The Issue The issue in this case is whether Petitioners sold nursery plant materials to Respondent U.S. Lawns of Orlando, Inc. for which the latter did not pay.
Findings Of Fact On May 24, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 460 Juniper plants, for $731.40 including tax. The plants were picked up by U.S. Lawns employee Mark Rosetta. U.S. Lawns of Orlando, Inc. does not dispute the validity of the claim arising out of the May 24 sale. However, U.S. Lawns has never paid for these plant materials. On June 6, 1990, Jon's Nursery, Inc. sold U.S. Lawns of Orlando, Inc. 40 Juniper plants and 50 grass plants for $166.95 including tax. These plants were picked up by Jeffrey Miller, who was an employee of U.S. Lawns. U.S. Lawns disputes the validity of the June 6 sale. However, the owner of U.S. Lawns, Glen Jaffee, never responded to numerous telephone calls from Pen Smith of Jon's Nursery, Inc. concerning the unpaid invoices. Nor did anyone respond to a certified demand letter that Mr. Smith mailed to U.S. Lawns on August 29, 1990, or the numerous monthly statements reflecting the unpaid balances. An officer and employee of U.S. Lawns of Orlando, Inc., Pat Oyler, had ordered the plant materials by telephone from Jon's Nursery, Inc. Mr. Oyler had previously ordered plant materials on behalf of U.S. Lawns from Jon's Nursery, which had always been paid. On two occasions subsequent to the sales in question, Mr. Oyler ordered plant materials from Jon's Nursery, Inc. on behalf of U.S. Lawns, but paid for them with his personal check, and Mr. Smith told him that he would need, in such cases, to order the plants in his name. On May 31, 1990, Concepts in Greenery, Inc. sold U.S. Lawns ten 15-gallon crepe myrtles for $318 including tax. These items were picked up by Jeffrey Miller driving a U.S. Lawns truck. These plant materials had been ordered by Mr. Oyler of U.S. Lawns. Concepts in Greenery, Inc. had also previously done business with U.S. Lawns and been paid. In a sale which had taken place on March 25, 1990, Mr Oyler had ordered about $400 worth of plant materials on behalf of U.S. Lawns. Additionally, in its application for credit with Concepts in Greenery, Inc. dated April 11, 1988, Mr. Jaffee, as president of U.S. Lawns of Orlando, Inc., had certified that Mr. Oyler was vice president of U.S. Lawns of Orlando, Inc. Repeated telephone calls and monthly statements from Concepts in Greenery, Inc. to U.S. Lawns of Orlando, Inc., as well as a certified letter dated September 19, 1990, to Mr. Jaffee, were unsuccessful in obtaining any response whatsoever from the latter company. Spring Hill Nursery, Inc. made several sales of a variety of plant materials to U S. Lawns of Orlando, Inc. Including tax, these sales were as follows: March 13, 1990, for $131.18; March 26, 1990, for $544.05; April 5, 1990, for $12.24; April 6, 1990, for $90.10; April 17, 1990, for $593.60; April 18, 1990, for $55.65; and April 27, 1990, for $92.75. An eighth invoice dated June 4, 1990, for $581.15 has been excluded because it bears the names of Oyler Construction Company, Inc., Bentley Green, and Pat Oyler as the persons invoiced and nowhere mentions U.S. Lawns. The total of the seven sales to U.S. Lawns is $1519.57. Spring Hill Nursery, Inc. repeatedly tried to contact Mr. Jaffee and U.S. Lawns, including by letter dated August 27, 1990, but never received any response to its demand for payment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring U.S. Lawns of Orlando, Inc. to pay the above-indicated sums to the respective parties. DONE AND ENTERED this 9th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 9th day of April, 1991. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel Department of Agriculture 515 Mayo Building Tallahassee, FL 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Pen Smith, Sales Manager Jon's Nursery, Inc. 24546 Nursery Way Eustis, FL 32726 Charles Brown, Nursery Manager Concepts in Greenery, Inc. 16366 Old Cheney Highway Orlando, FL 32833 David Rubright, President Spring Hill Nursery, Inc. 1921 Hill Drive Apopka, FL 32703 Glen Jaffee 612 Bryn Mawr Orlando, FL 32804 Bankers Insurance Company 10051 5th Street North St. Petersburg, FL 33702
Findings Of Fact In June 1987, petitioner, Karl T. Christiansen, was an examinee on Sections 3, 4 and 5 of the Uniform National Examination for landscape architects. He had previously passed Sections 1 and 2 in the June, 1986 examination. The test is administered by the Office of Examination Services of the Department of Professional Regulation, and licensure is granted by respondent, Board of Landscape Architects. The examination in question is a uniform multi-state examination adopted for use in Florida. The questions are prepared by the Council of Landscape Architectural Registration Boards. The same organization also prepares a comprehensive Evaluation Guide for use by graders in scoring the test. All Florida graders must be professional landscape architects with at least five years' experience. In addition, they are given training by the Office of Examination Services before grading the examination. After the examination was completed by the candidates, all examinations, including that of Christiansen, were blind-graded by the graders using the Evaluation Guide as a tool. By notice dated October 23, 1987, petitioner was advised by the Office of Examination Services that he had received the following scores on Sections 3, 4 and 5 of the examination: Design Application 84.4 PASS Design Implementation 70.8 FAIL Florida Section 76.2 PASS On December 14, 1987, petitioner was given an opportunity to meet with Board representatives in Tallahassee and present objections concerning his score on Section 4 of the examination. Because of Christiansen's concerns, the Board regraded his examination a second time and raised his overall score from 70.8 to 72.4. This was still short of the 74.5 needed for passing. After being given the results of the second grading, petitioner requested a formal hearing. At hearing petitioner lodged objections to scores received on twenty- one questions in Subparts A, B and C of Section 4 of the examination. These objections are contained in joint composite exhibit 1 received in evidence. It was Christiansen's position that the graders had used subjective standards in evaluating his solutions, and that they had failed to take a sufficient amount of time to evaluate his answers. In addition, Christiansen contended that the examiners had failed to note a number of correct answers for which he was not given credit. Other than his own testimony, petitioner did not present any other evidence to support his contentions. Indeed, his own witness, a Fort Lauderdale landscape architect with thirty years experience, concluded that the Board was correct in failing Christiansen and that Christiansen had not demonstrated adequate competence on the examination to justify a passing grade. In support of its position, respondent presented an expert, Michael Oliver, a longtime registered landscape architect with three years experience in grading this type of examination. In preparation for the hearing, Oliver reviewed the examination, instruction booklet and grader's Evaluation Guide. He then regraded petitioner's examination and assigned it a score of 73.4, which was a failing grade. In doing so, Oliver assigned higher scores than did the previous two graders to certain questions but lower scores to others, for an overall average of 73.4. Through a detailed analysis, Oliver pointed out the infirmities in each of Christiansen's objections and why an overall failing grade was appropriate. It was demonstrated by a preponderance of evidence that, where petitioner had not received the desired grade, he had misinterpreted the instructions, prepared unsafe designs, failed to satisfy all criteria, or gave incorrect answers. Therefore, petitioner's grade should not be changed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Board denying petitioner's request to receive a passing grade on section 4 of the June, 1987 landscape architecture examination. DONE AND ORDERED this 23rd day of May, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 23rd day of May, 1988.
Findings Of Fact Petitioner saw an ad in a Tampa newspaper for waitresses at Festhaus and assumed that to be at Busch Gardens. Respondent placed no advertisements for waitresses in a Tampa paper. There is another Festhaus operated in Tampa. On October 11, 1982, Petitioner, a 45-year-old female, filled out an application for employment at Busch Gardens, Tampa. She applied for a job as waitress at Festhaus as a permanent employee. Respondent employs no waitresses at Festhaus because that restaurant operates cafeteria style. On or about November 8, 1982, Petitioner sent a card to Busch Gardens employment office changing her application to say she was open for any position at Busch Gardens. She was then placed in a category that would be considered for a position in the food service department. Around December 1, 1982, Petitioner went to Busch Gardens employment office to inquire why she had not been employed. At this visit she talked to Frank Lopez, Employment Manager at Busch Gardens who invited Petitioner into his office when told she wanted to speak to him. In response to his inquiry Petitioner told Lopez she had applied for a permanent position. Lopez told Petitioner they had no permanent positions open at the time and inquired what she meant by asking for an open position. She responded that she was interested in any job available and asked in what type positions Respondent used employees. The list he recited to her included merchandising and Petitioner told him she would be interested in merchandising. When told by Lopez that they would be hiring soon for seasonal employees for eight to ten days, Petitioner responded that she was not interested in part-time employment, only full-time employment. Petitioner returned to Busch Gardens on January 31, 1983, at which time she spoke to Julie Waugh, personnel representative at Busch Gardens. At this time Respondent was interviewing for winter seasonal employment. Petitioner told Waugh she was available for full-time work and could work Saturdays but preferred not to work on Sundays but could if necessary. When told the job was seasonal, Petitioner stated she did not want seasonal work unless she could be guaranteed work at the end of the season. During the period October, 1982, and January, 1984, 15 permanent employees were hired by Respondent. In calendar years 1982 and 1983 Respondent employed 72 permanent positions, of which 20 were over 40 years old. During the period between October 11, 1982, and January, 1983, Respondent hired only two permanent employees at Busch Gardens, one a promotion manager and the other a fiberglass technician. Petitioner was not qualified for either of these positions. The vast majority of employees hired by Respondent are hired during the Christmas, Easter, and summer seasons. Since schools are out during these periods, most of the employees are students whose school schedules mesh with the availability of jobs with Respondent. No evidence of specific discrimination practices by Respondent was shown. A large majority of Respondent's employees are seasonal and these seasonal employees are predominantly of student age. However, Respondent has recruited at a meeting of the Retired Teachers Association and the American Association of Retired People.
The Issue The issues are whether the Department of Transportation may declare Petitioner non-responsible and ineligible to bid on Department contracts based upon Petitioner's alleged unsatisfactory performance and default on Department contract number E-5G08; and if so, for what period of time should Petitioner be declared non-responsible.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner is a Florida corporation whose principal business is road and bridge maintenance. Petitioner also does some landscape installation work. Petitioner's president is Charles Welch. Petitioner has received between ten and 20 contracts from the Department since 1993. However, the contract at issue in this proceeding is the first landscape installation project that Petitioner has done for the Department. The Department is the state agency responsible for maintaining and regulating the use of the right-of-way along the state highway system. That responsibility includes overseeing the installation and maintenance of landscaping within the right-of-way. Department Contract No. E-5G08 In November 2001, the Department awarded Petitioner a contract to install landscaping around six interchanges in the central Florida area. The interchanges were identified and prioritized in the bid specifications as follows: (1) I-95/US 192 interchange; (2) I-4/Lake Mary Boulevard interchange; (3) SR 25/SR 200 interchange; (4) SR 482/SR 435 interchange; (5) I-95/SR 518 interchange; and (6) US 441/SR 46 interchange. The SR 482/SR 435 interchange was subsequently deleted from the project, and the I-4/Lake Mary Boulevard interchange was subsequently prioritized ahead of the I-95/US 192 interchange. The Department's contract identification number for the project was E-5G08. The contract required Petitioner to prepare and mulch 66,667 square yards of beds for the landscaping and then to install a total of 63,667 plumbago shrubs and 927 sabal palm trees. The plumbagos were required to be ten to 18 inches in height, and the palm trees were required to be nine to 20 feet in height. Petitioner did not challenge the specifications for the project. Petitioner bid $745,160.90 for the contract, and the Department accepted the bid at that amount. Petitioner's bid amount was calculated by multiplying a unit price for each plant type by the number of plants required under the contract, plus a unit price for the mulching/bed preparation multiplied by the total number of square yards in the beds. No separate amount was bid by Petitioner for "maintenance," and the bid form did not include a separate line for that item. The contract generally described the work to be performed by Petitioner as "furnish[ing] and install[ing] palms, plants and associated landscape materials at various locations." A similar description of the project was provided on the first page of the bid specification package. The contract and the bid specification package incorporated by reference the 2000 edition of the Department's Standard Specifications for Road and Bridge Construction (Standard Specifications). Mr. Welch was generally familiar with the Standard Specifications as a result of the prior contract work that he and Petitioner had done for the Department. He understood that the Standard Specifications were part of each Department construction and maintenance contract. Section 580-10 of the Standard Specifications, entitled "Contractor's Responsibility for Condition of the Plantings," requires the contractor to: [e]nsure that the plants are kept watered, that the staking and guying is adjusted as necessary, that all planting areas and beds are kept free of weeds and undesirable plant growth and that the plants are maintained so that they are healthy, vigorous, and undamaged at the time of acceptance. Section 580-11 of the Standard Specifications, entitled "Plant Establishment Period and Contractor's Warranty," requires the contractor to: [a]ssume responsibility for the proper maintenance, survival and condition of all landscape items for a period of one year after the final acceptance of all work under the Contract in accordance with [Section] 5-11. [The contractor shall also] [p]rovide a Warranty/Maintenance Bond to the Department in the amount of the total sums bid for all landscape items as evidence of warranty during this plant establishment period. The costs of the bond will not be paid separately, but will be included in the costs of other bid items. * * * [The contractor shall] [t]ake responsibility to apply water as necessary during this period and include the cost in the various landscape items. No separate measurement of payment will be made for water during the plant establishment period. Pursuant to Sections 5-10 and 5-11 of the Standard Specifications, "acceptance" of a project does not occur until the Department determines that the contractor has satisfactorily completed all work on the project and informs the contractor in writing that the project is accepted. Sections 5-10.2 and 5-10.3 of the Standard Specifications allow for acceptance of portions of the project, called "partial acceptance." Those provisions do not, however, require the Department to accept projects on a piecemeal basis. At the pre-construction conference held on November 19, 2001, Mr. Welch asked, "if a single location [would] be accepted as it is completed." The Department's project manager, Stephen Bass, replied that he would "check to see if this is possible," and he told Mr. Welch that "[i]n the meantime, as you complete a site, advise me in writing and I will respond " Based upon the subsequent correspondence between the parties, it can be inferred that the Department decided against accepting the project on a site-by-site basis. No partial or final acceptance was ever given for the project or any of the individual sites. The first page of the specification package provided that the contract period was "270 days for installation," and "365 addtl [sic] days after acceptance for establishment." The 365-day, post-acceptance establishment period referred to in the specification package is the same as the one- year period referred to in Section 580-11 of the Standard Specifications. Petitioner's obligations during the establishment period were specifically discussed at the pre-construction conference. At that time, Mr. Bass made it clear to Mr. Welch that the contract included the one-year establishment period, in addition to the 270-day installation period. The installation period began on December 3, 2001, and ended on September 8, 2002. The latter date takes into account the ten "[bad] weather days" added to the installation period under the terms of the contract. Mr. Welch understood the project to be an installation-only contract. That understanding was based upon the reference to a 270-day installation period in the specifications, and the fact that the bid form did not have a separate line-item for maintenance. Mr. Welch did not read the specifications word-for- word prior to bidding on the project, nor did he take into account Section 580-11 of the Standard Specifications or the language on the first page of the specification package which clearly referenced the 365-day, post-acceptance establishment period. Mr. Welch did not understand the contract to require Petitioner to weed or otherwise maintain the beds after the plants were installed. He understood the contract to only require Petitioner to install the plants and then water them through the end of the 270-day installation period. In reaching this conclusion, Mr. Welch did not take into account Section 580-10 of the Standard Specifications, which clearly requires pre-acceptance weeding and which makes the contractor the absolute insurer of the plants until acceptance by the Department. The Department did not in any way contribute to Mr. Welch's misunderstanding of the scope of the contract. The contract documents were clear and unambiguous on the issue and the Department made it clear from the outset that the contract included a one-year establishment period. Petitioner's Performance Under the Contract Petitioner performed its work under the contract in a series of steps. Petitioner first sprayed the areas at each site where the landscaping would be installed with a herbacide to kill any existing vegetation. Two herbacide treatments were done at each site. Petitioner then "mulched" the planting areas at each site by mowing the dead vegetation and marked the locations at each site where the palm trees were to be installed. Petitioner then planted the palm trees at each site. Next, Petitioner installed "weed fabric" at the I-4/Lake Mary Boulevard interchange (hereafter "the Lake Mary site"). The weed fabric has two purposes: it blocks the light that reaches the ground thereby reducing or eliminating weeds, and it also helps prevent erosion. After installing the weed fabric, Petitioner began planting the plumbago shrubs at the Lake Mary site. To do so, Petitioner cut and folded back the weed fabric where each plumbago was to be located and then dug the hole within which the plant was placed. After the plant was placed in the hole, the weed fabric was then re-folded around the base of the plant. After the plumbagos were planted, Petitioner completed its work at the Lake Mary site by spreading pine straw mulch in the landscaped beds. The contract required a four-inch layer of mulch. After completing its work at the Lake Mary site, Petitioner moved to another site and installed the weed fabric, planted the plumbagos, and spread the pine straw mulch at that site. Petitioner continued working on a site-by-site basis in this manner until all of the sites had been completed. In June 2002, the Department expressed concern to Petitioner that it had fallen behind its installation schedule. In response, Petitioner put more people on the job and was able to get back on schedule. Petitioner completed the installation of the plants within the 270 days allotted for installation. Petitioner periodically watered each of the sites as the plants were being installed. Petitioner had two water trucks that it used for watering. The truck used at the Lake Mary site sprayed a stream of water out of a hose at a relatively high flow rate. Because large portions of the landscaped beds at the Lake Mary site were on steep slopes around the interchange, the stream of water from the water truck caused some of the pine straw to wash down the slope. Heavy rains also caused the pine straw to wash down the slope and, in some areas, to wash away completely. As a result, some of the landscaped areas were not covered with the four inches of mulch required by the specifications. Mr. Welch acknowledged the loss of mulch in some areas, and he attributed it to the weed fabric being too "slick" to hold the mulch. Nevertheless, because Mr. Welch considered the replacement of the mulch to be maintenance, which he did not consider to be part of the contract, Petitioner never replaced the pine straw. Petitioner did not consider using a "drip line" or other watering system which would have applied the water at ground level or at a lower rate of flow than the stream of water being sprayed from the water truck. Such an alternative system may have minimized the amount of mulch that washed down the slope from watering, but it may not have affected the mulch that washed away due to heavy rains. Such a system may have also gotten more water to the plants' roots. Despite the watering done by Petitioner, plumbagos and palm trees died at the Lake Mary site, as well as at the other sites. Mr. Welch acknowledged the "loss" of a number of trees and plants, although he testified that fewer plants had died than he had projected at the outset of the project. The precise number of trees and plants which died before Petitioner was declared in default on the contract and told to stop work on the project is not clearly reflected in the record. The loss of the plumbagos at the Lake Mary site may be partially attributable to the weed fabric selected by Petitioner not being permeable enough to allow the water to reach the plant roots, but Petitioner's failure to utilize an alternative watering system to compensate for the "problems" it encountered with the weed fabric also contributed to the loss of the plumbagos. On August 12, 2002, the Department and Petitioner "agreed that substantial completion has been achieved" on each of the sites. That means that all or substantially all of the plants had been installed by that date; it does not mean that the Department had accepted the work, either partially or conditionally. By letter dated August 13, 2002, the Department informed Petitioner that maintenance of the completed sites was necessary. Specifically, the letter informed Petitioner that there were dead palm trees and plumbagos at all of the sites which needed to be replaced, that the pine straw mulch needed to be replaced at most of the sites, and that weeding needed to be done. Petitioner did not perform the weeding or other maintenance directed by the Department. Indeed, the only work that Petitioner did on the project after August 13, 2002, was on August 20, 2002, when it watered two of the sites. By letter dated August 15, 2002, Petitioner responded to the Department's direction that maintenance be commenced at the completed sites. In that letter, Petitioner characterized the maintenance as "extra work" and requested additional compensation for the maintenance work. The Department denied Petitioner's request for additional compensation by letter dated August 15, 2002. That letter informed Petitioner that "a Deficiency Letter would be forthcoming if weed removal operation does not begin immediately." Petitioner did not respond to the letter. By letter dated August 21, 2002, the Department issued a "performance deficiency" based upon Petitioner's failure to maintain the planted areas as required by the contract and as directed by the Department in the letters dated August 13 and 15, 2002. Petitioner did not contest the deficiency within the ten-day period prescribed by the letter. By letter dated August 22, 2002, the Department requested that Petitioner submit the Warranty/Maintenance Bond required by the contract since "substantial completion has been achieved on the . . . project." The letter further advised Petitioner that the one-year establishment period would not commence until the bond was received by the Department. Petitioner did not respond to the letter. By letter dated August 27, 2002, the Department provided Petitioner with a "punch list" of items that required correction before the project could be accepted. The list included the replacement of dead palm trees and dead or under- sized plumbago shrubs at all of the sites; missing pine straw mulch at all of the sites; weeding and general clean-up of all of the sites; and submittal of the Warranty/Maintenance Bond. At the time of the Department's August 27, 2002, letter, 12 days still remained in the installation period. Petitioner did not respond to the letter and it made no effort to complete the punch list items identified by the Department. The Department never accepted the work performed by Petitioner under the contract because of the deficiencies identified above. As a result, the 365-day post-acceptance establishment period never commenced. Petitioner never provided the Department the Warranty/Maintenance Bond required by Section 580-11 of the Standard Specifications, which was incorporated by reference into the contract. The Lake Mary site is highly visible because the adjacent roads are very heavily traveled. The Department received complaints regarding the appearance of the Lake Mary site. The complaints came from Seminole County officials and members of the public. Alternative Weed Fabric Proposed by Petitioner The specifications package for the contract provided general requirements for the weed fabric to be used on the project. It did not, however, specify a specific brand of fabric which must be used. The specifications package provided that "[t]he fabric shall conform to the physical requirements on Roadway and Traffic Design Standards, Index No. 199 according to its application." Index No. 199 refers to the weed fabric as an "erosion mat," and requires it to have an ultra violet (UV) rating of 2,000 hours. Index No. 199 does not prescribe criteria for water permeability for the weed fabric. Petitioner provided the information in the specifications package relating to the weed fabric to its material supplier, who then provided Petitioner a fabric that met the specifications. The Department was not involved in those discussions. As required by the specifications package, Petitioner provided the Department a copy of the product data sheet for the selected fabric so that the Department could confirm that the fabric met the requirements of Index No. 199. The weed fabric which Petitioner selected was called "gold line." It had a UV rating of 2,500 hours, which met the requirements of Index No. 199. It had a water permeability rating of 15 gallons per minute per square foot (gal/min/SF). After encountering the problems described above at the Lake Mary site, Petitioner began looking for an alternative weed fabric which would be more permeable to water. The alternative fabric identified by Petitioner was "Style 125EX" from Linq Industrial Fabrics, Inc. The water permeability rating for that fabric was 150 gal/min/SF, but its UV rating was only 500 hours. Mr. Welch provided the data sheet for the Style 125EX fabric to Mr. Bass and requested that Petitioner be allowed to substitute that fabric for the fabric that it had used at the Lake Mary site. The Style 125EX fabric would have been used on the remaining sites, because the Lake Mary site had been completed with the original weed fabric by that time. That request was denied by the Department because the UV rating for the Style 125EX fabric did not meet the requirements of Index No. 199. The lower UV rating meant that the fabric would not hold up as long and, therefore, could create maintenance problems in the future. After the request to substitute the Style 125EX fabric was denied, Petitioner did not attempt to locate an alternative material which met the UV rating specified in Index No. 199, but was more permeable to water than the gold line fabric. Petitioner's Default and Unsatisfactory Performance Rating Section 8-9.1 of the contract provides that: The following acts or omissions constitute acts of default and . . . the Department will give notice, in writing, to the Contractor and his surety for any delay, neglect or default, if the Contractor: * * * performs the work unsuitably, or neglects or refuses to remove materials or to perform anew such work that the Engineer rejects as unacceptable and unsuitable; discontinues prosecution of the work, or fails to resume discontinued work within a reasonable time after the Engineer notifies the Contractor to do so; * * * (j) for any other cause whatsoever, fails to carry on the work in an acceptable manner, . . . . For a notice based upon reasons stated in subparagraphs (a) through (h) and (j): if the Contractor, within a period of ten calendar days after receiving the notice described above, fails to correct the conditions of which complaint is made, the Department will . . . have full power and authority, without violating the Contract, to take the prosecution of the work out of the hands of the Contractor and to declare the contractor in default. On September 16, 2002, the Department notified Petitioner that it intended to "default" Petitioner under the contract based upon its failure to maintain the planted areas, its failure to replace the dead plumbagos and palms, and its failure to provide the required Maintenance/Warranty Bond. As required by the contract, the letter gave Petitioner 10 days to cure the deficiencies in its performance. Petitioner did not respond to the Department's default letter, nor did it take any action to cure the deficiencies identified by the Department. As a result, on September 30, 2002, the Department formally declared Petitioner in default on the contract and directed Petitioner not to perform any additional work on the project. By letter dated October 22, 2002, the Department advised Petitioner of its "preliminary" field performance rating for the contract. Petitioner received a raw score of 53 (out of 90), which is a scaled score of 59. That is an unsatisfactory rating. Petitioner did not contest its rating within the time allowed by the Department's October 22, 2002, letter. As a result, the preliminary rating became final. Petitioner was not scored in the area of "maintenance of traffic operations." The Department had not received any complaints from the public on that issue, which is the primary consideration upon which that score is based. Had Petitioner received a "satisfactory" grade in that category, Petitioner's total score would have been 60. If Petitioner received a higher grade in that category, its total score could have been as high as 63. In either event, those scores still result in an unsatisfactory rating. By letter dated February 12, 2003, the Department advised Petitioner that it intended to declare Petitioner non-responsible for a period of two years based upon its default and unsatisfactory performance on Department contract number E-5G08. Petitioner timely requested a formal hearing, and this proceeding followed. The Department stipulated at the hearing that its decision to declare Petitioner non-responsible was not based on Petitioner's numerical performance rating (whether it is 59, 60, or 63), but rather on the actual unsatisfactory performance that is described above. Subsequent Department Contract With Vila & Sons After Petitioner's default, the Department contracted with another entity "in order to salvage the Department's investment in this landscaping project, i.e., ensure that the plantings become established, " That contract, entered into in May 2003 between the Department and Vila & Sons Landscaping Corporation, is identified as contract number E-5H09 (Vila & Sons Contract). The contract amount was $112,461.36. The Vila & Sons Contract was for "one-time maintenance" of three of the sites that Petitioner was responsible for under its contract with the Department. The sites were the I-4/Lake Mary Boulevard interchange, the SR 25/SR 200 interchange, and the US 441/SR 46 interchange. The Vila & Sons Contract was only for a 60-day period and consisted of the following landscape maintenance functions: 1) weeding [which includes pruning of existing live shrubs], 2) removal and replacement of dead shrubs, 3) fertilizing [which includes "watering in"], 4) remulching as necessary, 5) watering for plant establishment and/or maintenance. (Brackets in original). The Vila & Sons Contract called for the installation of 3,700 plumbago shrubs. It does not make reference to the removal of dead palm trees, the re-erection of fallen palm trees, or the installation of new palm trees. The bid form for the Vila & Sons Contract included separate line-items for water, mulch pine bark, plumbago shrubs, slow-release fertilizer, and "landscape maintenance (weed removal, manual)." The record does not establish whether the Vila & Sons Contract was satisfactorily performed or whether it was successful in "salvaging" the installation work which had been done by Petitioner. Between the time that Petitioner was declared in default in September 2002 and May 2003 when the Vila & Sons Contract was entered into, the Central Florida area had periods of cold weather. The cold temperatures during those periods may have killed some of the plumbagos and palm trees installed by Petitioner, but the record does not establish how many plants, if any, were killed by the cold weather as compared to the plants that were already dead at the time of Petitioner's default.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order which declares Petitioner non-responsible and ineligible to bid on Department contracts for a period of two years, commencing on the date of the final order. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2003. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32308 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Maribel Mackey is the sole proprietor of Petitioner Maribe1 Mackey Landscaping. As a woman of Hispanic heritage (Cuban), she falls into two of the presumptive categories of socially and economically disadvantaged individuals. Petitioner is a landscaping company started in April, 1990, by Maribel Mackey as its sole owner. The company does not itself perform either irrigation or sod work as was sworn to on its application; rather, it subcontracts those items of work when they are required under a contract. Petitioner conducts business out of the home of Maribel and Robert Mackey at 5032 S.W. 121 Avenue, Cooper City, Florida. Robert and Maribel Mackey were married in March, 1988. Maribel Mackey had no prior experience in the landscaping business prior to starting her business. Robert Mackey is the sole shareholder of a landscaping company known as Robert Mackey Landscaping, Inc., incorporated in 1988. Prior to the formation of that business entity, Robert Mackey was the sole proprietor of Robert Mackey Landscaping from approximately 1982 to 1988. In total, Robert Mackey has been in the landscaping business for approximately 17-18 years. Robert Mackey also conducts his 1andscaping business out of the home he shares with Maribel. Both businesses share the same office in the Mackey home and share the same office equipment, which includes: a desk, a phone (which doubles as their home phone), a file cabinet, a copying machine and a fax machine. Robert Mackey acts in more than an advisory capacity with Petitioner. Robert Mackey also assisits Maribel Mackey with bid estimating and in the supervision of field operations. Robert Mackey has also helped Maribel Mackey Landscaping to obtain credit for the purchase of landscaping supplies at nurseries and in the leasing of equipment used in the landscaping business. Robert Mackey performed and/or assisted Maribel Mackey in putting together a Proposal on the Kathcar Building. The original of this Proposal was done on a form of Robert Mackey Landscaping and was signed by Robert Mackey. The copy forwarded to the Department and admitted as an exhibit during the final hearing had been altered to reflect Petitioner's name and the signature of Maribel Mackey had been added to that of Robert. Robert and Maribel Mackey maintain a line of credit in the amount of $100,000. This line of credit is available to both of them for either personal or business purposes and requires both signatures. This line of credit is secured by a mortgage on the Mackeys' personal residence. Maribel and Robert Mackey have an informal, oral agreement not to compete with each other in the landscaping business. Maribel Mackey is prepared to forfeit substantial profits on behalf of Petitioner by referring potential landscaping jobs to her husband's company. Maribel and Robert Mackey, as part of this agreement, have agreed that Petitioner will concentrate exclusively on public or government projects, while Robert Mackey Landscaping will concentrate exclusively on private projects. Petitioner has, however, done private work, and Robert Mackey Landscaping has done public work and currently has a bid in on another public project. In addition, Maribel Mackey's business card states on its face that Petitioner performs "residentia1 and interior" work. Petitioner is currently certified as a Women's Business Enterprise and/or a Minority Business Enterprise with the following governmental entities: Broward County, The School Board of Broward County, and Palm Beach County. Broward County, in its evaluation of Petitioner's application to be certified as a WBE/MBE, did not visit Petitioner's place cf business to conduct an on-site interview with Maribel Mackey. Broward County, when it certified Petitioner as a WBE/MBE, did not know that Petitioner shared the same office space and equipment with Robert Mackey Landscaping. Broward County also did not know that Robert Mackey had his own landscaping business or that he had been in the landscaping business for approximately 17-18 years.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner Maribel Mackey Landscaping certification as a Disadvantaged Business Enterprise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of January, 1991. LINDA M. RIGOT Hearing Officeer 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 24th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-5830 Petitioner's proposed findings of fact numbered 1-3 and 5 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4 and 6-8 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 9-11 have been rejected as not constituting findings of fact but rather as constituting argument. Respondent's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: William Peter Martin Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458 Maribel Mackey 5032 Southwest 121 Avenue Cooper City, Florida 33330 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458
Findings Of Fact Petitioner is an unsuccessful candidate for the landscape architects examination given in June, 1990, (the "examination"). Petitioner achieved a passing grade on Sections 2 and 5 of the examination but failed Sections 3 and 4. Petitioner received a score of 72.8 percent on Section 3 of the examination. The minimum passing score is 75 percent. At Petitioner's request, Respondent regraded Petitioner's answers to Section 3 of the examination. Petitioner's score upon regrade was 73 percent. Petitioner needs 2 percentage points to pass Section 3 of the examination. Petitioner received a score of 54.3 percent on Section 4 of the examination. The minimum passing score for Section 4 of the examination is 75 percent. At Petitioner's request, Respondent regraded Petitioner's answers to Section 4 of the examination. Petitioner's score upon regrade was 60 percent. Petitioner needed 25 percentage points to pass Section 4 of the examination, but waived his challenge to Section 4 during the formal hearing. Petitioner was given proper credit for his answers to Section 3 of the examination. Petitioner should have received and received a score of 73 percent when Respondent regraded Petitioner's answers to Section 3 of the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's challenge to the score he received for Section 3 of the landscape architect examination given in June, 1990. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of September 1991. DANIEL MANRY 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 24th day of September 1991. APPENDIX TO RECOMMENDED ORDER Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs. Petitioner did not submit proposed findings of fact. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Accepted in Finding 2 Accepted in Finding 3 Accepted in Findings 3-4 COPIES FURNISHED: Angel Gonzalez Executive Director Board of Landscape Architecture Board 1940 N. Monroe Street Tallahassee, Florida 32399-0750 Jack McRay General Counsel 1940 North Monroe Tallahassee, Florida 32399-0792 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe Tallahassee, Florida 32399-0792 Case No. 91-2120 (continued) Mr. Dale R. Smith 28225 Southwest 172d Avenue Homestead, Florida 33030
The Issue DOAH Case No. 04-0262: Whether Respondent, West Florida Landscaping & Landscaping, Inc. ("West Florida Landscaping"), owes Petitioner, South Florida Sod, Inc. ("South Florida Sod"), $29,360.80 for the sale of sod during the months of July and August 2003. DOAH Case No. 04-0306: Whether Respondent, West Florida Landscaping, owes Petitioner, Bayside Sod, Inc. ("Bayside Sod"), $18,750.68 for the sale of sod during the month of October 2003.
Findings Of Fact Petitioners, South Florida Sod and Bayside Sod, are producers of agricultural products as defined by Subsection 604.15(5), Florida Statutes (2003). Both Petitioners grow and sell sod. South Florida Sod is located in Arcadia, Florida. Bayside Sod is located in Sarasota, Florida. Respondent, West Florida Landscaping, located in Plant City, Florida, is a dealer in agricultural products as defined by Subsection 604.15(1), Florida Statutes (2003). At the time of the transactions in question, West Florida Landscaping was licensed as a dealer in agricultural products supported by a surety bond provided by Old Republic Surety Company. West Florida Landscaping began purchasing sod from South Florida Sod in early 2003. The sod was purchased by a man named Dallas Justice. Bryant McCall, vice president of South Florida Sod, testified that Robert Owens, the owner of West Florida Landscaping, told him that Mr. Justice worked for him and would do the ordering for West Florida Landscaping. The initial purchases were cash transactions. At some point during the course of dealings, Mr. Owens contacted South Florida Sod to request a line of credit. Mr. Owens completed a credit application, and thereafter West Florida Landscaping purchased sod on credit. Mr. McCall testified that West Florida Landscaping was never a model credit customer. He had to "hound" West Florida Landscaping to pay its bill. However, up until July and August 2003, West Florida Landscaping always paid the bill, though often well after payment was due. From July 11 through August 27, 2003, Mr. Justice placed 43 orders for sod with South Florida Sod in the name of West Florida Landscaping. The sod was picked up at South Florida Sod's place of business by truckers sent by Mr. Justice. The total price for all these orders was $29,360.80. Invoices for each of these orders were sent to West Florida Landscaping, which neither paid them nor disputed their validity. Mr. McCall contacted Mr. Owens about payment of the invoices. Mr. McCall testified that Mr. Owens stated that he had been out of town during the period of the unpaid invoices. Mr. Owens told Mr. McCall that upon returning, he discovered that Mr. Justice was defrauding him. Mr. Justice was ordering the sod and completing the work for West Florida Landscaping projects, but was also collecting the customers' payments and keeping the money for himself. Mr. Owens did not fire Mr. Justice or turn him over to law enforcement authorities because he wanted Mr. Justice to work off the debt. Mr. Owens promised Mr. McCall that he would make good on the debts incurred by Mr. Justice with South Florida Sod. Mr. McCall testified that a payment schedule was established, but that Mr. Owens did not observe it, forcing South Florida Sod to file a Producer Complaint. As of December 5, 2003, the balance owed South Florida Sod by West Florida Landscaping was $29,360.80. West Florida Landscaping began purchasing sod from Bayside Sod on a cash basis sometime in the middle of 2003. A man named "Gene," later identified as Dallas Justice, ordered the sod on behalf of West Florida Landscaping. Bayside Sod sold 11 truckloads of sod to Mr. Justice and was paid cash. On October 1, 2003, Bayside Sod first extended credit to Mr. Justice at his request. Between October 2 and October 22, 2003, Mr. Justice took delivery of 23 orders for various amounts of sod worth $18,750, with Florida sales tax. None of these deliveries was paid for by Mr. Justice or West Florida Landscaping. Paul Bispham, owner and president of Bayside Sod, testified that he spoke with Mr. Owens on December 13, 2003. Mr. Owens assured Mr. Bispham that he and Mr. Justice would pay the debt. Benjamin Strong is a field superintendent for Trent Colony Landscaping. He gave West Florida Landscaping's name to Mr. Bispham as a reference when the latter contacted him to solicit new business. Mr. Strong had done business with Mr. Justice and West Florida Landscaping. His practice was to make out checks to West Florida Landscaping and give the checks to Mr. Justice. Mr. Strong testified that Mr. Owens later told him emphatically not to give any West Florida Landscaping checks to Mr. Justice. At the hearing, Mr. Owens denied that Mr. Justice was ever an employee of West Florida Landscaping. Rather, Mr. Justice was an independent contractor whom Mr. Owens would hire on a per-job basis to lay sod. However, Mr. Owens admitted that he gave Mr. Justice authority to order sod for West Florida Landscaping, thus mooting the significance of Mr. Justice's status as an employee or independent contractor. Mr. Owens further admitted that he signed the letter seeking a line of credit from South Florida Sod. Mr. Owens testified that he was in New Orleans for an extended period. While Mr. Owens was gone, Mr. Justice began ordering sod for jobs of his own, but had the purchases billed to West Florida Landscaping. Mr. Owens testified that he has paid for any sod that Mr. Justice ordered for West Florida Landscaping projects, but that he believed himself under no obligation to pay for sod that Mr. Justice ordered for his own jobs. He discovered, belatedly, that Mr. Justice was "a liar and a cheat." Mr. McCall credibly testified that Mr. Owens said nothing to him about Mr. Justice having used West Florida Landscaping's name to fraudulently obtain sod. Rather, Mr. Owens told him that Mr. Justice was, in Mr. Owens' absence, completing West Florida Landscaping jobs, but then cashing the checks made out to West Florida Landscaping and pocketing the money. This testimony is consistent with that of Mr. Strong and is credited. Mr. Owens admitted to making some efforts to deduct money from Mr. Justice's pay in order to settle the debts with South Florida Sod, but stated that he did not feel a legal obligation to do so. Mr. Justice was subpoenaed to appear and testify at the hearing in this matter, but he did not appear. By the weight of the evidence and by his own admission, Mr. Owens authorized Mr. Justice to order sod on behalf of West Florida Landscaping. The evidence established that a course of dealing was established between Mr. Justice, on behalf of West Florida Landscaping, and the Petitioners in these cases, whereby Mr. Justice would order and take delivery of the sod from the Petitioners, and West Florida Landscaping would pay the invoices for the sod. The greater weight of the evidence is that Mr. Justice was acting on behalf of West Florida Landscaping in all his dealings with South Florida Sod and Bayside Sod. In light of the established course of dealing, West Florida Landscaping failed to establish any reasonable basis for its contention that South Florida Sod and Bayside Sod should have inquired as to Mr. Justice's continuing authority on each occasion that he ordered their sod. Mr. Owens' testimony that the sod ordered by Mr. Justice from South Florida Sod and Bayside Sod was not for West Florida Landscaping jobs cannot be credited based on the testimony of other witnesses and Mr. Owens' own actions subsequent to learning these suppliers had not been paid. While there is no question that Mr. Justice was the actual wrongdoer in these cases, there is also no question that it was West Florida Landscaping that lent the name of its legitimate business to Mr. Justice and, thus, enabled him to defraud South Florida Sod and Bayside Sod.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering Respondent, West Florida Irrigation & Landscaping, Inc., to pay $29,360.80 to South Florida Sod, Inc., and $18,750.68 to Bayside Sod, Inc., together with pre-judgment interest calculated at the rate specified in Section 55.03, Florida Statutes (2003); and further requiring Old Republic Surety Company to make payment, up to the amount of its bond, in the event that West Florida Irrigation & Landscaping, Inc., fails to make payment in a timely manner. DONE AND ENTERED this 1st day of March, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 March, 2005.
The Issue The issue is whether Petitioner’s large family day care home license should be renewed.
Findings Of Fact Petitioner is a large family day care home owned and operated by Clarissa Roberts since 2000. Petitioner’s license number is L05LA001. The license was issued on June 7, 2007, and expired on June 6, 2008. Petitioner timely submitted an application for a renewal license, and after the Department gave notice of its intent to deny the renewal license, Petitioner was issued a provisional license pending the outcome of this proceeding. Petitioner’s licensed capacity is 12 children. The maximum number of children that can be present at the facility at any given time depends upon the children’s ages and the number of staff present, but in no event can there ever be more than 12 children at the facility. Ms. Roberts or her designated substitute, and one other staff person are required to be present at the facility during all hours of operation. Additional staff may be required to maintain the staff-to-child ratio, which varies based upon the ages of the children present. If only one staff person is present at a large family day care home, it must be the owner or her designated substitute, and the facility is limited to 10 children. The Department conducted a routine inspection of Petitioner on November 20, 2007. A number of areas of “noncompliance” were observed during the inspection. First, Ms. Roberts was not present at the facility, nor was her designated substitute, Kathleen Smith-Belton. Ms. Roberts had left town on an emergency that morning, and the only staff person present at the facility was Ms. Roberts’ adult daughter, Christy Troupe. Second, Petitioner was “over capacity” since there were 11 children and only one staff person at the facility. Third, Petitioner did not have documentation of any fire drills having been conducted since April 2007. Monthly fire drills are required. Fourth, almost half of the children’s files were missing current immunization records and/or current physical records. The Department’s inspector required Ms. Troupe to contact parents to arrange for children to be picked up. Two children were picked up while the inspector was present, which resolved the capacity issue. The Department issued a “warning letter” to Petitioner based upon the violations documented during the November 20, 2007, inspection. The letter, dated December 14, 2007, advised Petitioner that further violations “will result in the imposition of an administrative fine.” Childhood Development Services, Inc. (CDS) conducted a routine inspection of Petitioner on January 30, 2008. CDS administers a federal-state program through which Petitioner receives money for providing meals to eligible children at the facility. Petitioner was over its licensed capacity at the time of the CDS inspection. There were 13 children at the facility. CDS conducted a follow-up inspection on February 25, 2008. Petitioner was again over its licensed capacity at the time of the follow-up inspection. There were 17 children at the facility. CDS reported these findings to the Department as it was required to do. The Department treated the report as a “complaint.” The Department conducted an inspection of Petitioner on February 28, 2008, in response to the complaint from CDS. Petitioner was found to be over its licensed capacity at this inspection. There were 15 children at the facility. The Department issued an Administrative Complaint for this violation. Petitioner did not contest the violation, and paid a $100 fine. The Department conducted another inspection of Petitioner on March 19, 2008. This inspection was conducted as a result of a complaint received by the Department alleging that Petitioner was routinely over capacity and that some of the children were being kept at a nearby house owned by Ms. Roberts. Petitioner was found to be over its licensed capacity at this inspection. There were 17 children at the facility, including an infant in a stroller. There were also four other “attempted drop-offs” of children during the time that the Department’s inspectors were present. A number of other areas of “noncompliance” were also observed during this inspection. First, one staff person, Lorna Susan Rominger, had not undergone the required background screening even though she had been working at the facility for well over a year. Second, there were cleaning supplies on a counter that the children could reach. Third, the house “reaked” of smoke and Ms. Roberts admitted to smoking in the house when the children were not present, but the children’s files did not include the required documentation showing that the parents had been notified that someone living in the home smokes. Fourth, the immunization records of one of the children had expired. Fifth, Petitioner did not have the required transportation log for the van used to transport the children. Five of the children were in the van when the Department’s inspectors arrived, and none were in appropriate child restraint seats. Petitioner was also cited for keeping children at an unlicensed facility, even though no children were observed during the inspection at the nearby home owned by Ms. Roberts. Petitioner fired Ms. Rominger on March 19, 2008, the day of the Department’s inspection. Ms. Rominger claimed that she was fired for reporting Petitioner to the Department. Ms. Roberts claimed that Ms. Rominger was fired for her continuing failure to submit the documentation necessary for the background screening. Ms. Rominger’s testimony was more persuasive on this issue, even taking into account the ongoing dispute between her and Petitioner concerning unemployment compensation. Ms. Roberts acknowledged in her testimony that it was her responsibility as Petitioner’s owner-operator to ensure that all employees were screened. She also acknowledged that she allowed Ms. Rominger to work for Petitioner for well over a year without being screened even though she understood that the law required employees who were not timely screened to be fired. Ms. Roberts denied the allegations that she kept children at the home that she owned near the licensed facility, and no persuasive evidence was presented to corroborate Ms. Rominger’s testimony on this issue.2/ The Department conducted an inspection of Petitioner on April 30, 2008, as part of the license renewal process. Petitioner was within its licensed capacity at the time of this inspection, and except for the notice to the parents concerning smoking in the home, the areas of “noncompliance” documented during the prior inspections had been corrected. Ms. Roberts credibly testified that she prepared a form and provided written notice to the parents about the smoking in the home subsequent to the re-licensure inspection. Ms. Roberts acknowledged in her testimony that Petitioner was over its licensed capacity on those occasions where more than 12 children were present at the facility. Ms. Roberts testified that the over capacity issues only occurred during “transition periods” involving the voluntary pre-kindergarten program that she operated out of her home and/or the school age kids that she took to school in the mornings. This testimony was not persuasive. The “transition periods” described by Ms. Roberts were around 8:30 a.m. and around 11:30 a.m., but contrary to her testimony, all of the inspections did not occur during those periods. For example, the November 20, 2007, inspection occurred between 1:27 p.m. and 3:02 p.m., and the February 28, 2008, inspection occurred between 12:10 p.m. and 12:57 p.m. Ms. Roberts acknowledged in her testimony that it was her responsibility as Petitioner’s owner-operator to be familiar with the statutes and rules governing the operation of large family day care homes. The Department considers capacity and background screening violations to be “serious” because they involve issues of safety and supervision of the children at the facility. Violations of these requirements put the children at risk of harm.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner’s application for a renewal license. DONE AND ENTERED this 5th day of September, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2008.
The Issue Whether Petitioner's challenge regarding the June 1997 landscape architecture licensure examination should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In June of 1994, Petitioner took the national landscape architecture licensure examination (LARE). LARE is an examination developed, administered and graded by the Council of Landscape Architectural Registration Boards (CLARB). The 1994 version of LARE, like all subsequent pre-1997 versions of the examination, contained seven parts: Legal and Administrative Aspects of Practice (part 1), Programming and Environmental Analysis (part 2), Conceptualization and Communication (part 3), Design Synthesis (part 4), Integration of Technical and Design Requirements (part 5), Grading and Drainage (part 6) and Implementation of Design Through the Construction Process (part 7). Three of the seven parts of the examination, parts 1, 2 and 7, consisted of multiple choice questions. Parts 2 and 7 had 90 and 120 questions, respectively. The passing score for each part of the examination was 75. On the June 1994 examination, Petitioner received a passing grade of 75 on part 2 and failing grade of 69 on part 7. In June of 1995, Petitioner retook part 7 of the examination (as well as four other parts of the examination she had failed in 1994). Petitioner received a failing grade of 71 on part 7 of the June 1995 examination. After receiving her scores on the June 1995 examination, Petitioner sent a letter, dated October 10, 1995, to the Department of Business and Professional Regulation (Department), which read as follows: Pursuant to Section 120.57(1), Florida Statutes, I would like to petition for a formal hearing before the Division of Administrative Hearings. I am disputing my scores achieved on the Landscape Architecture Registration Examination (LARE) for sections 3, 4, 5 6 and The reason I am disputing the score on these sections is because I was comfortable with the examination format, paid specific attention to detail and felt confident that I had successfully designed appropriate buildable solutions to the problems meeting or exceeding minimum competency. The procedures for requesting a formal hearing were written with what appear to be contradictions and therefore I am enclosing a copy that was mailed to me. Since the information pamphlet specifically states that NO CHALLENGES TO SECTIONS 1 THRU 7 OF THE EXAMINATION WILL BE ACCEPTED, it is not clear then why it states that a candidate electing to review the examination for the purpose of submitting challenges is then stated. I did call the Department of [Business and Professional] Regulation and spoke with JoAnn Richardson at the Bureau of Testing for clarification. In my first conversation with her, she stated that I would be able to request a pre-hearing review in order to accurately challenge my scores. In a second conversation with her on that same day, she then said that it would be O.K. to go to the review and then submit this letter of petition for a formal hearing. Since the dates in this pamphlet do not accurately reflect our conversation, I asked her if she could write it in a letter for me so that I was confident that I would not miss the deadline to file for this petition. I have not received this letter from her and therefore am petitioning for a formal hearing at this time with a request for a pre-hearing review of my examination. Petitioner received a letter from the Department, dated October 27, 1995, acknowledging receipt of her October 10, 1995, letter and advising her that her letter had been "forwarded to the Office of the General Counsel for review and action." No action, however, was subsequently taken on the matter. Petitioner telephoned the Department on several occasions to ascertain the status of her hearing request. She was told that she would be notified when a hearing was scheduled. Such notification, however, never came. Petitioner therefore applied to retake, in June of 1996, those parts of the LARE she had not yet passed, including part 7. The Pre-Exam Orientation Information booklet that CLARB sent to candidates before the June 1996 examination alerted candidates to the following: 1996 will be the last time to take Sections 2 and 7 of the LARE separately. In 1997, Sections 2 and 7 of the current test will be combined into a new Section 2(7)- Analytical and Technical Aspects of Practice. If a candidate does not pass both Sections 2 and 7 separately in 1996 he/she will be required to complete the new Section 2(7). Petitioner received a failing grade of 74 on part 7 of the June 1996 examination. She did not take any steps to challenge this failing grade. The revisions announced in the 1996 Pre-Exam Orientation Information booklet were made to the 1997 version of the LARE. Parts 2 and 7 of the examination were replaced by a new part 2(7), entitled "Analytical and Technical Aspects of Practice," which consisted of 130 multiple choice questions. This new part of the examination tested the same general knowledge, skills and abilities as had parts 2 and 7 of the previous examinations, but did so in a more efficient manner. In June of 1997, Petitioner took part 2(7) of the examination and received a failing grade. The failing score that Petitioner received on part 2(7) of the June 1997 examination, and the failing scores that she received on part 7 of the 1994, 1995, and 1996 examinations, are reliable indicators of her competency in the areas tested at the time she took the examinations. These failing scores reflect her failure to meet minimum competency in the areas tested, as determined by the panel of experts who set the passing scores for these examinations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner is not qualified for licensure as a landscape architect because she has not yet passed the licensure examination, as required by Section 481.311(2)(a), Florida Statutes. DONE AND ENTERED this 11th day of September, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1998.
