to Woodworks, Inc. In an undated complaint filed in 1999 (actual date illegible), Ms. Reinhardt commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. Ms. Reinhardt obtained a final summary judgment against Thomson Homes, Inc., on March 28, 2000, for a total sum of $61,471.15, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and materials provided. As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff had to satisfy. As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete their [sic] home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from her construction lender. On April 17, 2000, Ms. Reinhardt filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Reinhardt answered "yes" and explained: "Telephone calls were unanswered. Certified mail requesting response were [sic] never answered. Our attorney made written and personal contact with the owner and there was no intention to pay." The claim states that the violation took place in July 1999. By acknowledged statement dated July 21, 2000, Ms. Reinhardt declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Reinhardt stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found one parcel of property owned by Thomson Homes, Inc., and valued at $115,387, but this had been sold to "Joan Thomson" on February 1, 2000. Ms. Reinhardt stated that she had found tangible personal property worth $5000. She added that she had not found any motor vehicles registered with the Department of Highway Safety and Motor Vehicles, nor had she found anything registered with the "FAA." On November 26, 2002, Respondent issued an Order acknowledging Ms. Reinhardt's claim of $58,661.44, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Reinhardt is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 24, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Reinhardt and Respondent, contests the payment to Ms. Reinhardt and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Reinhardt's claim and suspension of Petitioner's license because Ms. Reinhardt did not submit certified copies of the levy and execution documents; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3545 involves the claim of Louis and Ann Mahoney. The Mahoneys entered into a construction contract with Thomson Homes, Inc., on June 28, 1999, for the construction of a home in Martin County. Pursuant to the agreement, the Mahoneys agreed to pay Thomson Homes, Inc., $32,000 for a lot and $149,000 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour. After the Mahoneys paid Thomson Homes, Inc., $14,500, directly and indirectly, by way of their construction lender, they suffered damages due to the acts and omissions of Thomson Homes, Inc., although, again, the record does not describe specifically how Thomson Homes caused them damage. In an undated complaint that bears no filing date, the Mahoneys commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Mahoneys obtained a final summary judgment against Thomson Homes, Inc., on April 13, 2000, for a total sum of $43,084.49, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiffs' deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, and/or services provided. As a result of Defendant failing to pay lienor's [sic] who provided labor, services and materials for the construction of Plaintiffs [sic] residence, a construction lien was recorded against Plaintiffs' property, which Plaintiffs will have to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 30, 2000, the Mahoneys signed a claim under the Recovery Fund. Although the claim form bears no filing date, the completed questionnaire attached to the claim was filed on May 3, 2000, so that is the likely filing date of the claim. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Mahoneys answered "yes" and explained: "This is explained in General Allegations, enclosed with this paperwork." Evidently, the reference is to a copy of the circuit court complaint. By acknowledged statement dated April 8, 2002, Mr. Mahoney declared that he had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy his judgment. Mr. Mahoney stated that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that an internet search had disclosed no property owned by Thomson Homes, Inc. Mr. Mahoney stated that the "department of motor vehicles in Palm Beach County" found no motor vehicles or boats registered to Thomson Homes, Inc., and that the "FAA" had found nothing registered to Thomson Homes, Inc. On February 28, 2003, Respondent issued an Order acknowledging the Mahoneys' claim of $38,185, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Mr. Mahoney is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Mahoneys and Respondent, contests the payment to the Mahoneys and the automatic suspension of Petitioner's license. The petition contests the payment of the Mahoneys' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3546 involves the claim of Dennis and Carolyn DeStefanis. The DeStefanises entered into a construction contract with Thomson Homes, Inc., on April 7, 1999. Pursuant to the agreement, the DeStefanises agreed to pay Thomson Homes, Inc., $137,455 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour. After the DeStefanises paid Thomson Homes, Inc., $15,765, directly and indirectly, by way of their construction lender, Thomson Homes, Inc. never did any work, except to contract with a surveyor, who, unpaid, filed a claim of lien against the DeStefanises's lot. In an undated complaint bearing no filing date, the DeStefanises commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The DeStefanises obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $36,701.87, including attorneys' fees and costs. The judgment states, in part: Subsequent to entering . . . into the above referenced contract, Defendant, [sic] breached its contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project. [sic] As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 19, 2000, the DeStefanises filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the DeStefanises answered "yes" and explained: "Went to DBPR Investigative Services, hired Attorney Barry W. Taylor [attorney in circuit court action], got Final Summary Judgment against Thomson Homes, Inc." On March 20, 2003, Respondent issued an Order acknowledging the DeStefanises' claim of $34,965.52, approving the payment of $15,765 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the DeStefanises are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On April 7, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the DeStefanises and Respondent, contests the payment to the DeStefanises and the automatic suspension of Petitioner's license. The petition contests the payment of the DeStefanises' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. The petition contests the suspension of Petitioner's license on the additional ground that he was not the qualifier for Thomson Homes, Inc., when it and the DeStefanises entered into the construction contract. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3547 involves the claim of James and Donna Barr. The Barrs entered into a construction contract with Thomson Homes, Inc., on September 12, 1998. Pursuant to the agreement, the Barrs agreed to pay Thomson Homes, Inc., $30,000 for a lot and $140,900 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. The Barrs paid Thomson Homes, Inc., $8500 in the form of a down payment. They or their construction lender paid Thomson Homes, Inc., considerably more money and suffered the imposition of claims of lien by unpaid subcontractors and suppliers, but, after negotiating with the bank, emerged from the transaction having lost only the $8500 down payment. Thomson Homes, Inc., obtained permits in April 1999 and started construction in May 1999. Before abandoning the job, Thomson Homes, Inc., worked on the home in May, June, and July of 1999. The Barrs and their lender did not make additional payments after the Barrs found the Thomson Homes, Inc., office empty on August 1, 1999. In a complaint filed October 6, 1999, the Barrs commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Barrs obtained a final summary judgment against Thomson Homes, Inc., on May 8, 2000, for a total sum of $45,435.62, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, partially performed work under the Contract. However, Defendant breached the contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided. As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs will have to satisfy. As a result of Defendant abandoning the project, Plaintiffs will be compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienors, the misapplication of construction funds and financial mismanagement Plaintiffs will be forced to borrow additional funds from their construction lender. On June 2, 2000, the Barrs filed a claim under the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Barrs answered "yes" and explained: "I have looked into the assets of Thomson Homes Inc. and they do not have any. My affidavit is attached." The completed questionnaire states that the Barrs discovered the violation on August 11, 1999. They therefore failed to file their claim within two years of the discovery of the violation. By acknowledged statement dated May 23, 2000, Ms. Barr declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Barr stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared she had found no property owned by Thomson Homes, Inc., in Palm Beach County. Ms. Barr stated that the Department of Highway Safety and Motor Vehicles found no motor vehicles or boats registered to Thomson Homes, Inc., and that the internet site of the "FAA" had revealed nothing registered to Thomson Homes, Inc. On November 26, 2002, Respondent issued an Order approving the payment of the Barrs' claim of $8500 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Barrs are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 27, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Barrs and Respondent, contests the payment to the Barrs and the automatic suspension of Petitioner's license. The petition contests the payment of the Barrs' claim and suspension of Petitioner's license because they did not submit a certified copy of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3633 involves the Joanne Myers. Ms. Myers entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, Ms. Myers agreed to pay Thomson Homes, Inc., $29,500 for a lot and $125,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. Ms. Myers directly or indirectly paid Thomson Homes, Inc., $12,840. According to Ms. Myers' claim, Thomson Homes, Inc., never commenced construction before going out of business in August 1999. In an undated complaint bearing no filing date, Ms. Myers commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. Ms. Myers obtained a final summary judgment against Thomson Homes, Inc., on May 31, 2000, for a total sum of $28,307.77, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering . . . into the above referenced contract, Defendant breached the contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided. As a result of Defendant failing to pay lienor's [sic] who provided labor, services and/or materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff will have to satisfy. As a result of Defendant abandoning the project, Plaintiff will be compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff will be forced to borrow additional funds from her construction lender. On September 18, 2000, Ms. Myers filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Myers answered "yes" and explained: "Contractor closed corporate office--would not answer telephone calls." By letter dated November 30, 2000, from James Brogan of WEI Consulting Group to Ms. Myers, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home. On February 28, 2003, Respondent issued an Order approving the payment of Ms. Myers' claim of $14,080.66 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Myers is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Myers and Respondent, contests the payment to Ms. Myers and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Myers' claim and suspension of Petitioner's license because she did not submit evidence of a diligent search for assets; she did not submit all of the required exhibits; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. On January 4, 2004, Ms. Myers died. However, the probate court of Lancaster County, Pennsylvania, issued letters testamentary on her estate to James W. Myers III, in whose name Ms. Myers' claim is now being prosecuted. At the hearing, Petitioner contended that most, if not all, of the claims failed because the claimants had not exercised reasonable diligence in searching for assets, although Petitioner has dropped this contention in its proposed recommended order. In his petitions for hearing, Petitioner raised this contention only as to Ms. Myers. Ms. Myers, as well as the remainder of the claimants, made or caused to be made a reasonable search and inquiry for the assets of Thomson Homes, Inc. It is obvious that Thomson Homes, Inc., had no assets by the first letter from Mr. Brogan, dated November 30, 2000, nor did it have assets when Mr. Brogan issued his later letter on June 5, 2001, or when the attorney issued his affidavit on August 9, 2001. What is reasonable, in terms of a search, is dictated here by the fact that Thomson Homes, Inc., had no discoverable assets against which it could be made to answer for the considerable fraud that it perpetrated against these nine claimants. Respondent provided all of the parties, including Petitioner, with notice of its hearings at which it entered Recovery Fund orders. The petitions contend that Petitioner received no such notice in the Whitesides and Deyos cases. Although not litigated at the hearing, the presumption of notice, pursuant to the recitations set forth in each of Respondent's orders, results in a finding that Petitioner received timely notice in all cases.
Recommendation It is RECOMMENDED that Respondent enter a final order dismissing the claims against the Recovery Fund of the Beltzes and Barrs; paying the claims against the Recovery Fund of the remaining claimants, pursuant to the provisions of the orders of Respondent already issued in these cases and pursuant to the provisions of Section 489.143(1)-(6), Florida Statutes; and dismissing Respondent's request for the automatic suspension of Petitioner's license, pursuant to Section 489.143(7), Florida Statutes, without prejudice to any separate disciplinary proceedings that Respondent has commenced or may commence against Petitioner or others for the acts and omissions involved in these nine cases. DONE AND ENTERED this 17th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 17th day of February, 2004. COPIES FURNISHED: Bruce G. Kaleita Law Office of Bruce G. Kaleita, P.A. 1615 Forum Place, Suite 500 West Palm Beach, Florida 33401 Adrienne C. Rodgers Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1023 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent retaliated against Petitioner by requesting that he not physically work at Respondent's Fort Myers site in violation of the Florida Civil Rights Act and, if so, what relief should Petitioner be granted.
Findings Of Fact Sprint was given the opportunity to have Nortel terminate Mr. Fernandez's employment with Nortel, but did not do so. Sprint's legal department was, in late February and early March 2008, negotiating an agreement with Petitioner's attorney to have him removed from the Fort Myers site. Although that agreement was not yet final, and filed with the court when he was reassigned, the evidence supports a conclusion that the agreement, not retaliation, was the basis for Mr. Fernandez's reassignment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Sprint/United Management Company did not retaliate against Robert Fernandez in violation of the Florida Civil Rights Act of 1992, as amended, and dismissing his petition for relief. DONE AND ENTERED this 12th day of January, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 12th day of January, 2010. COPIES FURNISHED: Stanley Kiszkiel, Esquire Stanley Kiszkiel, P.A. 9000 Sheridan Street, Suite 92 Hollywood, Florida 33024 Mary Jean Fell, Esquire Sprint/United Management Company 2001 Edmund Halley Drive Reston, Virginia 20191 Heather R. Gill, Esquire 6450 Sprint Parkway Mail Stop KSOPHN0304-3B461 Overland Park, Kansas 66215 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are whether the Fast Track Claims Process developed by the Bureau of Unclaimed Property is a statement within the meaning of a rule as defined by Section 120.52(15)(a)(1), Florida Statutes, and if so, whether rulemaking is feasible and practicable under Section 120.56(4)(b), Florida Statutes. If so, then whether the Department would be in violation of Section 120.54(1)(a), Florida Statutes. Unless otherwise stated, all references to Florida Statutes in this Final Order shall be to the 2006 version.
Findings Of Fact The Florida Department of Financial Services, Bureau of Unclaimed Property (the "Bureau”), is responsible for enforcement and administration of the Florida Disposition of Unclaimed Property Act (the "Act"), Chapter 717, Florida Statutes. Pursuant to Subsections 717.117 and 717.119, Florida Statutes, holders of unclaimed property must report and remit unclaimed property to the Department. The Department is then responsible for safeguarding that property, locating its owners, and processing claims for such property so that it goes to the rightful owners. Unclaimed property owners may sell the rights to their property to private investigators, certified public accountants, or attorneys. HEA is licensed and certified to act as a representative for owners of unclaimed property and/or to purchase their interests. HEA is co-owned by Jim Harris and Richard Eckland. Petitioner has been in the business of submitting claims to the Bureau on behalf of claimants since 1994. Prior to setting up the unclaimed property business, Jim Harris was employed by the Bureau. He was an OPS employee working as a claims analyst for approximately eighteen months during calendar years 1991 to 1993. Jim Harris and Richard Eckland are both licensed by the Florida Department of Agriculture as private investigators. HEA is one of the largest unclaimed property locater businesses in the state. Petitioner's business has grown since its inception, and HEA currently submits about 20,000 claims a year on behalf of claimants. The majority of claims filed by HEA are for amounts less than $250. The company uses a computer system, which it developed to track down unclaimed property, then directly mails letters to the owners of the property, offering to act as the owner's representative. In exchange, HEA is paid a fee. The two types of claims HEA most frequently files are known as "106" and "108" claims. A 106 claim is filed by the apparent owner of the property, whether that person is the original owner or is someone who has purchased the claim. These persons may receive a form (DFS-UP-108) to file their claim by going on-line to the Bureau's website. A 108 claim is a claim filed by a representative or agent of the apparent owner; 108 claims are submitted on form DFS-UP-108. When HEA purchases an owner's rights to property, it is referred to in the industry as a "buy-out" claim. In that instance, HEA pays the owner an agreed-upon amount up front (usually within two days of entering into a contract), then files the claim on its own behalf (as the new apparent owner) in order to receive the property from the Bureau. This would constitute a 106 (apparent owner) claim because HEA has purchased all rights to the property in question and now owns the claimed property. Buy-out claims have historically constituted as much as 80 percent of Petitioner's business, but that percentage has been reduced in recent months. HEA relies on an existing line of credit from Hancock Bank for funds to make buy-out purchases. The line of credit is tied to a master account belonging to HEA. The master account is used to replenish HEA's operating account as needed. The master account is also used to make payments to the line of credit. Those payments are made automatically through an arrangement with the bank, wherein HEA's master account is credited or debited depending on the company's monetary needs on any given day. The Bureau pays claims via electronic transfer from its treasury to the owner or owner's agent financial institution. HEA has an electronic funds transfer (EFT) account set up solely for the purpose of receiving transfers from the State. The EFT transfers to HEA's bank go directly into its master account. Those funds are then used to pay off the line of credit and/or are transferred to HEA's operating account, as necessary. HEA's business has steadily grown since its inception. There were a couple of years of difficulty when it first commenced operations, but since that time the business has grown in volume and revenue each year. During the 2002-2003 season, the Bureau transferred $558,348.35 to HEA's EFT account to pay for claims submitted by HEA. In 2003-2004, the amount was $655,757.81; in 2004-2005 the amount rose to $1,168,186.37; and the 2005-2006 transfer amount was $1,432,587.79. Historically, HEA was able to represent to its clients that payment of claims would be made within 60 to 90 days of filing the claim. There is no statutory or rule requirement that claims be paid by the Bureau within any specific time frame, but all claims are required by statute to be processed for payment within 90 days of submission. Nonetheless, payments were historically made within 60 to 90 days of the date the claim was submitted. HEA came to rely on this repayment regimen in its dealing with customers. The Bureau had a policy in place called Procedure AP XVII, but that policy is no longer in effect. That policy included a provision that all claims would be processed in the order received, apparently regardless of the type of claim. No such written policy currently exists. Still, the Bureau attempts to process all claims in the order received, to the extent possible. In April 2006, HEA began seeing a slowing of payments for its submitted claims. Claims which had taken an average of less than 80 days to be paid began to take as long as 90 or even 100 days. This slowdown lasted until June or July 2006, at which time the payment times began to take less time for processing. Data to review more recent history was not yet available at the time of the final hearing in this matter. During the slowdown period, HEA was forced to borrow $200,000 from a second bank in order to maintain its line of credit at Hancock Bank. (HEA was required to have no more than 85 percent of the line-of-credit amount in outstanding receivables at any point in time. If the A/R amount exceeded 85 percent of the line of credit amount, the bank could call the loan and HEA would have to pay the full outstanding balance. The $200,000 loan was used to reduce the amount owed on the line of credit so that the entire line-of-credit loan would not be called. This allowed HEA to maintain the credit line and continue borrowing up to 85 percent of that line to purchase claims, pay operating expenses, etc.) HEA believes the reason they were getting paid more slowly than normal was that the Bureau had developed a new payment process that affected payment times. The process came to be referred to as the Fast Track process. The Fast Track Process In October 2005, the Bureau developed a new process for Fast Track Claims. This process would allow certain 106 claims to be automatically processed by the Bureau's computer system rather than manually processed. It works along these lines: A person would access the Bureau website to request a form for making a claim. The computer would automatically determine, based upon information submitted by the claimant, whether the claim satisfied all fast track claim criteria. The form sent back to the claimant would then contain either an "F" designation for Fast Track or the traditional "C" designation for regular 106 claims. The form would be completed and returned to the Bureau at the appropriate address. When the Department receives a fast track claim, it is date stamped as the initial step. Each eligible fast track claim is then visually inspected to make sure it contains a photo identification and that the claim is signed. Additional research is needed if either of those elements is missing. Next, the receipt date is entered into the computer system at the same time that other claim types are entered. The claims are then returned to the file room for bar coding, scanning and indexing. Overnight, the computer updates the claims and approvable fast track claims are systematically approved, routed to the Approval Level 1 queue, and then (typically) paid. Fast track claims that are not approvable are sent a deficiency letter and the claim loses its fast track identity. In addition, a claim will lose its fast track status if the claimant owes past-due child support, if there is a conflicting claim, or if additional money has been added to the account so that it now exceeds the allowable threshold ($1,000.00). Only 106 claims filed by the original owner are sent through the Fast Track Claims Process. The 106 buy-out claims are automatically deemed to require additional research because the Bureau would need to ascertain the validity of the purchase agreement, verify the change in ownership, etc. The Fast Track Claims Process resulted in the creation of one of several new "queue" areas used to process claims. The purpose of the creation of the Fast Track queue was to allow automatic processing of as many claims as possible so that analysts' time could be spent making determinations on other types of claims. Fast track claims are one of the least complex kinds of claims processed by the Bureau. Therefore, they are the most easily assimilated into the automatic process. Compare simple fast track claims to HEA's 106 buy-out claims. Those kinds of claims require additional work performed by the analysts. For example: Since ownership information entered by HEA does not match the missing owner information maintained by the Bureau, it must be verified. In addition, HEA is required to submit its purchase contracts for review. The Bureau must determine whether the contract has been entered within 45 days from the date of the account being loaded onto its database. Account numbers and amounts must be reviewed. Signatures, dates and fees must be reviewed. There must be a full disclosure statement in instances where the fee caps are exceeded. Payments must be split. Proof of payment must be included and verified. It is clear the fast track claims can be more efficiently handled via automatic means, while other claims require manual attention. The Bureau is processing a greater number of fast track claims at the present time than it did at the inception of the program. However, the number of claims in the other categories has drastically risen in recent years as well. In fiscal year 2001/2002 the Bureau processed 102,312 claims. That number dropped to 100,437 in 2002/20034. It rose to 163,802 the next fiscal year, 2003/2004. A rise in claims brought the number to 169,288 the next year and then jumped to 226,983 claims in 2005/2006. Thus, in four years the number of claims filed with the state has more than doubled. On August 31, 2005, there were 29,999 claims pending at the Bureau to be processed; that number jumped to 55,111 a year later, on August 31, 2006. For fiscal year 2005/2006, the Bureau received more than $354,000,000 of unclaimed property, paid claims for more than 225,000 accounts worth more than $100,000,000 and transferred more than $267,000,000 into the State School Board fund. That fiscal year's receipts and transfer of funds to the School Board were in excess of $100,000,000 more than fiscal year 2003/2004. While the number of claims has risen dramatically, there has not been a concomitant increase in the number of persons processing the claims. There are approximately ten analysts reviewing claims, but those employees have other duties as well. There are 17 FTEs in the claims section to handle claims, answer telephone inquiries, process mail, etc. Of the available employees, 10 work full-time to process 106 claims, five do the 107 claims, and three or four concentrate on 108 claims. By comparison, fast track claims are handled by two employees who dedicate an hour or two per day to process those claims. The purpose of the Fast Track Claims Process is to reduce the number of claims of other types being handled by the Bureau's staff. The system has resulted in fast track claims being paid fairly quickly, averaging about 20 to 30 days. Other types of claims continue to be processed under the traditional system. Those claims are processed more slowly than fast track claims, resulting in some backlogs. For example, a one-day snapshot of pending claims on August 31, 2005, indicated no 108 claims older than 60 days. On the same date in 2006, there were 8,828 108 claims over 60 days old. While this seems on its face to indicate 108 claims are being paid more slowly, consider that the total number of claims for those two years is significantly different: 7,240 claims in 2005 versus 20,904 claims in 2006. This difference is certainly a factor in the delays experienced by HEA and others getting payments for these type claims. Another factor is that the Bureau experiences cyclical increases in volume. Just after the April 30 reporting cycle (when holders of unclaimed property notify the Bureau), the number of claims seems to increase. This volume has an effect on time frames for processing payments. There is undeniably a four-month period (approximately April to July 2006) that HEA's claims were taking longer to be paid. That time frame roughly correlates to an increase in the number of fast track claims. However, the fast track claims were being paid more slowly during that time as well. There is no evidence as to how quickly or slowly claims were being paid to other businesses or individuals during that time period. The fast track process allows Bureau employees more time to devote to other types of claims. It is a shortcut applicable to a limited number of overall claims. The Fast Track Claims process is encapsulated on a one page diagram located in a 120-plus page document maintained by the Bureau. The current Bureau Chief calls the document a training manual used to teach new employees how to process all types of claims. The manual was formerly referred to as a Policy & Procedure Manual by the Bureau. The manual contains copies of the relevant statutes and rules; it has a history of the Bureau, along with data concerning numbers of claims processed; it explains how electronic transfers work, etc. It does not, in and of itself, constitute a rule. The form used for fast track claims is the same as the existing 106 claim form. It does not generate any rights or require any additional action by persons making a claim for property. (The only difference is that fast track claims are given an F designation and the mailing address for filing the claim is different than the non-fast tract claims address.) The form used for fast track claims is an electronically generated version of the existing 106 form. Claims coming in on the electronically generated form go directly into a specific queue for payment. Those claims do not require additional review by the Bureau so the staff workload is reduced as a result. Although the fast track process applies to some 106 claims, it does not apply to all such claims. Nor does it apply to 108 claims, 110 claims, 112 claims or any other type claim. An applicant is not required to take any additional action because of the fast track claim process. Rather, if the applicant's request is deemed eligible, then it will simply be processed automatically rather than manually. One means of expediting fast track claims is to allow them to be mailed to a different post office box than other claims, but use of a different box is not a rule of general applicability; it is an internal action by the Bureau. Fast track claims, which make up only about 15 percent of all 106 claims, are being processed in an average of 20 to 30 days. The 106 buyout claims are taking longer to process due to the extra verification process. The 106 buy-out claims and 108 claims take approximately the same amount of time to process. All claims of every type have increased dramatically in recent years.
The Issue Whether the amount awarded Petitioner for relocation was a sufficient and proper award.
Findings Of Fact Prior to the acquisition of a highway right of way for project 57050- 2515 in Okaloosa County, Florida the appellant operated a small business on parcel 103, which was needed for the highway. The business was known as Koolie of West Florida, Inc., and among other things sold bottle drinks, blue luster products and large round cakes of soybean meal used for fish bait. On August 23, 1976 the Respondent, Department of Transportation, informed Mr. Dick Carter, the President and Owner of the business of the different options available for reimbursing him for moving expenses. It was explained that if he hired a licensed mover the Florida Department of Transportation could pay the mover on an actual cost basis. It was further explained that if he wished to move the business, using his own personnel, he would be reimbursed up to the amount of the lowest of two commercial bids. One commercial bid was obtained but the requirement of two commercial bids was waived for the reason that Crestview, Florida is a small town and has only one licensed mover. On September 29, 1976, Mr. Carter was informed of the amount of the bid and Mr. Carter chose to move his business himself, although Mr. Carter made known his dissatisfaction with the amount of the low bid. Upon learning of the dissatisfaction with the estimate, the Respondent Department requested Mr. Carter to notify it of the time and date of the move so that any additional moving expenses could be documented. The Department was not informed and the Petitioner moved to its new location. Thereafter, a claim was made for additional moving expenses and a supplemental move cost claim in the amount of $347.25 was offered to the Petitioner and he was notified that if the amount was not satisfactory, an administrative hearing would be arranged. The additional amount was refused and Petitioner requested the subject hearing. The supplemental move cost claim and the supplemental amount allowed, $347.25 was based on the certified inventory sent by the Petitioner to the Respondent. The move took place some four months after the inventory was sent to the Respondent and the Petitioner had expressed its dissatisfaction with the moving reimbursement, but although requested by the Respondent, did not notify the Respondent of the time and date of moving so that a representative of the Respondent could be present to assess the additional cost of moving, if any. Petitioner contends that the inventory sent the Respondent was incorrect and that instead of 200 soybean cakes that had to be moved it was in fact 1000 soybean cakes. Petitioner contends that he should have received $625.00 for 250 cakes of soybean meal which he said were destroyed in moving plus a sum of $97.50 which was in addition to the original estimate by the moving company. Respondent contends that there are provisions for a self move providing the cost is less than a $1000.00 on the lowest of two estimates; that in the City of Crestview there is only one certified mover so a special dispensation was allowed so that the one certified mover would submit an estimate of moving cost; the Petitioner provided an inventory, and an estimate of moving cost was submitted by Shaw, a certified mover. The Petitioner chose to move himself and was offered reimbursement in the amount of the estimate by the certified mover as revised and was also offered reimbursement for one-third loss of 200 cakes of soybean meal inasmuch as this was an uninsurable item. Respondent further shows that all of the inventory except the soybean cakes would have been insured by the mover in the event of breakage or damage and that Petitioner had the choice of being moved by a certified mover or moving himself. Respondent further contends that it properly followed the requirements of law and the Petitioner has been offered payment in accordance with law.
Recommendation Deny the petition. DONE AND ENTERED this 16th day of January, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: C. Thomas Holland, Esquire 440 North Main Street Crestview, Florida 32536 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
The Issue Whether the Respondent is entitled to a credit for unit price work which was not performed under the contract. Whether the contractor is entitled to additional payment for the electrical work on the outside stairwells and interior modifications. Whether the contractor is entitled to additional payment for installing the 3-inch drain for the HVAC discharge. Whether the Respondent is entitled to access $3,750.00 in liquidated damages against the contractor for completing the project ten (10) days beyond the scheduled completion date.
Findings Of Fact Jurisdiction Findings of fact 1 and 2 are approved, adopted, and incorporated herein by reference in their entirety. Credit for Unit Prices The findings of fact 3 through 28 contained in the Recommended Order are approved, adopted, and incorporated herein by reference except for the following: That portion of finding of fact number 15 which states "Such a bid process does not enhance the competitive bidding process or benefit the public." This sentence is rejected in that it is not supported by competent substantial evidence. The Hearing Office erroneously concluded that the inclusion of section 01026 in the bid specifications used by DNR for the Wakulla Springs Project was not in the best interest of the public. This section required that the unit price allowances be included in the base bid. The only evidence regarding the purpose of including the unit price allowances in the base bid was the testimony of Jerry Hicks. Mr. Hicks is a professional architect who has extensive experience in developing bid specifications for governmental contracts. [T. 170-171] Mr. Hicks was retained by DNR to develop the plans and specifications for the Wakulla Springs Project. [T. 173) Mr. Hicks testified that he placed the requirement that the unit price allowances be included in the base bid because the Department had a limited budget and he wanted to ensure that the Department would not be "caught at the end of the project short of funds." [T. 174] The purpose of the provision was to protect the state. [T. 174) The only evidence at the hearing indicated that the bid process used by the Department was to enhance the competitive bidding process and benefit the public by protecting the Department and ensuring the project would not go over budget. That portion of finding of fact number 26 which states: "Based on what he read, Mr. Gray did not think section 01026 required the unit price allowance to be included in the base bid." This sentence is rejected in that it is not supported by competent substantial evidence. Section 01026 of the bid specifications states in pertinent part: The contractor shall provide in his base bid the following work related to unit prices and the separate asbestos abatement contract. A change order will be issued to credit the owner with the difference in cost or charge the owner with additional unit price quantity cost. (emphasis in original) Gray did not allege that bid specification section 01026 was unclear or that he misinterpreted it. Gray's argument was that he did not carefully read the bid specifications and that he assumed the project was a "turn-key" project. Gray's testimony indicates that when Gray carefully read the bid specifications, he agreed that the unit price allowances were suppose to be part of the base bid. When asked on direct examination if there was any reference in the bid specifications concerning unit price allowances and the inclusion of these figures in the base bid, Gray answered that there was, but "they were stuck back in another section." [T. 224] During the cross examination of Mr. Gray, the following testimony was elicited: [T. 266] Q: That is not the question. When you read [the bid specifications document), you just didn't read it carefully. You missed this section [01026]. The section was in there. Did you dismiss it? A: I guess I dismissed it. The evidence clearly indicates that Mr. Gray understood section 01026 of the bid specifications to require unit price allowances in his base bid, but he either did not read the bid specifications or he did not follow them. There is no evidence to the contrary. Gray made a mistake because he did not read the bid specifications carefully and made assumptions about the nature of the project, not because the specifications were unclear. The Hearing Officer erred in concluding that Gray found the bid specifications unclear because it is contrary to the evidence and the assertions of Gray himself. The following findings of fact are adopted in addition to those delineated by the Hearing Officer: Section 01026 of the bid specifications clearly states that the unit price allowances are to be included in the base bid. contract. Petitioner completed $442,992.00 worth of work on the initial Stairwell Amendment Findings of fact 29 through 38 are approved, adopted, and incorporated by reference in their entirety. The HVAC Drain Findings of fact 39 through 43 are approved, adopted, and incorporated by reference in their entirety. Liquidated Damages Findings of fact 44 through 49 are approved, adopted, and incorporated by reference in their entirety. Prejudgment Interest Findings of fact 50 and 51 are approved, adopted, and incorporated by reference in their entirety.
Conclusions These conclusions are based upon all of the Findings of Fact made heretofore. The standard upon which the award of prejudgment interest is the definability of the amount in controversy. In Bergen Brunswig Corporation v. State Department of Health and Rehabilitative Services, 415 So.2d 765, the First District Court of Appeal said, " in Florida there has evolved a principle that prejudgment interest may be awarded when damages are a fixed sum or an amount readily ascertainable by simple calculation . . . . However, we now determine that the better view is expressed in the case of Tech Corp. v. Permutit Co., 321 So.2d 562 (Fla. 4DCA 1975), where the court held that, for the purpose of assessing prejudgment interest, a claim becomes liquidated and susceptible of prejudgment interest when a verdict has the effect of fixing damages as of a prior date." Using either test, Petitioner is entitled to prejudgment interest because the amount of money at issue was defined by the contract or by the proposed change order. All parties were always aware of the exact amounts in the change order claims, and all parties knew that the money was due Petitioner after the contract was completed on August 20, 1990. The parties even stipulated to the amounts in controversy: the amount withheld by the Respondent for unit price work is stipulated to be $33,444.60, and the amount due and unpaid on the claim for the HVAC drain was $1,014.85. Therefore, the Petitioner is entitled to prejudgment interest on certain amounts owed him by the Respondent at the statutory rate of 12 percent. The computation of the amount of interest due is ministerial. The damages per day for each day of delay were fixed by the contract at $250.00 per day; however, the number of days involved was subject to evidentiary determination. The excess amount withheld for damages for not finishing on time is $750.00. See "Delay" above. The $750.00 is not subject to prejudgment interest.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that the Respondent pay the Petitioner $750.00, plus $34,459.45, and prejudgment interest on the $34,459.45 in the amount of 12 percent per annum since August 20, 1990. RECOMMENDED this 16th_ day of September, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 16th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0257 Petitioner's Proposed Findings of Fact Rejected; not a fact. Subsumed in paragraph 12 of the Recommended Order. 3-4. Rejected as irrelevant. Rejected as a conclusion of law. Adopted as paragraph 15 of the Recommended Order. Rejected as irrelevant. Subsumed in finding on substantial completion in paragraph 46 of the Recommended Order. Respondent's Proposed Findings of Fact Adopted. Subsumed in paragraphs 6, 8, and 11 of the Recommended Order. Adopted as paragraph 11 of the Recommended Order. Adopted as paragraph 14 of the Recommended Order. Adopted as part of paragraph 14 of the Recommended Order. Rejected as irrelevant. Rejected as irrelevant. Rejected as unnecessary. Rejected as unnecessary. Adopted. The facts on the amounts of the total contract were unnecessary because the amount in controversy and the amount withheld were stipulated to or presented as facts. Adopted as paragraph 8 of the Recommended Order. Adopted as paragraph 8 of the Recommended Order. Adopted as paragraph 9 of the Recommended Order. Adopted as paragraph 5 of the Recommended Order. Adopted as paragraph 5 of the Recommended Order. Adopted as paragraph 17 of the Recommended Order. 18-19. Subsumed in paragraphs 17 and 18 of the Recommended Order. 20. Adopted as paragraph 19 of the Recommended Order. 21-22. Subsumed in paragraphs 19 and 20 of the Recommended Order. 23-26. Subsumed in paragraph 47 of the Recommended Order. 27-28. Adopted as paragraphs 18 and 21 of the Recommended Order. 29. Rejected as unnecessary. Paragraph 28 states the amount in controversy. 30-31. Adopted as paragraph 12 of the Recommended Order. 32. Rejected as irrelevant. 33-34. Adopted as paragraphs 4 and 12 of the Recommended Order. 35. Rejected as irrelevant. 36-38. Adopted as paragraphs 4 and 12 of the Recommended Order. Adopted as paragraph 26 of the Recommended Order. Adopted as paragraph 13 of the Recommended Order. 41-43. Adopted as paragraph 24 of the Recommended Order. Adopted as paragraph 25 of the Recommended Order. Rejected as contrary to facts. Adopted as paragraph 26 of the Recommended Order. Adopted as paragraph 27 of the Recommended Order. Adopted as paragraph 26 of the Recommended Order. Rejected as contrary to facts. Rejected as irrelevant. Adopted as paragraph 29 of the Recommended Order. Adopted as paragraph 30 of the Recommended Order. Adopted as paragraph 31 of the Recommended Order. Adopted as paragraph 32 of the Recommended Order. Adopted as paragraph 33 of the Recommended Order. Adopted. Adopted as paragraph 36 of the Recommended Order. Adopted as paragraph 35 of the Recommended Order. Rejected as a conclusion of law. Adopted as paragraph 38 of the Recommended Order. Adopted as paragraph 39 of the Recommended Order. Adopted as paragraph 40 of the Recommended Order. Rejected as contrary to facts. Adopted as paragraph 40 of the Recommended Order. Rejected as contrary to facts. Adopted as paragraph 44 of the Recommended Order. Rejected as irrelevant. Rejected as irrelevant. 69-70. Adopted as paragraph 47 of the Recommended Order. Adopted as paragraph 48 of the Recommended Order. Rejected as contrary to facts regarding HVAC. COPIES FURNISHED: Mr. Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-0300 Ken Plante, Esq. General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-0300 Michael F. Coppins, Esq. DOUGLASS, COOPER, ET AL. 211 East Call Street Box 1674 Tallahassee, FL 32302-1674 Lynne Chapman, Esq. Kelly Brewton, Esq. Department of Natural Resources 3900 Commonwealth Boulevard MS-35, Douglas Building Tallahassee, FL 32399-2400
