The Issue Whether Respondent, an appraiser, committed the offenses alleged in Counts I, II, and IV of the Amended Administrative Complaint1 and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with regulating and enforcing the statutory provisions pertaining to persons holding licenses as real estate appraisers. Petitioner is charged with the duty to prosecute administrative complaints pursuant to Chapters 20, 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. The Report was dated November 30, 1998. At that time, Respondent was a registered appraiser who could only perform appraisals under the supervision of a certified appraiser. As of November 30, 1998, Mr. Mesa served as the certified appraiser who supervised Respondent. Respondent’s expert witness described Respondent’s status while he worked for Mr. Mesa as being a “trainee,” “apprentice,” or “journeyman.” Both Respondent and Mr. Mesa signed the Report. Above Respondent’s signature is the designation “Appraiser.” Under Respondent’s signature is his state license number and a designation indicating his status as a registered real estate appraiser. Above Mr. Mesa’s signature is the designation “Supervisory Appraiser.” Under Mr. Mesa’s signature is his state license number and a designation indicating his status as a certified real estate appraiser. At the top of the Report were the words “Mesa Appraisals.” On the bottom of the Report were the words “Mesa Appraisals, Inc.” Petitioner failed to prove the factual predicate set forth in paragraph 5(a) of the Amended Administrative Complaint. The testimony of Ms. DeFonzo established that there was adequate documentation contained within the Report to support the negative adjustment to comparable sale 1 because that comparable had a swimming pool and the subject property did not. Petitioner failed to prove the factual predicate set forth in paragraph 5(b) of the Amended Administrative Complaint. The testimony of Ms. DeFonzo established that there was adequate documentation contained within the Report to support the negative adjustments to comparable sales 1, 2, and 3 because those comparable sales were sited on larger lots than the subject property. Petitioner failed to prove the factual predicate set forth in paragraph 5(c) of the Amended Administrative Complaint. The testimony of Ms. DeFonzo established that there was adequate documentation contained within the Report to support the values reached under the cost approach methodology. Petitioner failed to prove the factual predicate set forth in paragraph 5(d) of the Amended Administrative Complaint. The testimony of Ms. DeFonzo established that the Report reflected the intended use of the Report and the intended users of the Report. The Report reflects that it was for lending purposes and identifies the lender/client. As to paragraph 5(e), the testimony of Ms. DeFonzo established that industry practice was for the certified appraiser to maintain the original appraisal file and for the registered appraiser not to keep a copy of the original file because of the confidential and proprietary information that may be contained in appraisal file. There was no competent evidence that Respondent acted inconsistently with that industry practice.3
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of each of the counts set forth in the Amended Administrative Complaint. DONE AND ENTERED this 14th day of November, 2006, in Tallahassee, Leon County, Florida. S 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 14th day of November, 2006.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's Final Determination be approved and that Respondent be required to repay $1,753 in grant funds expended in a manner inconsistent with Department regulations. DONE and ENTERED this 16th day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1982. COPIES FURNISHED: Sonja P. Mathews, Esquire Suite 117-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Robert L. Davis Post Office Box 350 Apalachicola, Florida 32320
The Issue This matter is a bid protest filed by STATEWIDE challenging the DEPARTMENT's decision to award a contract for service of process services to All American Legal Service, Inc., (herein after All American). The DEPARTMENT's position was chat a company could meet the two years of experience in serving legal process requirement if key personnel had at least two years of experience. All American was the lowest bidder on ITB-DOT-95/96-9003. STATEWIDE was the second-lowest bidder. STATEWIDE protested, claiming the DEPARTMENT should have rejected All American's bid on the grounds that All American did not have two years of experience and had not identified its key personnel or provided the DEPARTMENT with copies of circuit court issued certifications to serve process. During the formal hearing on October 23, 1995, testimony was received that All American is the corporate successor of a firm that was formed approximately 23 months prior to the bid being submitted and had as part of its organization an independent contractor, Robert Simmons, who was a licensed process server and who lacked two years of experience in serving process at the time the bid was submitted. All American also retained the services of the founder and former owner, Jon C. Martin, to act as an advisor. Mr. Martin lacked two years of experience in serving civil process at the time the bid was submitted. The DEPARTMENT offered testimony that it did not require the bidding entity to have been in existence for more than two years so long as the company had employees (either direct employees or independent contractors) with the requisite experience. DEPARTMENT officials also testified that no personnel were considered key personnel by the DEPARTMENT. DEPARTMENT'S EXCEPTIONS TO RECOMMENDED ORDER The DEPARTMENT's first exception is rejected as irrelevant. The DEPARTMENT's remaining exceptions are rejected and need not be individually reached inasmuch as the conclusion of this Order is chat a decision to waive the two years of experience requirement in the bid documents would be an abuse of discretion. To describe a requirement as so essential as to require no consideration of the bid when it is not met, and later construe the bid documents as allowing waiver of the requirement is, by definition, without reason and arbitrary
Findings Of Fact The DOT issued ITB-DOT-95/96-9003 (the ITB) soliciting bids from contractors to provide for one year on an as-needed-basis to its General Counsel all services necessary to effectuate service of process, service of subpoenas, and service of other papers statewide in accordance with the applicable laws to be submitted on August 16, 1995. AALSI submitted the lowest bid for the ITB. Statewide submitted the second lowest bid for the ITB. Section 1.5 of the ITB, Joint Exhibit 1, stated as follows: GENERAL Bidders should meet the following minimum qualifications. Have been actively engaged in the type of business being requested for a minimum of two years. When submitting the bid, each bidder shall submit a written statement, (FORM D), detailing their qualifications which demonstrate they meet the minimum qualifications contained in Subparagraph 1.5.1.1. Bidders' failure to prove the above item(s) will constitute a non-responsive determination. Bids found to be non-responsive shall not be considered. (Emphasis in original.) A representative of the DOT testified and both parties agree that the word "should" in the provision above is mandatory and in context means "shall." It was important to DOT that bidders have at least two years experience in the business of serving process, and DOT intended to reject any bids which did meet this requirement. Exhibit "A" to the ITB, "Scope of Services," Section B.1, "Services Required," and B.5, "Who Shall Provide Services," provided respectively that: B.1 Services Required The contractor shall provide all services necessary to effectuate service of process, subpoenas and other papers throughout the state of Florida, and shall provide such services in accordance with the laws of the state of Florida. . . B.5 Who Shall Provide Services Services shall be provided by individuals in compliance with Chapter 48, Florida Statutes, and other applicable law. Section 48.29, Florida Statutes, requires that persons serving process be certified by the chief judge of each judicial circuit. The business being requested, as the term is used in the ITB, is all services necessary to effectuate service of process, subpoenas, and other papers throughout the State of Florida for civil actions in accordance with the laws of the State of Florida. No evidence was received that the DOT is involved with the service of arrest or search warrants. Paragraph 1.5.2, "Qualifications of Key Personnel," provides that: Those individuals who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Project Manager. Where State of Florida registration or certification is deemed appropriate, a copy of the registration of certificate should be included in the bid package. The ITB required that a bidder demonstrate that its key personnel had experience in providing all services necessary to effectuate service of process, subpoenas, and other papers throughout the State of Florida in accordance with the law. Form D asked bidders to answer the following questions: How many years has your business been serving process? In what counties are your currently serving process? Describe your current capabilities to serve process in the State. If you do not have the current capability to serve process in all counties of the State of Florida, describe the changes that you will make in order to be able to serve process in all counties. Describe the means by which your business would accomplish routine services of process on a statewide basis under the Scope of Services of the Invitation to Bid. Describe the means by which your business would accomplish priority service of process on a statewide basis under the Scope of Services of the Invitation to Bid. The ITB contained a provision which permitted it to waive minor informalities or irregularities in bids received which were a matter of form and not substance. The requirement that the bidder have two years experience is not, under the terms of the ITB, a waivable provision, but was part of the essential minimal requirements which the bidder must have. In response to the first question on Form D, AALSI responded: All American Legal Service, Inc. and its predecessor firm, Jon C. Martin & Associates, have been in business over two years and provides nationwide service for its existing clients. DOT accepted the representation of AALSI in evaluating whether it possessed the required two years of experience, and concluded AALSI was qualified. DOT also evaluated the other responses by AALSI to Form D to assess its approach to providing the scope of work required by the ITB, and concluded it was qualified. Evidence presented at hearing revealed that Jon C. Martin, a former law enforcement officer, had begun a private investigation business as a sole proprietorship in September, 1993. Mr. Martin, who testified at hearing, found that it was more profitable to serve process than to conduct investigations, and changed the emphasis of the business; however, Mr. Martin was not personally authorized to serve process nor did he serve any process until May, 1994, although he had served arrest warrants as a law enforcement officer. Mr. Martin used the services of qualified process servers to serve process in the central Florida region; however, these personnel were not employees of Martin. Mr. Martin was a member of the National Association of Professional Process Servers (NAPPS), whose members are qualified to serve process; and Mr. Martin used this service to find the names of persons qualified to serve process in those counties and jurisdictions in which he did not have employees or contract personnel. Mr. Martin changed the name of his business to All American Process, and ultimately incorporated under that name. Mr. Martin sold All American Process in May, 1995 to Andrew Forness and Forness' father, who changed the name of the corporation to All American Legal Service, Inc. Mr. Martin agreed to be an unpaid advisor/consultant to Mr. Forness after the sale. Mr. Forness has virtually no experience as a process server, and had never been qualified to serve process or served process until after May, 1995. Mr. Forness is dependent upon Robert Simmons, an independent contract process server, for daily advice on service of process. Mr. Forness has continued to use the network of personnel used by Mr. Martin, who are not employees of the business, and NAPPS to serve process. The business does employ two full-time, paid certified process servers, who reside and work in central Florida area. One of these employees, Noah Medeiros, was first authorized to serve process in Orange County in September 1995, and is not authorized to serve process in any other county in Florida. No information was provided on the other employee. Mr. Forness did not identify anyone as a key individual in the bid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That DOT not award the bid to AALSI which was determined to have been a nonresponsive bidder, and that it consider awarding the bid to the next lowest, responsive bidder, Statewide. DONE and ENTERED this 18th day of December, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-5035BID Both parties submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraphs 1,2 Paragraph 1 Paragraph 3 Paragraph 2 Paragraph 4 Paragraph 3 Paragraph 5 Paragraph 4 Paragraphs 6,7 Paragraph 5 Paragraph 8 Paragraph 6 Paragraph 9 Paragraph 8 Paragraph 10 Paragraph 9 Paragraph 11 Paragraph 6 Paragraph 12 Conclusion of Law Paragraphs 13,14 Subsumed in Paragraph 13 Paragraphs 15-20 Subsumed in Paragraphs 16-18 Paragraphs 21-26 Subsumed in Paragraphs 18-19 Paragraph 27 Subsumed in Paragraphs 7,8 Paragraph 29 Ultimate finding Paragraph 30 Paragraph 14 Paragraph 31 Irrelevant Paragraph 32 Ultimate finding Respondent's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 Paragraph 3 Paragraph 4 Paragraph 4 Paragraph 5 Paragraph 5 Paragraph 11 Paragraph 6 Subsumed in Paragraph 5 Paragraph 7 Subsumed in Paragraph 12 Paragraph 8 Not necessary Paragraph 9 Paragraph 13 Paragraph 10,11 Subsumed in Paragraph 14 Paragraph 12-16 Irrelevant or argument Paragraph 17 Paragraph 9 Paragraph 18-25 Irrelevant or argument Paragraph 26,27 Subsumed in Paragraphs 2,3 Paragraph 28-33 Subsumed in Paragraph 16 Paragraph 34-41 Subsumed in Paragraph 19 COPIES FURNISHED: J. Layne Smith, Esquire 2804 Remington Green Circle, Suite 4 Tallahassee, FL 32308 Thomas H. Duffy, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
