The Issue At issue in this proceeding is whether the decision of the Department of Management Services (Department) to reject the bid of National Data Products, Inc. (NDP), as non-responsive departed from the essential requirements of law.
Findings Of Fact Background On December 4, 1992, the Department of Management Services (Department) issued Invitation to Bid number 79-250-040-B REBID (hereinafter "the ITB") to establish a contract whereby eligible users could purchase microcomputers and optional components during the period of January 15, 1993, through October 31, 1993. The deadline for submitting sealed bids in response to the ITB was established as 2:00 p.m., December 16, 1992. At the time of the deadline, the Department received a number of bids, including those of petitioner, National Data Products, Inc. (NDP), and intervenor, Mon-Wal, Inc., d/b/a the Waldec Group (Waldec). On December 21, 1992, following its evaluation of the bids, the Department posted its bid tabulation. The bid tabulation indicated, inter alia, that, although NDP was the apparent low bidder, its bid had been rejected as non-responsive, and that Waldec was declared the low responsive bidder. Pertinent to this case, the predicate for the Department's rejection of NDP's bid was its conclusion that NDP had failed to include, as required by the ITB, the manufacturer's suggested retail price lists with its bid. NDP filed a timely notice of protest and formal written protest to contest the Department's decision. Such protest contended that the manufacturer's suggested retail price lists were included with its bid or, alternatively, that had they not been submitted, such oversight was a minor irregularity that should be waived. The Invitation to Bid The stated purpose of the ITB was to establish pricing for the purchase of microcomputers and optional components to be added to an existing contract for use by all State of Florida agencies and other eligible users. Specifically, the ITB invited bids for three separate product lines, Hewlett Packard, NCR and Zenith, and a bidder could respond with regard to one or more of the product lines. This bid protest relates only to that portion of the ITB regarding the Hewlett Packard (HP) product line. The ITB, apart from specifying the HP product line, did not identify any particular HP product or volume. Rather, the ITB sought to establish pricing by requiring each bidder to specify a percentage discount off the manufacturer's suggested retail price of all HP microcomputer systems and peripheral products. Pertinent to this case, the general conditions of the ITB provided: 9. AWARDS: As the best interest of the State may require, the right is reserved . . . to reject any and all bids or waive any minor irregularity or technicality in bids received. * * * 15. PRICE ADJUSTMENTS: Any price decrease effectuated during the contract period by reason of market change shall be passed on to the State of Florida . . . Price increases are not acceptable. * * * 24. THE SUCCESSFUL BIDDER(S) MUST PROVIDE: A copy of any product literature and price list, in excellent quality black image or white paper, or on 4 x reduction microfiche, suitable for duplication (120 lines resolution or better). * * * NOTE: ANY AND ALL SPECIAL CONDITIONS AND SPECIFICATIONS ATTACHED HERETO WHICH VARY FROM THESE GENERAL CONDITIONS SHALL HAVE PRECEDENCE. . . . And, the ITB contained the following special conditions: LITERATURE DISTRIBUTION Successful bidder shall be required to furnish State agencies and political subdivisions with price lists, (printed) descriptive literature and technical data service information for items awarded. Bidders are urged to reserve approximately 1,500 price lists for this purpose. * * * PRICE DISCOUNT SCHEDULE Bidders of brand name microcomputer systems and optional components, shall complete the price discount schedule in the format provided. The following information will be included: a copy of the Manufacturer's Suggested Retail current Price list (current Price list is the latest price list in effect between the "date mailed" as shown on the ITB and the Bid opening date), number and date, bid discount for microcomputer configured systems, bid discount for optional components not purchased as part of a microcomputer system. Separate bid discounts for government and education are requested, however education bid discounts must be greater than government bid discounts, for a separate award to be made. (See EVALUATION and AWARD paragraph, page 16, for evaluation and award criteria.) PRICING The discount offered and awarded shall remain firm for any product placed on the contract resulting from this bid, or for products added to the contract at a later date through revision to the contract. * * * MANUFACTURER'S SUGGESTED RETAIL PRICE CHANGES When the list prices for products on the contract are reduced, the contractor shall submit new prices which reflect the same percentage off list price as was originally bid. When the contractor cannot continue to offer products at the contracted discount due to a general change in the manufacturer's pricing policy or other valid reasons, the State shall determine whether to allow the product line to remain on contract. The contractor shall provide to the Division of Purchasing, documentation to justify why the product line can no longer be offered at the contracted discount. The determination to allow the product line to remain on contract and under what conditions shall be at the discretion of the Division of Purchasing in the best interest of the State. In no instance may the new pricing result in an increase in net prices. Reductions in price shall be effective upon receipt of written notification to the Division of Purchasing and shall remain in effect for the balance of the contract term, unless further reduced by the contractor. In the event that the contractor announces a price reduction on any equipment listed on the contract prior to the purchaser's acceptance of said equipment, such price reduction shall be made available to the purchaser. * * * FORMAT FOR SUBMISSION OF BID PRICE SHEETS Referenced Price Lists, Ordering Instructions, Dealer Lists and Locations or Service Locations, required in this bid, must be submitted in hard copy with the bid package. Also provide with the bid package or within ten (10) working days after notification the identical information, in WordPerfect 5.1 format, portrait orientation with minimum 0.5 inch margins, Courier 10 pitch font, in hard copy and on 3.5 or 5.25 diskette media. Failure to comply will result in your contract being withheld from distribution. EVALUATION AND AWARD Bids will be evaluated as follows: Government and Education bids will be evaluated and awarded separately. The percentage (%) discount bid for each brand name, for each category (configured microcomputer systems and optional components), will be multiplied by an applicable usage factor, (the projected percentage purchases from each category) to be stated at the time of the bid opening, which will yield a weighted discount. The weighted discounts of the two categories will be added to yield the total weighted discount on which an award will be made. Awards will be made separately for Government, and Education (if applicable), to the responsive bidder offering the greatest total weighted discount. EVALUATION FORMULA (Micro (%) discount (x) usage factor) (+) plus (option components (%) discount (x) usage factor) = total evaluation (%) discount. * * * MICROCOMPUTERS AND OPTIONAL COMPONENTS PRICE DISCOUNT SCHEDULE GOVERNMENT EDUCATION Manufacturers MICROS OPTIONS MICROS OPTIONS Brand Name Catalog Date %DISCOUNT %DISCOUNT %DISCOUNT %DISCOUNT HEWLETT PACKARD 1(A) (B) (C) -NA- (D) -NA- NCR 2(A) (B) (C) (D) ZENITH 3(A) (B) (C) (D) MSPR: Manufacturer's Suggested Retail Price from which discounts will be taken. Micros: Percentage discount for microcomputer systems. Options: Percentage discount for optional components when purchased Separately, not as a part of a microcomputer system. Responses to the ITB The price discount schedules submitted on behalf on NDP and Waldec were virtually identical except for the discounts offered. Each specified the HP catalog of October 1992 as containing the manufacturer's suggested retail price for personal computer products and the HP catalog of November 1992 for peripheral products from which percentage discounts would be taken for microcomputer systems and optional components. As to discounts, NDP bid 32.02% for microcomputer systems and 38.05% for optional components, and Waldec bid 25.90% for microcomputer systems and 39.92% for optional components. Following the bid opening, at which the bids were announced and tabulated, the bid documents were transported to the office of a Department purchasing specialist charged with the responsibility of evaluating the bids. Applying the evaluation criteria established by the ITB, NDP was calculated to be the apparent low bidder; however, because NDP's bid failed to include the MSRP lists, when examined by the specialist, it was declared non-responsive. The bid of Waldec, which scored second under the evaluation criteria, was found to include copies of the MSRP list referenced in its price discount schedule and was declared the low responsive bidder. The Manufacturer's Suggested Retail Price (MSRP) List With regard to Hewlett Packard, and ostensibly all manufacturers, there is only one manufacturer's suggested retail price (MSRP) at any given time. That price may be established by reference to the MSRP list published by the company, as well as any addenda that may be pertinent. Hewlett Packard publishes separate MSRP lists for personal computer products and peripheral products at 90 day intervals and updates those lists on a monthly basis, as needed, through addenda, its "In Touch" publication, and "The Hewlett-Packard News Network." Each method used by HP to update its quarterly MSRP list is expected to provide identical information, and each is considered an addendum to its quarterly MSRP list from which the current MSRP can be derived. 2/ Here, the proof demonstrates that the "Manufacturer's Suggested Retail current Price list (current Price list is the latest price list in effect between the `date mailed' as shown on the ITB and the Bid opening date)" which the ITB directed should be included with the bid, was the HP quarterly MSRP list of October 1992 for personal computer products, the HP quarterly MSRP list of November 1992 for peripheral products, and an addendum effective December 1, 1992 (whether by addenda, "In Touch" or "The Hewlett-Packard News Network"), for personal computer products. NDP contends that included with its bid were copies of the October 1992 and November 1992 MSRP lists for personal computer products and peripheral products, respectively, and a copy of the December 1, 1992, "In Touch" newsletter. The parties have stipulated that if NDP's bid included such documents it was responsive to the ITB. Compared with NDP's averred response, Waldec's bid included a copy of the October 1992 MSRP list for personal computer products and the November 1992 MSRP list for peripheral products, but no addenda to reflect price changes affecting personal computer products through the bid opening date. Notwithstanding, the Department has found Waldec's bid responsive. Such finding, discussed more fully infra, mitigates against the Department's contention that any failure to include MSRP lists with the bid constitutes a material deviation. The missing price lists To support its position that its bid included the HP MSRP lists, NDP offered, inter alia, the testimony of Carol Hutchins, Kyle Peterson, and Jacqueline Smith. Ms. Hutchins is the government sales manager for NDP at its offices in Clearwater, Florida, and prepared NDP's bid. Mr. Peterson is the general manager of the Tallahassee branch office of NDP, and was responsible for delivering NDP's bid to the Department. Ms. Smith is employed in the Tallahassee branch office, and is engaged in government sales on behalf of NDP. The bid prepared on behalf of NDP by Ms. Hutchins ostensibly included a copy of HP's MSRP list of October 1992 for personal computer products, HP's MSRP list of November 1992 for peripheral products, and HP's "In Touch" newsletter for December 1992. This bid package, along with two blank copies of the price discount schedule (page 23 of the ITB) in case NDP decided to alter the discount it initially established in its bid before submittal, was shipped via Federal Express to Mr. Peterson at NDP's Tallahassee branch office. According to Mr. Peterson, the package was delivered to his office at or about 11:00 a.m., December 16, 1992, and placed on his desk. When he opened it, Mr. Peterson observed NDP's response to the ITB, as well as the MSRP lists heretofore discussed. Notwithstanding that the role of the Tallahassee branch was "very minor . . ., to act as courier for the bid and ensure that it was delivered in a timely manner," the bid package was disassembled at least twice within that office. First, Ms. Smith thought it would be a good idea to make a copy of the bid for their files, so she made a copy of NDP's bid, but not the MSRP lists. According to Ms. Smith, after making the copy she replaced the original bid on top of the MSRP lists on Mr. Peterson's desk. Second, NDP elected to change the discount rate it initially proposed so a new price discount schedule was typed by Mr. Peterson's staff, and he exchanged the new page for the old page in the bid document. Thereafter, according to Mr. Peterson, he inserted the bid package, including the price lists, into an envelope which he sealed and delivered to the Department shortly before the bid opening, to-wit: at 1:49 p.m., December 16, 1992. Both Mr. Peterson and Ms. Smith attended the bid opening and, at hearing, related what they recalled of the scene and procedures utilized. Regarding significant matters, their recitation of what occurred bore little resemblance to what actually transpired. For example, Mr. Peterson described the tenor of what occurred during the bid opening as one of confusion, when the more compelling proof demonstrates the contrary. Indeed, the two purchasing agents and the purchasing specialist who conducted the opening did so with precision and in accord with Department policy. Mr. Peterson, likewise, described the table upon which the bids were opened as being upon a raised platform when in fact it was not, and recalled that the purchasing agent who opened the bids separated the envelopes from the bid packages before passing the bid package to the purchasing specialist to announce the bid, which she did not. Finally, notwithstanding the limited nature of their involvement with the bid, as well as the fact that each was taking notes as each bid was announced, Mr. Peterson and Ms. Smith aver that they saw the price lists attached to NDP's bid when it was announced. As for Mr. Peterson, he averred that he noticed "stapled" booklets included with NDP's bid which could only have been the price lists. Ms. Smith recalls that the thickness of the bid package she observed at opening compels the conclusion that the price lists were attached. Given the circumstances, the testimony of Mr. Peterson and Ms. Smith regarding their observations at bid opening, and having specific recall regarding the presence of "stapled" booklets or the thickness of the package, is less than compelling. Regarding the bid opening procedure, the proof demonstrates that it was carefully and precisely run, consistent with Department policy. The first purchasing agent was seated on the left of the bid opening table, the purchasing specialist was seated in the center, and the second purchasing agent was seated to the right. The first agent had the sealed bids stacked alphabetically in front of her, opened one at a time, removed the contents from the envelope, placed the contents on top of the envelope and secured them with a rubber band, and passed the bid package to the specialist. The specialist opened the bid to the price discount schedule (page 23 of the ITB), read off the discount bid, and laid the bid package upside down to his right. Continuing through the responses, each bid or no bid was announced and placed on the appropriate stack to his right. The second agent recorded the bids on the bid tabulation sheet, as announced, and never touched the bid packages. Following the bid opening, the first agent retrieved the bids and, as to each bid, cut the date stamp off the envelope and stapled it to the first page of the bid form and, if the bid contained a form requesting notice of the bid result and a check for such service, removed the form and check and stapled them together for delivery to another employee to process. 3/ The bids, each separately secured by a rubber band, were then stacked and secured by another rubber band and taken to the office of another purchasing specialist for evaluation. When the agent took the bids from the bid room, no papers were left behind. The specialist who evaluated the bids found them in his office, as bound by the agent, between 3:15 p.m. and 3:30 p.m. that day, or approximately 45 minutes to one hour after the bid opening concluded. The specialist went through each bid separately to ascertain its responsiveness to the conditions of the ITB, and calculated the apparent low bidder by application of the evaluation formula contained in the ITB. Upon evaluation of NDP's bid, the specialist discovered that it did not include the price lists required by the ITB, and concluded that NDP's bid was, therefore, non-responsive. Considering the proof, it is most unlikely that the price lists that were to be included in NDP's bid were misplaced by the Department. Rather, it is more likely that such price lists were not included with NDP's bid, when it was delivered to the Department, because of an oversight at NDP's Tallahassee branch office. While the proof fails to support the conclusion that NDP's bid included the HP price lists when delivered to the Department, such failure is not dispositive of NDP's protest where, as here, such failing was a minor irregularity. Minor irregularity Rule 60A-1.001(31), Florida Administrative Code, defines the term "minor irregularity" as" A variation from the invitation to bid . . . terms and conditions which does not affect the price of the bid . . ., or give the bidder . . . an advantage or benefit not enjoyed by other bidders . . ., or does not adversely impact the interests of the agency. Here, the Department rejected NDP's bid based on a uniform policy which it has established that the omission of a price list from any bid can never constitute a minor irregularity and always renders a bid non-responsive. The justification for such policy was stated as follows: . . . The purpose of requiring price lists is to insure that the vendor is bidding on the material that he has offered, that he has been certified by the manufacturer to act in their behalf. It also gives [the Department] the information by which [the Department] can provide price lists to agencies so the using agencies know the price lists from which they expect the discounts. Tr. 247. . . . A bidder can obtain a competitive advantage over competitors by failing to submit price lists with its bid because the bidder would then have the ability to disqualify its own bid in the event their quotation was out of line with the other bidders. Tr. 246. Also, by failing to submit a price list, a vendor may attempt to rely on price lists reflecting higher prices for the ultimate contract with the state. Tr. 268. [Department proposed findings of fact 21 and 22.] While the Department's concerns or rationale may be legitimate, depending on the facts of the case, they do not rationally support a uniform policy that a failure to include price lists with any bid can never be a minor irregularity. Stated differently, to explicate application of its policy in this case requires that the Department demonstrate that the concerns underlying its policy are existent in the instant bid. Here, at least with regard to NDP's bid, the proof fails to support the Department's policy. Of import to the resolution of the issue in this case are the provisions of the ITB regarding the price discount schedule, as follows: Bidders of brand name microcomputer systems and optional components, shall complete the price discount schedule in the format provided. The following information will be included: a copy of the Manufacturer's Suggested Retail current Price list (current Price list is the latest price list in effect between the "date mailed" as shown on the ITB and the Bid opening date), number and date, bid discount for microcomputer configured systems, bid discount for optional components not purchased as part of a microcomputer system. NDP's bid, consistent with Waldec's bid, specified the Hewlett Packard price lists of October 1992 and November 1992 as being the "current Price list" upon which it based its bid. Such lists are readily identifiable, and permitting NDP to provide such price lists after bid opening would not affect the price of its bid, give it any advantage or benefit not enjoyed by other bidders or adversely affect the interests of the agency. Also of import to the resolution of the issue in this case is the proof which demonstrates that during the course of its evaluation the Department did not know what the current price lists were, relied upon the bidders to comply with the requirement to attach current price lists, accepted Waldec's bid as responsive although it failed to include the December 1992 addendum, and proposed to rely on the manufacturer to resolve any disputes regarding discrepancies between lists. Such proof demonstrates that the price lists were a mere technicality, and that the provisions of the ITB, which specified the basis on which the bids were predicated as the manufacturers "current" price list, defined as "the latest price list in effect between the `date mailed' as shown on the ITB and the Bid opening date," were sufficiently precise to allow the parties to confidently contract. Here, none of the announced concerns of the Department, as set forth in paragraph 24 supra, have any applicability to NDP's bid. NDP's response to the price discount schedule was sufficiently precise to identify the price lists on which it was bidding (the material being offered), it submitted the required manufacturer's certificate demonstrating NDP was authorized to represent Hewlett-Packard (page 21 of the ITB), the provisions of the ITB required the successful bidder to furnish the state agencies and political subdivisions with price lists (page 10 of the ITB) after award, and NDP's identification of the price lists in the price discount schedule would preclude it from altering its bid after bid opening. In sum, NDP's failure to include the price lists with its bid was a minor irregularity that did not affect the price of the bid, give NDP an advantage or benefit not enjoyed by other bidders, or adversely affect the interests of the agency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding NDP's bid responsive, and awarding the subject bid to NDP as the lowest responsive bidder. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993. WILLIAM J. KENDRICK 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 31st day of March 1993.
Findings Of Fact Romie Huntsinger has been an auctioneer since 1970, and was licensed by the State of Florida with license number AU- 0000307 on March 7, 1988, shortly after the profession became regulated by the state. His license has remained current and in good standing since that date. On November 29, 1988, Huntsinger was conducting an auction as principal auctioneer in Orlando, Florida. A friend of his, James Poe, was standing near him when he received an irresistible call of nature (in his words). Huntsinger thrust the microphone at Poe and asked him to sell the next few items (call the bids). There is conflicting testimony as to whether Huntsinger was gone no more than 15 minutes or at least 45 minutes, but it is undisputed that Poe was calling the bids in his absence. James Poe was an auctioneer for many years and had his own business, but when the practice of auctioneering became regulated in 1987, he did not apply for a license. Time is of the essence in the conduct of an auction as each seller is allotted limited minutes for his lot to be offered. It was proper that Huntsinger delegate a substitute so that he could leave the microphone, but there were at least two other licensed auctioneers in the room.
Recommendation Based on the foregoing, including the disciplinary guidelines in Rule 21BB- 1.017, FAC, it is hereby, RECOMMENDED: That the Board of Aucti6neers issue its Final order finding that Romie Huntsinger violated Section 468.389(1)(j), F.S. and Rule 21BB 5.001(1), FAC, and imposing a reprimand and fine of $150.00. DONE and RECOMMENDED this 28th day of February, 1990, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1990. COPIES FURNISHED: Cynthia Gelmine, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Romie L. Huntsinger 3119 Illinworth Avenue Orlando, FL 32806 Kenneth D. Easley General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Ms. LouElla Cook Executive Director Dept. of Professional Regulation Board of Auctioneers 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792
The Issue The issue to be determined in this proceeding is whether Respondents Wilson and Son Sales, Inc. (Wilson), and Ohio Casualty Insurance Company, as surety, are indebted to Petitioner for certain Florida-grown agricultural products.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a producer of several vegetable crops in Hardee County. Wilson is a dealer in agricultural products. More specifically, Wilson operates an agricultural broker business in Plant City. Wilson’s surety is Ohio Casualty Insurance Company. Although Wilson has written contracts with some producers, Wilson does not have written contracts with all producers. In the absence of a contract, the terms of Wilson’s broker services are almost always the same; that is, Wilson gets a commission of 10 percent on the sale of the produce and $.35 per box for palletizing and pre-cooling the produce, in return for which Wilson makes a reasonable and good faith effort to sell Petitioner’s produce for the best price. Petitioner contacted Wilson in January 2007, about bringing flat beans to Wilson to sell. Wilson expressed interest and informed Petitioner about Wilson’s standards terms as described above. These terms were agreeable to Petitioner and he brought the beans to Wilson later that month. Although Petitioner and Wilson had no written contract, the parties’ mutual understanding of the terms of their agreement created an enforceable oral contract. Wilson sold Petitioner’s beans and no dispute arose from this first transaction. The parties’ subsequent transactions for other produce were undertaken pursuant to the same oral contract terms. Because Wilson works on a commission basis, it is generally in Wilson’s self-interest to sell growers’ produce for the best price. Petitioner contacted Robert Wilson, Wilson’s owner, by telephone in February 2007, and informed Wilson of his plans to grow wax beans and “hard squash.” It was not stated in the record whether all three varieties of hard squash later grown by Petitioner, butternut squash, acorn squash, and spaghetti squash, were discussed by Petitioner and Robert Wilson during their February 2007 telephone conversation. A major dispute in the case was whether the parties’ February discussion about hard squash created some obligation on the part of Wilson beyond the oral contract terms described above. Petitioner claims that Wilson encouraged him to plant the squash and that Petitioner would not have planted the squash otherwise. Petitioner never made clear, however, what additional obligation was created by Robert Wilson’s encouragement beyond the obligation to accept delivery of and make good faith efforts to sell Petitioner’s squash at the best price. Petitioner did not use the word “guarantee,” but his claim seems to be that Wilson became obligated to guarantee that the squash would be sold for a price close to the price published in the Columbia (South Carolina) Market Report, a periodic publication of produce prices. Such an obligation on the part of a broker is contrary to the general practice in the trade. Petitioner’s evidence was insufficient to prove more than that Robert Wilson thought he could sell Petitioner’s squash and had a genuine interest in acting as broker for Petitioner’s squash. The evidence was insufficient to prove the existence of a contractual guarantee that Wilson would obtain a certain price for Petitioner’s hard squash or do more than was promised with regard to the beans that Wilson had sold for Petitioner; that is, to try to sell the produce for the best price. When Petitioner’s wax beans were picked in late April, he brought them to Wilson to sell. No dispute arose regarding the sale of the wax beans. Petitioner brought squash to Wilson in five deliveries between May 12 and May 29, 2007. Petitioner said that on one of these deliveries, he had to leave the boxed squash in the parking lot of Wilson’s facility because there was so much cantaloupe that had been delivered ahead of him. Petitioner says he was told by a Wilson employee that the squash would not be put in the cooler. Petitioner thinks Wilson was more interested in moving the cantaloupe than the hard squash. Petitioner thinks his squash was not put in the cooler or was put in too late. Wilson denies that Petitioner’s squash was not put into the cooler or was put in late. Robert Wilson claims that he made many calls in an effort to sell Petitioner’s squash, but he could not find interested buyers for all of the squash because (1) the demand for hard squash dried up, (2) some of Petitioner’s squash was of low quality, and (3) the squash began to spoil. Petitioner denied these allegations. Petitioner received invoices and other paperwork from Wilson showing that Wilson sold Petitioner’s first delivery of 490 boxes of acorn squash for $10.18 per box. It sold Petitioner’s second delivery of 519 boxes of acorn squash for $2.08 per box. For Petitioner’s third delivery of 110 boxes of acorn squash and 240 boxes of spaghetti squash, Wilson “dumped” the acorn squash by giving it to away for free to the Society of St. Andrews food bank, and sold the spaghetti squash for $5.15 per box. Wilson sold petitioner’s fourth delivery of 279 boxes of butternut squash for $.55 per box.1 Competent substantial evidence in the record established that it is a regular occurrence for agricultural products awaiting sale to decay and become unsellable, and for the broker to dump the products in a landfill or give the products to a charitable organization and then provide the grower a receipt for tax deduction purposes. It was undisputed that Wilson did not notify Petitioner before disposing of his squash. Petitioner claims he should have been notified by Wilson if the squash was beginning to spoil. However, Petitioner did not prove that prior notification was a term of their oral contract. Petitioner claims further that the federal Perishable Agricultural Commodities Act required Wilson to notify Petitioner before dumping the squash and to have the squash inspected to determine whether, in fact, it was spoiled. As discussed in the Conclusions of Law below, this federal law is not applicable. Competent substantial evidence in the record established that the market for agricultural products fluctuates and, at times, can fluctuate rapidly. For hard squash, which is normally prepared in an oven, the market demand can drop dramatically due to the onset of warm weather simply because people tend not to cook hard squash dishes in warm weather. Petitioner’s squash was being marketed in May, which means the beginning of warm weather for most areas of the United States. This fact supports Wilson’s claim that the demand for hard squash had been good, but fell rapidly just at the time Wilson was trying to sell Petitioner’s squash. The problem with the claims made by Petitioner in this case is simply one of insufficient proof. It is not enough for Petitioner to offer theories about what he thinks happened or to raise questions which are not fully answered. Petitioner had no proof that his squash was not put in Wilson’s cooler, that his squash did not begin to decay, that the demand for hard squash did not fall rapidly, that Wilson did not make reasonable efforts to sell the squash, that Wilson had willing buyers for Petitioner’s squash at a better price, or that Wilson sold squash from other growers at a better price. Petitioner’s evidence for his claims consisted primarily of market price reports that he contends show the approximate price Wilson should have gotten for the hard squash. Market price reports have some relevance to the issues in this case, but competent evidence was presented that the prices quoted in the publications are not always reliable to indicate the price a grower can expect to get on any given day, because there are factors that cause the published market price to be an inflated price (and applicable to the highest grade of produce) and because the market price can change rapidly with a change in demand for the product. The oral contract between Petitioner and Wilson required Wilson to try to get the best price for Petitioner’s squash, not some particular price appearing in a particular market price report. Petitioner did not show that Wilson got a better price for hard squash of equal quality, or that other brokers in the area got a better price for hard squash of equal quality at the times relevant to this case. Petitioner’s evidence was insufficient to prove that Wilson did not make a reasonable and good faith effort to sell Petitioner’s squash at the best price.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order dismissing Petitioner’s amended claim. DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 7th day of March, 2008.
The Issue Whether Respondents committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Chapters 455 and 475, Florida Statutes, and Title 61J2, Florida Administrative Code. At all times pertinent to this proceeding, Respondent, Gerry Sullivan & Associates Realty, Inc., was a corporation registered as a real estate broker in the State of Florida, having been issued license number 0215569 in accordance with Chapter 475, Florida Statutes. The last license issued for that corporation was at the address of 7169 West Broward Boulevard, Plantation, Florida. At all times pertinent to this proceeding, Respondent, Geraldine R. Sullivan, was a licensed real estate broker in the State of Florida, having been issued license number 0086238 in accordance with Chapter 475, Florida Statutes. At all times pertinent to this proceeding, Respondent, Geraldine R. Sullivan, was the qualifying broker and office manager of the corporate Respondent. At all times pertinent to this proceeding, Jim Sullivan and Pamela Sullivan were real estate salespersons in the State of Florida and employed by the corporate Respondent. Jim Sullivan is the son of Geraldine R. Sullivan and the husband of Pamela Sullivan. On June 16, 1997, Elaine P. Martin entered into a listing agreement with the corporate Respondent to sell her condominium for the price of $32,900. The listing agreement provided for the seller (Ms. Martin) to pay a brokerage commission of 6% that would be reduced to 5% if Jim Sullivan or Pamela Sullivan found the buyer without the involvement of another broker. The listing agreement also provided that Ms. Martin would pay a processing fee in the amount of $150.1 The listing agreement did not refer to a transaction fee.2 Ms. Martin did not agree to pay any fees other than the commission and the processing fee. In 1996, the corporate Respondent began a practice of charging sellers in certain transactions a fee, referred to as a transaction fee, that was in addition to the processing fee and the commission. The transaction fee was used by the salesperson to pay the salesperson's "facilitator," a person employed by the salesperson to run errands to facilitate the closing of the transaction. Examples of the type errands performed by the facilitator included meeting persons at the property to perform inspections and delivering documents. The practice of charging a transaction fee was not uncommon in Broward County, but it was not standard practice. Whether a particular seller would be charged a transaction fee depended, in part, on the listing salesperson. Typically, if a salesperson employed by the corporate Respondent did not us a facilitator, no transaction fee would be charged. The minutes of the Florida Real Estate Commission for July 16-17, 1996, contain the following entry: It was decided that as long as there is disclosure to all parties involved, the transaction fees indicated on closing statements is not a violation of F.S. 475. The customary practice of the corporate Respondent in June of 1997 was for its salesperson to complete a "net sheet" at the time the listing agreement is executed. The "net sheet" is a good faith estimate of the seller's expenses and reflects the estimated amount the seller will net from the transaction. The evidence established that Respondent, Geraldine R. Sullivan, and Pamela Sullivan could not locate in the Martin file a net sheet was prepared on or about the time Ms. Martin executed the listing agreement on June 16, 1997. From that evidence, and from the testimony of Ms. Martin, it is found that Jim Sullivan did not complete a net sheet when he and Ms. Martin executed the listing agreement. The listing agreement created a principal/agent relationship between Ms. Martin, as the seller, and the corporate Respondent, as the agent. At all times pertinent to this proceeding, the corporate Respondent and Geraldine R. Sullivan, as the qualifying broker of the corporate Respondent, were the agents of Ms. Martin and owed her the fiduciary duties of an agent. In connection with the subject listing agreement, Ms. Martin executed an Agency Disclosure Statement which set forth the fiduciary duties owed by the agent to the principal, in pertinent part, as being the ". . . fiduciary duties of loyalty, confidentiality, obedience, full disclosure, accounting and the duty to use skill, care and diligence." In addition, the statement set forth that the agent owed the duty of honesty and fair dealing.3 A buyer working through another real estate broker made an offer to purchase the Martin property for the sum of $30,000. The offer, dated June 22, 1997, was presented to Ms. Martin by Pamela Sullivan. Because another real estate broker was involved, the real estate commission was based on 6% of the sales price. On June 22, 1997, Pamela Sullivan discussed the offer with Ms. Martin by telephone and informed her, for the first time, of the transaction fee. Later that day, Pamela Sullivan and Ms. Martin met and Pamela Sullivan prepared a "net sheet" that reflected the seller's estimated closing costs. The transaction fee in the amount of $3004 was reflected on the net sheet as an expense of the seller. As of June 22, 1997, Pamela Sullivan knew or should have known that the file on the Martin transaction maintained by her office did not contain a net sheet that was executed at the same time the listing agreement was executed. Prior to signing the contract or the net sheet on June 22, 1997, Ms. Martin placed a question mark next to the line on which the transaction fee was disclosed. Ms. Martin questioned the charge because she did not understand what was being done to earn that fee. Ms. Martin did not accept the explanations Pamela Sullivan gave for the transaction fee. Ms. Martin thereafter had Pamela Sullivan insert the following as a special condition of the contract: The seller reserves the right to have her attorney review the contract at his earliest opportunity. After the special condition was signed, Ms. Martin signed the contract and the net sheet. The net sheet was intended to be informational. By signing the net sheet, Ms. Martin did not intend to agree to pay the $300 transaction fee. Ms. Martin did not agree in writing or verbally to pay the transaction fee. Between June 22 and June 25, 1997, Pamela Sullivan, on behalf of the corporate Respondent, reduced the amount of the claimed transaction fee from $300 to $200. Following the execution of the Sales Contract, Ms. Martin had her attorney review the contract and the net sheet. Ms. Martin informed her attorney by memo dated June 25, 1997, in pertinent part, as follows: . . . We disputed the Transaction Fee of $300.00 and Century 21 lowered it to $200. We asked Pam Sullivan for a break down (sic) on the $200.00 cost. She refused to provide any; stated it was the cost of doing business. Since the housing prices in Broward County have not increased, they charge this extra fee along with their normal commission. . . . Ms. Martin sent a copy of her memo to Pamela Sullivan. Ms. Martin's attorney accepted the sales contract without any changes and informed her that he would address the issue of the transaction fee at the time of the closing. On the day of the closing, Ms. Martin's attorney telephoned Respondent, Geraldine R. Sullivan, to discuss the transaction fee. Geraldine R. Sullivan would not agree to waive the transaction fee after she learned that there was a signed net sheet. She did not realize that there was no net sheet prepared when the listing agreement was first executed. This was the only direct dealing Respondent, Geraldine R. Sullivan, had with this transaction. Between June 25, 1997, the date of Ms. Martin's memo, and July 7, 1997, the date of the closing, neither Ms. Martin nor her attorney voiced additional objection to the transaction fee.5 The transaction closed on July 7, 1997. The sum of $200, representing the amount of the disputed transaction fee, was placed in escrow by the closing agent, where it remained at the time of the formal hearing. All other fees and costs were paid at closing, including a brokerage commission of $1,800 (which was split with the realtor representing the buyer) and a processing fee of $150 (which was retained by the corporate Respondent).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered that finds the corporate Respondent guilty of violating Section 475.25(1)(b), Florida Statutes, and finds Geraldine R. Sullivan not guilty of that charge. It is further RECOMMENDED that the corporate Respondent be reprimanded and fined in the amount of $1,000. DONE AND ENTERED this 4th day of August, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1998
The Issue Whether the Department of General Services should disqualify Savin Corporation's bid for failure to submit a separate supply price list.
Findings Of Fact On April 26, 1984, DGS issued ITB 402-600-38-B entitled "Walk-up Convenience Copiers, Plain Bond Paper" to establish a state contract for the purchase of walk-up convenience copiers. The ITB contains general and special conditions and specifications. The specifications provide for four types and twelve classes of copiers with four acquisition plans -- one-year lease, two- year lease, three-year lease, and outright purchase. Vendors may submit a bid for each type, class, and acquisition plan. Savin submitted a bid for all acquisition plans in Type I, Classes 1-10; Type II, Classes 1-3; Type III, Classes 1-10; and Type IV, Classes 1-10. /4 The special conditions of the ITB require that a price sheet (page 14 of the ITB) be submitted for each machine bid. The price sheets are used to evaluate the bids, and contracts are awarded in each category to the bidder submitting the lowest cost per copy. The cost per copy is determined by a cost formula set for in the special conditions which consist of three factors: machine cost, labor cost, and supply cost. The following special conditions of the Invitation To Bid relates to supply costs: C) SUPPLY COST- The bidder shall compute supply costs on the Manufacturer's Brand. If there is an existing state contract for supplies for the manufacturer's brand equipment; the state contract price may be substituted. Supply costs will be rounded to six (6) decimal points. All other costs will also be rounded off to six (6) decimal points. The volume price used by the vendor to compute supply cost shall be based on the monthly median volume of the type and class being bid. Supply cost submitted shall be firm for the contract period, except for paper, and all supply costs shall be current market price, verifiable. The price list shall also include the manufacturer's standard test pattern as the original document. Vendor must complete the supply price list (See page 13) and include it with his bid and must submit a separate supply price list reflecting volume discount prices to substantiate that correct price volumes were used unless state contract prices were used. A contract award may include supplies during the term of this contract if deemed in the best interest of the State. By electing to substitute state contract supplies, the vendor is certifying that his equipment, using said supplies, will meet all performance requirements of this bid and of the equipment manufacturer. Failure to include the supply price lists and manufacturer's guaranteed yields with your bid shall automatically disqualify the bid. NOTE: In the event of a variance between supply prices listed on the bid sheet and the supply price list submitted with the bid, the supply price list prices shall prevail, and the bidder's cost per copy will be adjusted accordingly. NOTE: All cost formulas will be verified by the Division of Purchasing and errors in extension will be corrected. In the event incorrect supply costs volumes are used by a bidder, the Division of Purchasing will adjust these costs to the median volume range. The above quoted portion of the ITB makes it absolutely clear that each vendor had to submit two supply price lists: the supply price list set forth on page 13 and a separate supply price list, reflecting quantity discounts which was to be used to "substantiate that correct price volumes were used." Further, it was specifically stated that the failure to include both supply price lists with the bid would result in the bid being automatically disqualified. The page 13 supply price list consists of a list of various supplies and two columns for the bidder to complete entitled "Net Delivered Price (per carton)" and "Manufacturer's Guaranteed Yield". Page 13 was included in the ITB to cure a problem the Department had in the 1983-84 contract year with the manufacturer's guaranteed yield. A note at the bottom of page 13 reminds the bidder that a separate supply price list must be submitted with the bid. It states: NOTE: Bidders must submit their quantity discount prices for supplies on a separate sheet for verification and inclusion in the contract should the State elect to award supplies. The separate supply price list reflecting quantity discounts was required to verify the prices submitted by the bidder on pages 13 and 14 and to prevent the practice of low-balling". "Low-balling" occurs when a bidder uses a large quantity supply cost to determine the cost per copy on a low volume machine. This results in an artificially low cost per copy and gives the "low- balling" bidder an advantage over other bidders who use the correct supply price based on the median volume of the machine being bid. To verify that the proper cost per copy is submitted the prices on the separate supply price list are compared to the prices on the bid sheet. If there is a conflict, the prices on the separate supply price list prevail, and the prices on the bid sheet and on page 13 are adjusted to conform to the prices on the separate supply sheet. Prior to the 1984 Invitation to Bid Savin historically offered the state volume discount pricing for supplies. However, for the 1984-85 Invitation to Bid Savin decided to offer set pricing for supplies rather than volume discount pricing. Under set pricing the price of the supply item remains the same regardless of the quantity purchased. By offering a set price for supplies, at the lowest published discount pricing level offered to the Federal government, Savin felt it would gain a competitive advantage in Florida and other states that had competitive bidding. In states where competitive bidding was not used Savin did not offer set pricing but used published quantity discount pricing. In response to the 1984 Invitation to Bid, Savin completed the Supply Price List on page 13 and the bid sheet on page 14 for each machine bid. However, Savin did not submit the separate supply price list for each bid as required by the note at the bottom of page 13 and the underlined portion of the special conditions relating to supply cost. Because the separate supply price lists were not submitted with the bids, the Department determined that Savin's bids were unresponsive. The Department also disqualified three or four other vendors, including Royal, Panasonic, and Southern Copy Products, because they did not submit the separate supply price lists. Savin did not submit the separate supply price list because it interpreted the terms and conditions of the ITB as requiring a separate supply price list only when quantity discount pricing was being offered. Because Savin was offering set pricing, it did not consider that the separate supply price list was necessary. However, the only way the Department could determine whether a vendor was offering set pricing or quantity discount pricing was by referring to the separate supply price list. Several other vendors that offered set pricing including Canon, Mita Copy Star America, Pitney Bowes, Monroe and A. B. Dick, submitted separate supply price lists with their bids which indicated that set pricing was being offered. The separate supply price list not only indicated whether quantity discount pricing or set pricing was being offered, as stated above, it was used by the Department to verify the prices submitted on the bid sheets and on page 13. In one case where the bidder offered set pricing, the supply prices for toner and developer listed on the bid sheets and on page 13 differed from the prices on the separate supply price list, and the prices on the bid sheets and page 13 were adjusted to conform with the prices on the separate supply price list. Therefore, the inclusion of the separate supply price list was not necessary only when discount pricing was offered, it was necessary when set pricing was offered. The separate supply price list established that set pricing was being offered; it established the price at which the bidder must sell the supplies; and it was used to verify the prices on the bid sheet and page 13. /5 Therefore, the omission of the separate supply price list from the response to the ITB cannot be considered a minor irregularity which may be waived. Although a separate supply price list is required by the ITB, the list does not have to follow any particular format. The separate list sufficiently indicates that set pricing is being offered if only one price is quoted for a given supply. If varying prices are offered for a given supply, based on the amount ordered, then quantity discount pricing is being offered. Many of the proposed findings of fact submitted by the Petitioner have been rejected in whole or in part. The majority have been rejected by way of making contrary findings of fact as set forth above. Others have not been addressed in the findings of fact because they are conclusions of law or argument on the issue. However, other proposed findings are rejected for the reasons stated in the subparagraphs below: Paragraphs 17 and 18 are rejected as irrelevant, immaterial and not supported by competent substantial evidence. When Mr. Hittinger was asked whether he assumed that Savin was offering quantity discount pricing, he answered "I didn't assume. I didn't make any assumptions." (T-266). Mrs. Hayes stated: "I am afraid on a bid situation, we can't assume what their pricing would have been if they had submitted it." (T-245) Mr. Nee did indicate that the disqualification of Savin did not make any sense, but explained that statement by stating: "The phrase that didn't make any sense was talking about Savin's failure to submit a quantity discount price list... Because Savin had always done it in the past, and they -- they never left -- if we asked them to cross every T, they crossed every T and it didn't make any sense that something apparently looked to be omitted". Paragraph 15 is rejected as not supported by competent substantial evidence. The evidence indicates that the primary purpose of page 13 was not to establish the price at which vendors would be obligated to sell their supplies, but was included in the ITB for the submission of manufacturer's guaranteed yields (T-144, T-146; T-158-16O, T-166-167, T-242). Further, the witnesses who testified that the vendor would be bound by the prices on page 13 all qualified their answers. In response to the question of whether the bidder would be bound by the prices on page 13, Mrs. Hayes responded, "...if he did submit a substantiating document that he is offering a set price, and that set price agrees with the price that is on page 13, yes." (T-242); Mr. Hittinger responded: "If he receives an award, yes"; "If he had a responsive bid" (T- 264); and "No, in itself it does not. It would have to have a supporting verification sheet to complete that offer." (T-268); Mr. Barker responded, "If they are correct," (T-163). Virtually all the witnesses testified that it was the separate supply price list that established the prices by which the vendors would be bound. Paragraph B is rejected as irrelevant, however, the evidence supports a finding that some state agencies utilize volume discounts on copier supplies and some state agencies do not purchase in sufficient quantities to utilize volume discounts.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Savin's bids be disqualified. DONE AND ENTERED this of 7th June 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1985.
Findings Of Fact The Respondent, Charles H. Butler, Jr., was for all periods relevant to this case a certified building contractor with the State of Florida, holding license number CB CA13872. It is officially recognized that on September 17, 1987, the administrative complaint that is the subject of this case was filed against Charles H. Butler, Jr. It is further officially recognized that the administrative complaint charges the Respondent with only two violations: Exhibiting "financial mismanagement, misconduct, or diversion, in violation of 489.129(1)(h) and (m)." Failing "to properly supervise the finances on said job, in violation of 489.129(1)(m), (j); 489.119; 489.105(4)." In April, 1986, Charles H. Butler, Jr., entered into a contract with Albert R. Harrelson to construct a commercial building for $144,000. R. Ex. 20, P. Ex. 6. Article 1 of the contract provides that "this contract includes by reference the following: 1) contract agreement form, 2) specifications, 3) material lists, and 4) approved plans." (E.S.) Article 3 of the contract stated that the "required plans and engineering to obtain a building permit are provided by the owner at his cost." The specifications, material lists, and approved plans are not in evidence. Pursuant to Article 7 of the contract, there was to have been a draw schedule for payments. The parties never agreed to a draw schedule as a part of their contract. A large portion of the loan for the construction was provided by Sun Bank of Tampa Bay. Sun Bank established a draw schedule for disbursement of the loan to the contractor, Mr. Butler, as progress was made in construction. Mr. Butler was not consulted regarding this draw schedule, and had not agreed to it. Mr. Harrelson apparently did not either since he testified that he got a copy of the Bank's draw schedule several months after entering into the contract with Mr. Butler. It is concluded that the draw schedule used by the Bank was imposed by the Bank, and was not a part of the contract between Mr. Butler and Mr. Harrelson. Sun Bank hired Inspection Service, Inc., to conduct inspections of the progress of the construction and in that manner to verify that construction had been completed, stage by stage, to justify disbursement of installments under the draw schedule. Sun Bank required Mr. Harrelson to approve loan disbursements as disbursements were made. In reliance upon progress reports of its inspector and Mr. Harrelson, Sun Bank made a total of $107,000 in disbursements under the loan. P. Ex. 9. Sun Bank had disbursed about $88,000 of this amount by February or March, 1987. P. Ex. 9. The amount disbursed by Sun Bank was never intended to cover the entire cost of construction. Mr. Harrelson was required to come up with his own funds to meet the total contract price. Mr. Harrelson refused to make payments to Mr. Butler outside the draw schedule imposed by the Bank. Mr. Harrelson discharged Mr. Butler for alleged breach of contract in March, 1987. Mr. Harrelson testified at length concerning defects that he perceived in the construction of the project and resultant extra financial cost to himself. While Mr. Harrelson testified as to his perception of mistakes made by Mr. Butler, Mr. Harrelson's testimony did not clearly explain the exact scope of the contract. There is no evidence that Mr. Harrelson has any training in the construction of commercial buildings. Mr. Butler testified at length about the delays and inadequacies in receipt of payments under the draw schedule, as well as disagreements he had with Mr. Harrelson concerning what was required by the contract. From the testimony of Mr. Harrelson and Mr. Butler it is concluded that there were changes made in the original plans, changes made in the scope of the work, changes made during the construction due to problems encountered, and that these changes were by attempted oral agreement. For example, neither party could agree as to who was to submit plans, although the written contract clearly says that the owner is responsible. The plans were never placed in evidence. Mr. Butler insists that the contract had an addendum. R. Ex. 20. Mr. Harrelson was not recalled to confirm or deny this testimony, but the contract submitted by the Petitioner, P. Ex. 6, has no addendum. There was to have been a draw schedule, but none was ever agreed to by the parties. Thus, the testimony is too fragmented, confused, and unclear to make a finding as to the exact scope and schedule of the contract. There was no testimony by the person who made the progress inspections for Sun Bank. There was no testimony from any expert in the field of contracting. During the formal administrative hearing, the Petitioner sought to voluntarily dismiss the charge of diversion of funds. The dismissal was sought without prejudice to refiling that charge at another date. The basis of the motion was that the witness from Sun Bank of Tampa did not bring files to answer questions from counsel, and was unprepared to answer from memory. It appeared during the course of the examination of the witness that counsel was not familiar with the documents in the possession of the witness, and that the witness was not prepared to present evidence. The motion was denied.
Recommendation It is therefore recommended that the Department of professional Regulation, Construction Industry Licensing Board, enter its final order dismissing the administrative complaint against Charles H. Butler, Jr. DONE and RECOMMENDED this 23rd day of March, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5041 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used correspond to the numbered and unnumbered paragraphs and sentences in the findings of fact proposed by the Petitioner. (All paragraphs after paragraph 3 have been deemed to be numbered sequentially thereafter.) Findings of fact proposed by the Petitioner: 3. The first sentence is subordinate to findings of fact that have been adopted. It is true, however, and is adopted by reference. Since the entire contract was never proven by clear and convincing evidence, the relevance of this proposed finding of fact is unknown. It is impossible to conclude that the Respondent caused a "self made deficit of $25,000" since the contract itself was never proven by clear and convincing evidence. The administrative complaint did not charge Mr. Butler with failure to supervise the construction of the building. It charged him with financial mismanagement and failure to supervise finances. Moreover, the relevance of evidence concerning Mr. Butler's presence on the job site was never tied into the charge of financial mismanagement. No finding can be made on this record as to the percentage of completion on any date since the contract was never proven. With respect to the remainder of this proposed finding (the list of construction defects), the administrative complaint did not charge Mr. Butler with incompetence in the construction of the building. It charged him with financial mismanagement and failure to supervise finances. Since the entire contract, including changes and alleged defects, was never proven by clear and convincing evidence, it is impossible to conclude that Mr. Harrelson paid more than the contract price. The last two sentences are not relevant to the charge of financial mismanagement. The first sentence is not supported by the evidence. With respect to the next sentence of this proposed finding (the list of construction defects), the administrative complaint did not charge Mr. Butler with incompetence in the construction of the building. It charged him with financial mismanagement and failure to supervise finances. The last sentence is true, and adopted by reference. Since the entire contract was never proven by clear and convincing evidence, the relevance of this proposed finding of fact is unknown. No finding can be made on this record as to the percentage of completion on any date since the contract was never proven. Findings of fact proposed by the Respondent: None. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Charles H. Butler, Jr., Pro Se 8917 Maislin Drive Tampa, Florida 33610 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Tom GallagherSecretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent, Mark O. Holland, is a licensed registered building contractor holding license number RB 0039443. Respondent was licensed at all times material to this action. Sometime around June 19, 1986, Respondent entered into a contract with Mrs. Mary Sue Thames. Ms. Thames resided in Tennessee. The contract covered Ms. Thames' partially burned out home located at 528 Dement Circle, Panama City, Florida. Respondent was to rebuild the damaged portions of the home and to build an addition onto the home. The contract improvements were to be completed within sixty days of the contract date. The contract contemplated installment payments by Mrs. Thames, by September 5, 1986, she had paid $15,000.00 of the total contract price of $17,300.00 to Respondent. The remaining $2,300.00 was to be paid upon completion of the job. Mrs. Thames became concerned that the job was not progressing in a reasonably timely manner in September 1986 when she visited the job site from Tennessee. She observed that "nothing was done" even though the sixty day contract period had expired. Suppliers were removing items from the job that Respondent had not paid for under the contract. Mrs. Thames throughout the job had telephoned the Respondent weekly to check on the progress. Respondent would assure Mrs. Thames that he would "get right on it" and finish the job. Due to Respondent's assurances, Mrs. Thames elected to stay with Respondent so that he could complete the contract. Respondent never substantially performed the job although he did perform part of the contract. Between September 1986 and January 1987, Mrs. Thames in an effort to get the job finished, paid for supplies and materials that Respondent was contractually obligated to purchase. She paid for sheet rock, vinyl, carpet and doors. Respondent had told Mrs. Thames that he had no money to finish the job and that if she would purchase those materials he could finish the job. Mrs. Thames knew the contract obligated the Respondent to furnish the materials she purchased but was trying to work with the Respondent. The effort did not pay off. Respondent had in effect abandoned the job. As stated earlier, Respondent did not complete Mrs. Thames' job. In March 1987, Mrs. Thames' family assisted her in obtaining other subcontractors and suppliers to complete the job. She incurred costs of $8,000.00 to these subcontractors and suppliers, an amount less than the amount already paid to Respondent. Mrs. Thames testified that at least two subcontractors have not been paid by the Respondent those being Stephens Heating and Air Conditioning and M.D. Stewart Plumbing Company. Mr. Lester Stephens, owner of Stephens Heating and Air Conditioning subcontracted with the Respondent. Stephens' company roughed in the central ducts system valued at $700.00 on September 1, 1986 and as of September 27, 1988, had not been paid by Respondent. Coastal Insulation of Northwest Florida, Inc. filed a lien against Mrs. Thames' property as a result of Respondent not paying for supplies. The lien was apparently discharged by Respondent. Mr. Richard Dodson confirmed the testimony of Mrs. Thames. Mr. Dodson added that in addition to the $8,000.00 Mrs. Thames paid to complete the job, she also incurred hotel and travel bills. She also lost approximately 1 - 1/2 years worth of rental income on the house because of Respondent's misconduct and abandonment of the job. Respondent was disciplined by the Panama City Beach Board of Examiners on September 10, 1987 for misconduct and violations of the Building Regulations and Ordinances of the City of Panama City Beach during the Thames job. Respondent's competency card was revoked by the Board. Respondent has never refunded any of the contract price to Mrs. Thames.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That an administrative fine in the amount of $1,000.00 be levied against Respondent. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 9th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2489 The facts contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Tectonics Section Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark O. Holland Route A, Box 366 Youngstown, Florida 32466 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
