The Issue The central issue in this case is whether B&L is the lowest responsive bidder to HRS Medicaid transportation services RFP for fiscal year 1988-89.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On March 18, 1988, HRS issued a request for proposal (RFP) for contractual services, the Medicaid transportation services for fiscal year 1988- The proposals were to be opened April 15, 1988. The contract manager for the Medicaid Program Office was identified as Vera Sharitt. All questions pertaining to the provisions of the RFP were to be in writing addressed to Ms. Sharitt. The RFP identified seven categories of transportation which required response. In the instant case, NEMT, AAA, and B&L all submitted proposals for each of the categories. All proposals were first reviewed to determine whether or not they met the requirements set forth in the fatal items checklist. This review was performed by Vera Sharitt. All bid responses were deemed in compliance with the fatal items and were, therefore, submitted to the five member evaluation committee for further review. Committee members then used a ating sheet to determine which proposal was the most advantageous to the state. The evaluation committee weighed each proposal on the basis of five criteria: proposal requirements; response to statement of purpose/need project understanding; method of service provision; references; and rate analysis. The proposal receiving the highest total of points was deemed the most advantageous to the state. In each of the seven transportation categories, B&L received the highest total of points from the evaluation committee members. The evaluation committee met on May 16, 1988. Present at this meeting were: Kent Rice, Connie Klein, Magna Salas, Susan Pippitt, Urban Myers, Vera Sharitt, and Cathy N. D'Heron. In response to a suggestion made by Vera Sharitt, the committee members agreed to assign set points to the rate analysis portion of the rating sheet. Accordingly, the lowest rate was given 10 of the possible 10 points, the second lowest was given 5 of the possible 10 points, and the third lowest was given 1 of the possible 10 points. In the event of a tie, both proposals received the same points. The RFP had included a sample rating sheet which had specified that the rating analysis would be computed on a 0-10 scale. The committee determined that the proposed assignment of 10-5-1 was within the published range but that it would be unfair to give the highest rate 0 points. At no time during the evaluation committee meeting did Vera Sharitt improperly influence or attempt to influence the members' scoring of points. Ms. Sharitt did not interfere with the evaluation process nor did she attempt to favor one proposal over another. Further, there is no evidence which suggests that Ms. Sharitt improperly influenced or attempted to influence evaluation committee members outside of the meeting conducted on May 18, 1988. The fatal items checklist for the RFP asked six cuestions which related to information required to complete a proposal. The absence of any one of the required items would have resulted in the disqualification of the proposal. At issue in this case are the following provisions of the fatal items: Was the fatal items envelope received by the time and date specified in the RFP? Ambulatory Services: Did the proposer submit a copy(ies) of taxi and/or limousine permits? Did the proposer submit proof of registration from the Florida Division of Motor Vehicles? Wheelchair/Stretcher Van Services: Did the proposer submit a copy of county licensure? Did the proposer submit proof of vehicle liability insurance which included insurer name, address and phone number, policy number, vehicles covered as identified by vehicle identification number, liability limits and policy effective/expiration dates? Did the proposer submit a statement that the proposer agrees to all contract terms and conditions? Did the proposer submit the statement regarding no involvement? In reviewing the information submitted under the fatal items checklist, Vera Sharitt determined that if the information sought could be found in any of submitted materials, the proposer would be deemed qualified. Thus, in the case of B&L, Ms. Sharitt found that the insurance coverage for the vehicles, which named B&L as the insured, corresponded to the vehicles identified on the vehicle registrations submitted. Having made the connection to relate proposer to insurance and vehicles, the actual ownership of the vehicles (in this case in the name of a third or fourth entity) Ms. Sharitt deemed to be unimportant. The same approach was applied to the submittals made by AAA and NEMT. The RFP did not require that vehicles identified in a proposal be titled in the name of the proposer. No proposer challenged the terms of the RFP or the fatal items checklist. All three proposers, NEMT, AAA and B&L, complied with the fatal items requirements as consistently reviewed by Ms. Sharitt. Based upon the terms of the RFP and the fatal items checklist, Ms. Sharitt's review and finding that all proposers were qualified was reasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order awarding the contract for Medicaid transportation services, fiscal year 1988-89, to B & L Services, Inc. DONE and RECOMMENDED this 16th day of September, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-3157BID, 88-3158BID Rulings on Proposed Findings of Fact submitted by Petitioner, NEMT: Paragraph 1 is rejected as contrary to the weight of the evidence submitted, argumentative and a conclusion of law erroneous to the facts of this case. Paragraph 2 is rejected as contrary to the weight of the evidence submitted. Paragraph 3 is rejected as contrary to the weight of the evidence submitted. Paragraph 4 is rejected as irrelevant, immaterial or contrary to the relevant evidence submitted. Paragraph 5 is rejected as irrelevant, immaterial or contrary to the relevant evidence submitted. Paragraphs 6,7,8 and 9 (including all subportions therein) are rejected as irrelevant or contrary to the weight of the credible evidence submitted. Paragraph 10 is rejected as argument or conclusion of law erroneous to the facts of this case. Paragraph 11 is rejected. There is no evidence which would suggest B&L acted as a "front" for another entity or entities. Paragraph 12 is rejected as argument unsupported by the record in this cause. Paragraph 13 is rejected All parties waived any contest of the rating criteria by not timely challenging the terms of the RFP. Further, the terms as applied in this instance have not been arbitrarily or capriciously used to prejudice any proposer. Paragraph 14 is rejected as contrary to the weight of the evidence presented. Paragraph 15 is rejected as argument or a conclusion of law which, although correctly stated, is not applicable to the facts of this case. Paragraphs 16 and 17 are rejected as argument. Paragraph 18 is accepted to the extent it states Robert J. Siedlecki/NEMT Corp. was a qualified bidder; however, to the extent such paragraph concludes the bidder qualified was NEMT, the paragraph is rejected as contrary to the weight of the evidence presented. Rulings on NEMT's findings as to AAA: 1. Paragraphs 1-5 are rejected as contrary to the weight of the relevant and material evidence submitted. It should be further noted that NEMT does not have standing to contest the award to B&L given the finding that AAA did, in fact, comply with the fatal items checklist. Being a qualified proposer, AAA stood next in line to receive the contract not NEMT. The submissions made by NEMT with the proposed findings of fact have not been considered as evidence in this case. Rulings on the proposed findings of fact submitted by AAA: Inasmuch as this petitioner's proposed findings were not in numbered paragraphs, ruling has been made based upon the order of presentation. The first paragraph being considered paragraph 1. Paragraph is accepted as the applicable rule governing the fatal items checklist. Paragraph 2 is rejected as contrary to the weight of the evidence. Paragraph 3 is rejected as irrelevant, immaterial or contrary to the weight of the credible, relevant evidence. Paragraph 4 is rejected as irrelevant, immaterial or contrary to the weight of the evidence; additionally, such conclusion falls outside of the scope of this petitioner's contest. Paragraph 5 is rejected as contrary to the weight of the evidence. Ms. Sharitt also testified that the connection between B&L and the other entities was based upon insurance documentation submitted with the proposal. Paragraph 6 is rejected as a conclusion of law which, while correctly stately, is not a finding of fact and which has been erroneously applied. Paragraph 7 is rejected as irrelevant, immaterial or contrary to the evidence presented. The first five sentences of paragraph 8 are accepted. The balance of the paragraph is rejected as contrary to the weight of the credible evidence submitted. Paragraph 9 is rejected as unsupported by the record or contrary to the evidence submitted. Rulings on the proposed findings of fact submitted by HRS: Paragraphs 1-10 are accepted. To the extent paragraph 11 conforms with the findings made in paragraphs 5, 6, & 7 they are accepted. Otherwise the paragraph is rejected as contrary to the evidence presented. Paragraphs 12-14 are accepted. Rulings on the proposed findings of fact submitted by B&L: It is presumed the submittal reviewed below was from B&L; however, no identifying statement was included in the text of the proposal itself. The presumption is based on the fact that all other submittals were clearly identified by party name. Paragraphs 1-5 are accepted. Paragraph 6 is accepted see findings made in paragraph 8 as to the exact language of the fatal items checklist. Paragraph 7 is accepted. Paragraphs 8, 9, and 10 are accepted. The first two sentences of paragraph 11 are accepted; the balance of the paragraph is rejected as irrelevant or immaterial to the issues framed in this cause. COPIES FURNISHED: Robert J. Siedlecki 5890 Rodman Street Hollywood, Florida 33023 Brian M. Berman 2310 Hollywood Boulevard Hollywood, Florida 33020 Lawrence F. Kranert, Jr. Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 John M. Camillo 301 Southeast 10th Court Fort Lauderdale, Florida 33316 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondents committed the offenses alleged in the Administrative Complaints.
Findings Of Fact Respondent William Negron holds a Class "E" Recovery Agent License (number E91-00022) and a Class "C" Private Investigator License (number C93-00478). Respondent Collateral Services of America, Inc. (CSA) holds a Class "R" Recovery Agency License (Number R91-00085). On October 2, 1998, Respondents repossessed an auto carrier from a debtor pursuant to a subcontract from MDL & Associates, which is a recovery agency owned by Mark and Debbie Lasik. This auto carrier was loaded with motor vehicles. Respondents regularly employ Jose Castellanos to perform services on a piecework basis. Mr. Castellanos and one of his associates were hired by Respondents to unload the motor vehicles that were on the auto carrier. Respondents paid Mr. Castellanos and his associate the sum of $200.00 to unload the autos from the auto carrier. There was no evidence that this sum was unreasonable. Respondent Negron timely reported the repossession of the auto carrier to the Miami Springs Police Department, the police department with jurisdiction of the area in which the repossession occurred. Mr. Negron testified, credibly, that he told the police officer to whom he made the report who he was and that he had repossessed the auto carrier pursuant to a subcontract with Mark Lasik, a principal of MDL & Associates. The police report reflected that the recovery was made by MDL & Associates and that the contact person at MDL & Associates was Mark Lasik. The police officer who took the report from Respondent did not testify at the formal hearing. On or about January 23, 1998, Respondent Negron repossessed a 1997 BMW automobile. Respondent Negron, in completing a condition report 1/ for the BMW, reported that the mileage was 13,000 miles. The BMW had a digital readout, so that the mileage could not be read without the car being turned on. Respondent Negron testified that his company had the key and that one of his employees read the mileage and reported the same on the condition report. 2/ The BMW was stolen from Respondents' storage facility and subsequently recovered by law enforcement. Gold Coast Towing towed the stolen BMW for law enforcement and completed a report reflecting that the mileage was 12,499. There was no evidence as to whether Gold Coast Towing estimated the mileage or whether it had a key to the car and actually read the mileage. Adrian Lopez was employed as a Recovery Agent Intern on or about January 13, 1998. Respondent Negron was Mr. Lopez's sponsor as a Recovery Agent Intern. On January 11, 1999, Mr. Lopez filed a complaint with Mr. Wood against Respondents because he had been unable to get credit from Petitioner for the time he had worked for Respondents as an intern. Petitioner admitted into evidence the licensure file of Mr. Lopez. This file contains an Intern Biannual Progress Report for the period January 23, 1998 to July 23, 1998. This form was signed and notarized on July 24, 1998, by Mr. Negron as sponsor for Mr. Lopez. The form was not time-stamped when received by Petitioner. The copy of the form submitted into evidence by Petitioner contains a fax footprint reflecting that the copy was faxed by CSA on January 13, 1999. Whether it was faxed directly to Mr. Wood was not established. There is no allegation that this report was not timely. Also on January 13, 1999, Respondents faxed to Petitioner a form reflecting that Mr. Lopez's employment had been terminated. This termination notice was dated January 11, 1999. There was no allegation that this notice was not timely. Respondents did not submit a biannual report for the internship of Mr. Lopez for the period July 24, 1998 through January 13, 1999. Because that report was not filed, Mr. Lopez had difficulty establishing the amount of internship credit to which he was entitled. Mr. Wood, after reviewing Respondents' records, determined that Mr. Lopez was entitled to seven months of credit. Mr. Lopez receives disability income benefits from the Department of Labor. After Mr. Lopez filed his complaint, Mr. Negron telephoned him and threatened to report to the Department of Labor that Mr. Lopez received much more money than he actually was paid. This was an attempt to coerce Mr. Lopez into withdrawing the complaint since such a report would jeopardize Mr. Lopez's disability benefits. There was no evidence that Mr. Negron made any type of report with the Department of Labor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the allegations contained in DOAH Case No. 99-2759 and those in Counts II and III of DOAH Case No. 99-3022. It is further RECOMMENDED that the final order find Respondents guilty of the violations alleged in Count I and Count IV of DOAH Case No. 99-3022, and that it impose an administrative fine against Respondents in the amount of $150.00 for each violation. DONE AND ENTERED this 11th day of April, 2000, in Tallahassee, Leon County, Florida CLAUDE B. ARRINGTON 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 11th day of April, 2000.
The Issue The issue presented is whether Petitioner City of Opa Locka is responsible for reimbursing the Department of Transportation for the cost of relocating water and sewer lines owned and maintained by Petitioner within the State Road 916 right-of-way.
Findings Of Fact Opa Locka Boulevard and N. W. 135 Street in Dade County, Florida, are paired one-way streets between I-95 and N. W. 27 Avenue. They are located within the city limits of the City of Opa Locka and have been designated as State Road 916. Public records reveal that the portions of Opa Locka Boulevard and N. W. 135 Street which were involved in the Department’s road construction project and the right-of-way attendant to those streets were dedicated to perpetual public use by private landowners platting subdivisions between 1928 and 1956. In 1959 the City of Opa Locka transferred those roadways and rights-of-way to Dade County, Florida, so that the County would be responsible for maintaining them. In 1979 Dade County transferred its interests to the Department. The State Road 916 designation was subsequently made. The Department determined the need to improve those streets by widening them and making other improvements such as installing drainage and lighting. As the Department prepared to begin that project, it conducted a utility pre-design meeting on May 26, 1992. Such a meeting involves the Department’s employees who will be supervising portions of a road improvement project and representatives of the owners of utilities located within the area of anticipated construction. The owners of utilities are advised as to the details and extent of the anticipated construction, and they mark maps as to the location of their utilities. As the road design process proceeds, agreements are made and relocation schedules are prepared. If practical, the Department will design the road around utilities which conflict with the location of the roadway. If designing around the utility is not practical, the owner is required to relocate any utility which conflicts with the Department’s roadway or which interferes with the construction project. If the utility owner intends to relocate its own utilities, a Utility Relocation Schedule is agreed upon by the owner and the Department. If the owner requests that the Department do the relocation work and agrees to pay the costs in advance, a Joint Participation Agreement is entered into, and the Department’s contractor performs the work. The City’s consulting engineer attended the May 1992 utility pre-design meeting and attended many subsequent meetings. Subsequent meetings were also attended by the City’s public works director and the City’s project engineer. During the pre-design and design stages of the road project, the Department was able to design around all utilities or obtain voluntarily removal or relocation by all utility owners except the City. The City maintained that it could not afford to remove or relocate its water and sewer lines. Both the City and the Department were very concerned about the location of the City’s lines and about the lines themselves. The lines were made of cement asbestos and were old. Cement asbestos lines cannot withstand nearby construction and will break. Neither the Department nor the City wanted the lines to break during construction, and the Department did not want to build new roads and have the lines underneath breaking afterward, requiring re-construction. As feared, the City’s sewer line ruptured while another utility owner was relocating its utilities in the area of the City’s sewer line prior to the Department’s construction work. Further, as a result of that other utility owner’s relocation work, it was discovered that the City’s water and sewer lines within the project limits were not in fact located where the City’s maps of the lines reflected. Therefore, the City’s utilities posed a danger to the construction project, and the Department could not allow the lines to remain wherever they were. Due to the City’s position that it could not afford to remove or relocate its water and sewer lines and due to the Department’s need to proceed with the construction project, the Department and the City’s representatives agreed that the Department would issue to the City a 30-day notice to remove or relocate, but the City would not do so. The Department would then do the work for the City, and the City would reimburse the Department for its costs under a reimbursement plan yet to be negotiated. That meeting was attended by the City’s consulting engineer, the City’s former public works director, and the City’s current public works director. Everyone attending agreed that the lines needed to be replaced with newer, stronger lines. The Department agreed to issue the 30-day notice, do the work, and then seek reimbursement from the City since doing so was the only solution to the problem which would allow the road project to proceed without substantial damages and increased costs due to delay. Based upon that agreement and the City’s inability to pay the costs of relocating its water and sewer lines, no Utility Relocation Schedule or Joint Participation Agreement was entered into by the City and the Department. The City’s consulting engineer drew preliminary plans for the relocation of the City’s utilities, and the Department submitted those plans to its contractor to obtain bids for the City’s relocation work. The contractor priced the work and obtained three bids. The subcontract was awarded, the prime contractor added its overhead costs, and that became the anticipated cost. The Department kept the City advised as to additional costs as they were incurred. On July 7, 1993, the Department issued its 30-day notice to the City, expecting the City to respond in the agreed non-adversarial manner. Instead, the City requested this administrative proceeding. As the work was actually performed, the City expressed no disagreement with the materials used or the construction techniques. The City’s representatives were frequent visitors to the construction site since the actual work disclosed more problems. Not only were the City’s utilities not located where the City indicated they were but also the construction crews encountered lines which the City did not know existed. These problems caused additional delays in the project and thereby caused additional expenses to the Department. The reasonable and necessary costs incurred by the Department to remove and relocate the City’s utilities within the project limits total $791,751.07
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered finding Petitioner City of Opa Locka responsible for reimbursing the Department of Transportation in the amount of $791,751.07 for the costs incurred in relocating and replacing the City's water and sewer utilities. DONE AND ENTERED this 23rd day of April, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1997. COPIES FURNISHED: Patricia C. Ellis, City Attorney City of Opa Locka 777 Sharazad Boulevard Opa Locka, Florida 33054 Francine M. Ffolkes Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation c/o Diedre Grubbs Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issues are whether the specifications in two requests for architectural and construction management services violate Subsection 120.57(3)(f), Florida Statutes (2003), for the reasons alleged in two written protests.
Findings Of Fact Petitioner is a general contractor/construction management firm in the State of Florida. The firm maintains its principal office in Tampa, Florida, and provides construction management services throughout the state. The state previously certified Petitioner as a certified minority business enterprise (MBE), and that certification remains current. Mr. Paul Curtis is the president and chief executive officer (CEO) of Petitioner, a majority shareholder, and an African-American. Petitioner's president and CEO is licensed by the state as a general contractor, underground utilities and excavation contractor, pollutant storage systems and specialty contractor, and specialty structures contractor. However, Petitioner does not employ any person qualified to provide architectural services. Respondent is a local school district of the state. Respondent is responsible for the construction, renovation, management, and operation of the public schools in Hillsborough County, Florida. Respondent routinely obtains the services of architects, engineers, and other professionals through competitive procurement in accordance with Section 287.055, Florida Statutes (2003), the Consultants' Competitive Negotiation Act (CCNA). On December 30, 2003, Respondent posted on its website, a request for proposals (RFP) for architectural and construction management services. On January 20, 2004, Respondent posted a second RFP for architectural and construction services. The two RFPs seek architectural services and construction management services incident to the construction or expansion of approximately 12 public schools (the project). The proposed budget for the project is approximately $66.37 million. Respondent seeks to complete the projects to comply with minimum class-size requirements recently imposed by the state. Petitioner did not submit responses to either RFP at issue in this proceeding. Rather, Petitioner protested the specifications in each RFP. On January 5 and 20, 2004, Petitioner timely served Respondent with respective notices of intent to protest each RFP. On January 15 and February 2, 2004, Petitioner timely served Respondent with a formal written protest of each RFP. Petitioner alleges that each RFP is deficient for identical reasons. First, the RFPs allegedly violate the requirement in Subsection 120.57(3)(a), Florida Statutes (2003), to notify potential bidders that failure to protest the specifications in each RFP within the statutorily prescribed time, waives their right to protest either RFP (the statutory notice). Second, the RFPs allegedly fail to adequately disclose selection criteria used to select a successful applicant. Third, the RFPs allegedly violate MBE guidelines in Subsection 287.055(3)(d), Florida Statutes (2003). Fourth, the evaluation criteria are allegedly confusing or ambiguous and make it impossible to determine the basis upon which Respondent awards points. Finally, Respondent allegedly failed to consider the recent volume of work of each applicant in violation of Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003). Neither RFP includes the statutory notice. Subsection 120.57(3)(a), Florida Statutes (2003), requires Respondent to provide the statutory notice in any notice of decision or intended decision (notice of decision). Florida Administrative Code Rule 28-110.002(2)(a) defines a notice of decision to include the RFPs. Subsection 120.57(3), Florida Statutes (2003), requires Respondent to "use the uniform rules of procedure" prescribed in Florida Administrative Code Rule 28-110.002. Each RFP is a notice of decision that omits the required statutory notice in violation of Subsection 120.57(3)(a), Florida Statutes (2003). Respondent's violation of Subsection 120.57(3)(a), Florida Statutes (2003), did not result in any injury in fact to Petitioner. Petitioner received actual notice of each RFP and timely protested each RFP. Respondent issued the RFPs and partially evaluated the responses to them in accordance with a procedure prescribed in a publication that the parties identified in the record as Chapter 7.00 of the School Board Policies and Procedures Manual (the Policy Manual). In general, the Policy Manual requires a Professional Services Selection Committee (the Committee) to conduct at least two rounds of evaluation before Respondent can select a successful applicant. During the first round, each member of the Committee evaluates each application in accordance with the evaluation criteria prescribed in a Project Information Packet incorporated by reference in the RFP and made available to each applicant. Each Committee member assigns a point total for each response (a score). The Committee then designates a threshold score that an applicant must attain in order to advance to the second round of evaluation that involves face-to-face interviews. The Committee prepares a list of those applicants that attain scores sufficient to advance to the second round of evaluation. The parties identified as the "short list," the list of applicants that qualify for the second round of evaluation. In practice, the short list usually includes more than three applicants thereby necessitating a third round of interviews. Once the Committee prepares the short list, Respondent issues a second notice of decision within the meaning of Subsection 120.57(3)(a), Florida Statutes (2003). Respondent sends the notice to all applicants that submitted a response to an RFP. The second notice of decision informs each applicant of the applicant's score and identifies those applicants selected to advance to the second round of evaluation. The second notice of decision includes the statutory notice required in Subsection 120.57(3)(a), Florida Statutes (2003). The deadline for submitting applications in response to the first RFP was January 16, 2004. By January 15, 2004, Respondent had received approximately 30 applications from architects and approximately 30 applications from construction managers. By January 15, 2004, the Committee had evaluated the responses it had received and determined a short list. Respondent had notified the applicants of their respective scores and identified those applicants selected for interviews in the second round of evaluations. When Petitioner filed a written protest of the first RFP, Respondent suspended further evaluations of the applicants pursuant to Subsection 120.57(3)(b), Florida Statutes (2003). Respondent notified bidders of the short list prior to the deadline for filing responses to the RFPs on January 16, 2004. The written protests do not challenge Respondent's issuance of an apparently premature notice of decision. Petitioner submitted no relevant findings of fact or conclusions of law in its PRO concerning Respondent's practice. Nor did the PRO cite to any evidence of record to support a finding concerning Respondent's practice. The deadline for submitting applications in response to the second RFP was February 6, 2004. Petitioner filed a written protest on February 2, 2004. Respondent stopped accepting applications in response to the second RFP in accordance with Subsection 120.57(3)(b), Florida Statutes (2003). The specifications for each RFP adequately disclose selection criteria to prospective applicants, including criteria to be used for interviews during the second round of evaluation. Petitioner's PRO includes no findings of fact or conclusions of law relevant to this issue. Nor does the PRO cite to any evidence of record that supports a finding concerning the issue. The two RFPs disclose selection criteria to prospective applicants in the same manner. Each RFP includes the following statement: Any applicant interested in providing either architectural or construction management services shall make application by submission of materials prescribed in the Project Information Packet. The Project Information Packet, additional project information, and the weights associated with each qualification and evaluation criteria can be obtained by contacting the Planning & construction Office at (813)272-4112 or via the Internet. . . . Each RFP contains a separate Internet address. Respondent published the foregoing statement in three area newspapers and on Respondent's official website. Petitioner received notice of the RFPs on the official website. The Project Information Packets include a list of the members of the Committee, a summary of Respondent's procedures for acquiring professional services, a two-page chart of the evaluation criteria, and a selection activity schedule. Respondent made the Project Information Packets available to prospective applicants in hard copy and electronically on Respondent's official web site. The Project Information Packets adequately identify and describe evaluation criteria and the weight assigned to each criterion, including those to be used during interviews. The evaluation criteria are not confusing or ambiguous. The language used to describe the criteria does not make it impossible for prospective applicants to determine the basis upon which the Committee will award points. Petitioner's PRO includes no findings of fact or conclusions of law relevant to this issue. Nor does the PRO cite to any evidence of record to support a finding that the criteria are confusing or ambiguous. DOAH previously approved Respondent's selection criteria. In RHC & Associates, Inc. v. Hillsborough County School Board, DOAH Case No. 02-3138RP (October 11, 2002), ALJ T. K. Wetherell, II, concluded that the Policy Manual is a valid exercise of delegated legislative authority. In RHC & Associates, Inc. v. Hillsborough County School Board, DOAH Case No. 02-4668BID (January 3, 2003), ALJ Wetherell concluded that the specification factors and weight assigned to each, comply with the CCNA and are not otherwise arbitrary, capricious, or contrary to competition. After the decisions in the two RHC cases, Respondent slightly adjusted the weights given to certain criteria in order to increase minority and small business participation. Respondent made the adjustments after consulting with the NAACP. In relevant part, Respondent increased the weight given for an applicant's resume from 20 to 25 points. Respondent increased the weight given for recent volume of business with Respondent from 5 to 10 points. Respondent decreased the weight given for Project/Applicant Correlation from 25 to 15 points. The changes to the weights assigned to certain evaluation criteria after the two RHC cases comply with the CCNA, are not confusing or ambiguous, and do not make it impossible for prospective applicants to determine the basis for awarding points. The specifications for each RFP do not violate MBE guidelines in Subsection 287.055(3)(d), Florida Statutes (2003). Petitioner's PRO includes two proposed findings relevant to this issue. The two proposed findings are correct, but not material. Respondent has no practice or procedure in place to certify prospective applicants as MBEs. Rather, Respondent registers an applicant as an MBE if the applicant has been certified as an MBE by another agency. Both public and private agencies, sometimes for a fee to private consultants, certify MBE firms. The National Minority Association certifies companies as MBEs for a fee. Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003), contain no express requirement for Respondent to independently certify applicants as MBEs. The former provision requires Respondent to evaluate whether an applicant is a certified MBE. The latter provision requires Respondent to determine whether an applicant is qualified based on prescribed factors that include certification as an MBE. Petitioner cites no legal precedent that authorizes the ALJ to construe either statutory provision to require Respondent to independently certify applicants for either RFP. Petitioner cites no other legal authority to support its allegation that Respondent must independently certify applicants as MBEs. Respondent's policy of accepting MBE certifications by other agencies and private companies is reasonable. Independent certification would be redundant and a waste of taxpayer resources. Respondent relies on a company identified in the record as Morrison & Associates to conduct background checks on every applicant claiming to be certified as an MBE. In addition, Respondent's Office of Supplier Diversity maintains certification information for new contractors and subcontractors. The Office of Supplier Diversity confirmed for the Committee that each applicant claiming to be an MBE was in fact certified as an MBE. The Committee awards each applicant with an MBE certification the maximum number of points in that category. If Petitioner were to have submitted an application for either RFP, the Committee would have awarded Petitioner the maximum number of points available for MBE certification. Respondent properly determined the volume of work of each applicant in accordance with Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003). Respondent defines the phrase "recent volume of work" to mean the dollar amount of work performed for Respondent as a construction manager or architect within five years of the date of determination. Respondent awards the maximum number of points to applicants who have not performed any work for Respondent in the previous five years. Respondent determines recent volume of work based on information that does not include work performed by subcontractors. Petitioner has performed work for Respondent in the past, but only as a subcontractor. Petitioner last performed work for Respondent approximately seven years ago. If Petitioner were to have submitted an application for either RFP, the Committee would have awarded Petitioner the maximum number of points for recent volume of work. The information that the Committee would have reviewed would not have identified the work previously performed by Petitioner as a subcontractor. Moreover, the work was performed more than five years ago. Petitioner is a nonprevailing adverse party within the meaning of Section 120.595, Florida Statutes (2003). Petitioner failed to change the outcome of Respondent's proposed use of the RFPs to obtain construction and architectural services for the project. Petitioner did not participate in the proceeding for an improper purpose. The issue of whether Respondent must include the statutory notice in the RFP specifications is a justiciable issue of law. Petitioner's participation in this proceeding was not for a frivolous purpose. Respondent is the prevailing party in this proceeding. Respondent did not submit evidence concerning the amount of attorney's fees and costs that Respondent incurred to defend the written protests or the reasonableness of those fees and costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent issue a Final Order dismissing the two protests. DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2004. COPIES FURNISHED: W. Crosby Few, Esquire Few & Ayala 501 East Kennedy Boulevard, Suite 1401 Tampa, Florida 33602 Arnold D. Levine, Esquire Levine, Hirsch, Segall, Mackenzie & Friedsman, P.A. 100 South Ashley Drive, Suite 1600 Tampa, Florida 33602 Thomas Martin Gonzalez, Esquire Thompson, Sizemore & Gonzalez 501 East Kennedy Boulevard, Suite 1400 Post Office Box 639 Tampa, Florida 33602 Dr. Earl J. Lennard, Superintendent Hillsborough County School Board Post Office Box 3408 Tampa, Florida 33601-3408 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: l. At all times pertinent to this proceeding, the Department was the state agency responsible for receiving applications for, and the issuance of, general permits for the construction and operation of a construction and demolition debris disposal facility in the State of Florida. Petitioner Frank Strout, submitted an application for a General Permit for the construction and operation of a Construction and Demolition Debris Disposal Facility with the Department dated April 26, 1995, which was received by the Department on May 2, 1995. On May 16, 1995, the Department issued a Notice of Denial to Use a General Permit advising the Petitioner that his request for operation of a construction and demolition debris disposal facility did not qualify for a general permit based on the information submitted by Petitioner in his application dated April 26, 1995, and received by the Department on May 2, 1995. The property upon which the proposed construction and debris disposal facility was to be placed is located at 11163 Agnes Avenue, Southwest, Arcadia, DeSoto County, Florida, and is owned by Petitioner Frank Strout. This location is the same as the location of the construction and demolition debris facility owned by Petitioner that previously operated under a permit issued to Petitioner in April, 1990, which expired due to Petitioner's failure to timely file for an extension of that permit with the Department. However, the disposal area will not cover the entire area of the disposal area of the previous permitted facility. The Notice advised Petitioner that he had not provided the Department with supporting information demonstrating compliance with the construction demolition debris disposal requirements of Chapter 62-701, Florida Administrative Code, as follows: The prohibitions of Rule 62-701.300(2), Florida Administrative Code, have not been addressed. Documentation indicating that the site does not violate these prohibitions was not provided. The airport requirement of Rule 62- 701(12), Florida Administrative Code, was not addressed. Information indicating the location of airports within a 5 mile radius of the site was not provided. A site plan which meets the requirements of Rule 62-701.803(1)(a), Florida Administrative Code, was not submitted. A geotechnical investigation which meets the requirements of Rule 62-701.420, Florida Administrative Code, was not submitted as required by Rule 62-701.803(1)(b), Florida Administrative Code. A description of facility operations (operations plan) was not submitted as required by Rule 62-701.803(1)(c), Florida Administrative Code. A boundary survey was not submitted as required by Rule 62-701.803(1)(d), Florida Administrative Code. Closure plans and cross section details of the final cover which meets the requirements of Rule 62-701.320(7)(f), Florida Administrative Code, were not submitted as required by Rule 62- 701.803(1)(f), Florida Administrative Code. The Department has received a copy of a letter from Southwest Florida Water Management District (District) to the applicant, dated May 23, 1995, which indicates that the District is concerned about the proximity of the C&D debris to on- site wetlands. The letter from District, dated March 13, 1990, provided an exemption from surface water permitting requirements based on the District's understanding that the proposed operation would not change surface water drainage patterns, stormwater runoff quantities or quality. However, site inspections by the Department and District staff have indicated that surface water drainage patterns have been changed by the operation at the site. Therefore, a copy of a permit for stormwater control issued by the Department or the District shall be required pursuant to Rule 62-701.803(4), Florida Administrative Code. Information indicating the availability of equipment for the temporary storage of unacceptable wastes at the site, and segregation methods were not submitted as required by Rule 62-701.803(5), Florida Administrative Code. Compaction procedures and equipment were not described as required by Rule 62- 701.803(6), Florida Administrative Code. A description of access control methods and devices was not submitted as required by Rule 62-701,803(7), Florida Administrative Code. A description of waste inspection procedures was not submitted as required by Rule 62-701.803(8), Florida Administrative Code. The facility's operating hours were not provided to ensure compliance with Rule 62- 701.803(9), Florida Administrative Code. The closure plan submitted as required by Rule 62-701.803(10), Florida Administrative Code, is insufficient. Pursuant to Rule 62-4.070(5), Florida Administrative Code, the Department shall take into consideration a permit applicant's violation of any Department rules at any installation when determining whether the applicant has provided reasonable assurances that Department standards will be met. Reasonable assurance that Department standards will be met has not been provided. Pursuant to Rule 62-701.803(10), Florida Administrative Code, final cover and vegetation shall be established on each disposal unit within 180 days of final receipt of wastes for that unit. Since waste has not been disposed at the site since approximately March, 1993, and the area has not been closed, the requirements of Rule 62- 701.803(10), Florida Administrative Code, has not been met. There is pond on the Petitioner's property which is located to the north of both the existing and proposed disposal areas. The pond is located within 200 feet of the proposed disposal area. The pond is contained completely within the boundaries of the disposal site and on at least one occasion has discharged to surface waters. However, there is no evidence to show that there was at least a 25 year/24 hour storm event on the occasion when the pond discharged to surface waters. Petitioner has failed to furnish the Department with the necessary information for the Department to determine if the pond discharges from the site to surface waters in a 25 year/24 hour storm event. Likewise, Petitioner has failed to provide the Department with either a copy of a storm water permit or documentation that a storm water permit was not necessary Wetlands are located along the southern boundary of Petitioner's property upon which the proposed construction and debris disposal facility will be located. These wetlands are located within 200 feet of the proposed disposal area. Petitioner has offered to reconfigure the disposal area to meet the 200 feet setback. However, Petitioner has not submitted a site plan to demonstrate the manner in which compliance with the 200 feet setback would be achieved. There is a potable water well located on Petitioner's property upon which the proposed facility is to be located which is located within 500 feet of the proposed disposal area. The permit application proposes a maximum elevation of 84 feet for the disposal area with a 3:1 slope for the entire disposal area. Petitioner has not furnished the Department with the existing elevations within the proposed disposal area. Without these elevations the Petitioner cannot show how he would comply with the proposed maximum elevation while maintaining the required 3:1 slope. Likewise, without these elevations, the Department would be unable to determine if Petitioner is complying with the proposed maximum elevation while maintaining the required 3:1 slope. Petitioner has not provided the Department with a geotechnical investigation so as to allow the Department to determine if the site's subsurface features would adequately support the proposed disposal area. The evidence in the record shows that Petitioner has not addressed all of the Department's concerns set out in Finding of Fact 4 (a) through (o). However, based on the testimony of Petitioner and Robert Butera, the Department's witness, it appears that the Department would consider the concerns set out in Finding of Fact 4 (b), (e), (f), (k), and (m) to have been adequately addressed by Petitioner. Petitioner has failed to provide the Department with reasonable assurance that the construction or operation of the facility would be in accord with applicable laws or rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order denying Petitioner's application for a permit for the construction and operation of a demolition and debris disposal facility. DONE and ENTERED this 19th day of January, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 19th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3760 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner and the Department in this case. Petitioner's Proposed Findings of Fact. Petitioner's proposed findings of fact are set out in three unnumbered paragraphs which shall be considered as proposed findings of fact 1 through 3. Proposed findings of fact 1-2 are not supported by evidence in the record. Adopted in substance as modified in Finding of Fact 14. Department's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 12 are adopted in substance as modified in Findings of Fact 1 through 15. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante, Esquire Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Frank Strout, Pro se 11163 Agnes Street, Southwest Arcadia, Florida 33821 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact At all times material hereto, Respondent has been licensed as a certified general contractor and certified mechanical contractor, having been issued licenses numbered CG-C011731 and CM-C011116. On or about February 16, 1983, building permit number 1-83-01-01119 was issued as a result of an application signed by Respondent, as qualifier, for interior work at a vacant retail store site in Aventura Mall. The building contractor shown on the permit application was R. M. Horton Construction Corporation. On or about April 1, 1983, Respondent applied for a second building permit at the same job site, which was issued as permit number 1-83-01- 02871. The owner of the business located at the job site in Aventura Mall for which Respondent pulled these permits is Don Kaufman. Mr. Kaufman is co-owner and President of Pants Plus, Inc., and was in the process of opening a new retail store at Aventura Mall to be known as "Don Richards." On February 17, 1983, Kaufman entered into a contract on behalf of Pants Plus, Inc., with Rowley-Dees Construction Company. This contract was in the amount of $92,490 and was for all construction necessary to complete the new store, "Don Richards." Mark Rowley was shown as construction manager on the contract, and Kaufman assumed that Rowley was properly licensed to do this work and would obtain all necessary permits. The permits obtained by Respondent, referenced above, were for this same job for which Kaufman originally contracted with Rowley-Dees Construction Company. After work was begun on Kaufman's job it was "red tagged" by the Dade County Building Inspection Department, and all work was delayed for approximately two weeks until Kaufman could execute a new contract with a properly licensed contractor. Kaufman executed a contract with Respondent on March 30, 1983, showing R. M. Horton Construction Corporation as the contractor, at which time Respondent pulled the second permit for this job on or about April 1 and work resumed. The contract executed by Respondent with Kaufman on March 30, 1983, stated as to contract sum: The Owner shall pay the Contractor in current funds for the performance of the Work, subject to additions and deductions by Change Order as provided in the Contract Documents the Contract Sum of Ninety-Two Thousand Four- Hundred Ninety ($92,490.00) Dollars: provided, however, Contractor acknowledges that the sum of $41,620.50 has already been paid Rowley-Dees Construction Co., Inc., in connection with Phase 1 and Phase 2 of Article 5 Progress Payments, and Contractor acknowledges that Contractor shall have no claim to said sum. The amount due Respondent for completing the job would therefore be $50,869.50. Respondent received payments from Kaufman on behalf of Pants Plus, Inc., on April 21 and May 3, 1983, under this contract in the total amount of $40,000, leaving an unpaid balance of $10,869.50. Respondent has received no further payments under this contract. The store, "Don Richards," opened on May 1, 1983, but Kaufman testified that Respondent had not completed various construction items which he referred to as "minimal" incompletion of less than the ten percent of the job. Specifically, Kaufman testified that various cabinets, including a large jewelry display cabinet, lighting, carpeting and the water sprinkler system were all left incomplete by Respondent. In addition a four liens were filed by subcontractors in connection with the work they performed at "Don Richards." These liens were in the total amount of $19, 986.18. Respondent contends that he had to provide many items that Kaufman, as owner, should have provided under the contract and that these "extras" increased his costs, but that the job was substantially complete when he left it. He testified that he was willing to forego the amount due him under the contract and to absorb the costs resulting from the "extras" in return for Kaufman satisfying the liens. However, there is no evidence that Respondent discussed this arrangement with Kaufman or that Kaufman agreed to it. Respondent did not offer any competent substantial evidence to corroborate his testimony about the "extras" or his contention that he was forced to absorb costs on the job which Kaufman should have paid. On March 30, 1983, Kaufman and the officers of Rowley-Dees Construction Company executed a Guarantee and Indemnification Agreement which states, in pertinent part: Rowley-Dees, Construction, Co., Inc., Thomas G. Rowley and David Dees, jointly and severally agree that the written acknowledge of Pants Plus, Inc. that R.M. Horton Construction Corporation has failed or refused to perform any of the terms and conditions required to be performed by it in accordance with the attached Exhibit "A" shall bind each of them and; furthermore, Rowley-Dees Construction Co., Inc., Thomas G. Rowley and David Dees jointly and severally agree that any extension of time granted by Pants Plus, Inc. to R. M. Horton Construction Corporation in connection with R. M. Horton Construction Corporation's obligations required to be performed . . . shall in no manner whatsoever release Rowley-Dees Construction Co., Inc., Thomas G. Rowley and David Dees from any liability hereunder. Rowley-Dees Construction Co., Inc., Thomas G. Rowley and David Dees, jointly and severally agree that upon demand of Pants Plus, Inc., each of them, jointly and severally promise to pay any amount due and owing to Pants Plus, Inc. without any action or proceeding being taken by Pants Plus, Inc. against R. M. Horton Construction Corporation. Kaufman never filed a written notice of Respondent's failure to complete the terms of his contract, nor did Kaufman ever file a demand for payment against Rowley-Dees Construction Company, Thomas G. Rowley or David Dees in connection with the liens filed by the subcontractors. Respondent's contract with Kaufman required the job to be "substantially complete" by April 20, 1983, which was the original opening day of Aventura Mall. However the Mall did not open until May 1 and no stores could open before that date. "Don Richards" opened on May 1 which was the first day it could have opened. Posthearing proposed findings of fact submitted pursuant to Section 120.57(1)(b)4, F.S., have been considered. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered suspending Respondent's certified general contractor's license number CG-C011731 for a period of sixty (60) days. DONE AND ENTERED this 6th day of June 1985 at Tallahassee, Florida. DONALD D CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June 1985. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Richard M. Horton 11455 Southwest 104th Court Miami, Florida 33176 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue is whether Respondents should have an administrative penalty assessed, take corrective action on their property to remove fill, and pay investigative expenses for the reasons stated in the Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice) issued by the Department of Environmental Protection (Department) on July 5, 2017.
Findings Of Fact Respondents’ residence is located at 3100 Victoria Drive, St. Augustine. The property, purchased in 2009, faces Victoria Drive to the west. The high point of the lot is where it abuts the street. It then slopes downward to a small creek which lies at the rear of the parcel. The largest elevation drop is at the front of the property. The Department has the authority to institute a civil or administrative action to abate conditions that may create harm to the environment. In this case, it filed a Notice directed against Respondents for allegedly placing fill on 0.11 acres of jurisdictional wetlands (around 5,000 square feet) located on their property. Mr. Ravan admits that he placed fill on his property without a permit, but he disputes the Department’s assertion that the filled area covers 0.11 acres of wetlands. Wetlands are areas that are inundated and saturated with water for a long enough period of time to support vegetation that can adapt to that environment. Fla. Admin. Code R. 62- 340.200(1). If the landward extent of a wetland cannot be determined by direct application of the rule definition, i.e., without significant on-site work, field verification using the wetland delineation methodology in Florida Administrative Code Rule 62-340.300 is required. Field verification involves a visual inspection of the site to evaluate vegetation, soil conditions, and other hydrologic indicators on the property. If two of these characteristics are found, the Department identifies the area as a wetland. In this case, field verification was necessary. In 2016, Mr. Ravan was involved in a dispute with a neighbor whose dog was repeatedly “messing” in his backyard. After words were spoken by the two, Mr. Ravan believes the neighbor informed the County that Mr. Ravan was placing fill in his back yard. This assumption probably is true, as emails from the County to the Department state that the case arose a few days later as a result of a “citizen complaint.” Pet’r Ex. 18. After receiving the citizen complaint, a County employee visited Respondents’ property. The employee informed Mr. Ravan that fill material (dirt) had been placed on jurisdictional wetlands without a permit. A few days later, the County reported the alleged violation to the Department. In response to the County’s referral, in September 2016, Ms. Sellers, a Department Environmental Specialist III, inspected the property with a County representative. In preparation for her visit, she reviewed aerials of the property to determine the elevation of the area, reviewed soil mapping layers, and drove around the site to verify the drainage patterns on the property and whether it had any connections to a water body. During her inspection, Ms. Sellers performed “a good analysis of the property” and took photographs of the filled area. The results of her inspection are found in a Chapter 62- 340 Data Form accepted in evidence as Exhibit 17. It supports a finding that the filled area consists of wetlands and covers around 0.11 acres. Respondents submitted no contrary evidence. After her inspection, Ms. Sellers informed Mr. Ravan that he must remove the fill. The Notice was issued on July 5, 2017. On a follow-up visit a year after her initial inspection, Ms. Sellers observed that some of the fill piles had been removed, the remaining fill had been spread throughout the area, and some of the vegetation observed in September 2016 was now covered. In a visit a few weeks before the final hearing in April 2018, Ms. Sellers observed that some fill still remained. To comply with the law, Mr. Ravan must remove the fill, obtain a permit, or enter into a consent order. If a permit is obtained, besides the cost of the permit ($420.00), Mr. Ravan would have to offset the environmental impacts by purchasing a mitigation bank credit, an expensive undertaking. If the fill is removed, it must be extracted with a small device, such as a wheelbarrow or other small piece of equipment, as a vehicle cannot be driven into the backyard. This will be a tedious and time-consuming process. The Department’s preferred option is to remove the fill. Because of the slope of the lot, mainly at the front of the parcel, Mr. Ravan has experienced drainage problems since he purchased the home in 2009. The drainage problem is caused by a County-owned culvert that runs along Victoria Drive, stops at the corner of his lot, and then dumps the runoff into his yard. Despite Mr. Ravan’s repeated efforts to obtain relief, the County has refused to correct the problem. During heavy rain events, the blocked culvert overflows into his yard and runs down the side of his property to the rear of the lot. Photographs support Mr. Ravan’s claim that the drainage problem has caused severe erosion on his property. Mr. Ravan testified that some of the fill was in place when he purchased the property from the prior owner in 2009. Because of its age, he contends the fill should be “grandfathered.” However, Ms. Sellers established that “historic fill” must be at least 20 years old in order to be immune from enforcement action. In this case, there is no proof that the fill qualifies for this exception. Mr. Ravan has cooperated fully with the Department throughout this proceeding. The evidence shows that Mr. Ravan acted in good faith and is only attempting to prevent runoff from the culvert, which has resulted in deep channels in the side and rear of his yard and washed away much of the top soil. There is no evidence regarding the derivation of the Department’s “investigative expenses” of at least $500.00. At hearing, Ms. Sellers summarized the proposed corrective action. This is a reasonable corrective action.1/ Mr. Ravan disputes her assertion that in some areas of the backyard, up to two feet of fill must be removed. He contends that if two feet of soil is removed, the water table would be reached. However, this issue must be resolved during the corrective action process.
The Issue The issue in the case is whether the Petitioner's request for payment from the Construction Industries Recovery Fund meets the requirements of law and should be approved.
Findings Of Fact On or about March 20, 1995, Petitioner entered into a contract with Kenneth Boaz (Boaz) doing business as Revival Remodelers. Boaz was licensed as a Certified Residential Contractor, Florida license number CR C035360. The contract was for the remodeling of Petitioner's home. The work appears to have been either uncompleted by Boaz or not completed in accordance with Petitioner's desires. The total amount of the contract, including change orders, was for $53,370.00. Petitioner paid $41,755.00 to Boaz, leaving an unpaid amount of $11,615.00. Petitioner sued Boaz (County Court, Pinellas County, Florida, Civil Division, Case Nos. 96-4335-CO and 96-4343-CO) and received a Final Judgment dated August 26, 1996, against Boaz in the amount of $5,796.00. Petitioner appears to have initiated an attempt to collect the judgment. By transmittal letter dated December 1, 1997, Petitioner received a check from an attorney in the amount of $1,501.77. The letter indicates that the forwarded amount was based on payment by Boaz of $1,877.21 minus a 20 percent commission of $375.44. The letter also indicates a "current balance of account" as $6,126.20. Boaz appealed the County Court decision to the Circuit Court (Sixth Circuit, Appeal No. 96-7707-CI-88B). By Order dated June 29, 1998, the Circuit Court affirmed the determination of liability, but vacated the amount of damages and remanded the case to the trial court for a new trial to determine damages. On remand, the County Court entered another Final Judgment awarding damages, dated October 28, 1998, and the case was again appealed to the Circuit Court (Sixth Circuit, Appeal No. 98-8369-CI-88A). By Order dated June 29, 2000, the Circuit Court again vacated the amount of damages and remanded the case to the trial court for a new trial to determine damages in accordance with directions provided in the Order. At some point during the litigation, Boaz filed for bankruptcy. The United States Bankruptcy Court for the Middle District of Florida, Tampa Division, in Case No. 01-20049-8B7, lifted the automatic bankruptcy stay applicable to Boaz, and by Stipulation for Entry of Final Judgment Liquidating Claims of Plaintiffs executed in April 2003, Petitioner and Boaz reached an agreement that Petitioner's claim was in the amount of $15,000. By Order Determining Claim of the Plaintiffs dated April 25, 2003, the County Court accepted the stipulated amount of $15,000 Petitioner filed a claim form seeking reimbursement from the Construction Industry Recovery Fund. The claim form has a signature purporting to be that of Petitioner. The form contains a receipt date of February 17, 1998. By Order dated August 15, 2003, Petitioner's claim was denied by the Construction Industry Recovery Fund Committee and the Construction Industry Licensing Board on the grounds that Petitioner had failed to present a Final Judgment as to the damages and that Petitioner failed to state a claim eligible for compensation from the fund.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying the claim for reimbursement filed by Petitioner. DONE AND ENTERED this 18th day of November, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2004. COPIES FURNISHED: Adrienne C. Rodgers, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Karen W. Scragg 9085 Leisure Lane, North Largo, Florida 33773-4707 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File following the Notice of Voluntary Dismissal filed by the Petitioner. A copy of the Order is attached as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(c) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA10-GM-056 CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below in the manner described, on this 23-4 day of March, 2010. U.S. Mail: The Honorable D.R. Alexander Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Melvin Wolfe, Esq. Town of Medley 7777 N.W. 72nd Avenue Medley, Florida 33166 Jeffrey S. Bass, Esq. Shubin & Bass, P.A. 46 S.W. First Street, 3rd Floor Miami, Florida 33131 Hand Delivery: Richard Shine, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399 Paula Ford Agency Clerk Douglas M. Halsey, Esq. White & Case, LLP Wachovia Financial Center 200 South Biscayne Boulevard, Suite 4900 Miami, Florida 33131 Barbara J. Riesberg, Esq. 1000 Brickell Avenue, Suite 200 Miami, Florida 33131
