The Issue Whether the Respondent, Department of Business and Professional Regulation, Division of Land Sales, Condominiums, and Mobile Homes (Respondent or Division), acted arbitrarily or capriciously in denying Christian Welvaert’s (Petitioner or Welvaert) application to be licensed as a yacht and ship salesmen under Chapter 326, Florida Statutes.
Findings Of Fact Respondent is the state agency charged with regulating and licensing of yacht and ship brokers under Section 326.002(2), Florida Statutes. On October 16, 2001, Welvaert submitted to the Division his application for licensure as a yacht and ship salesman. Licensure is a privilege granted to individuals who affirmatively demonstrate good moral character. The Division is authorized to, and does in fact investigate an applicant's criminal background if one exists. This is done so that the state may determine if the individual's criminal history is of a nature which would warrant denial of licensure. To facilitate the state's investigation, applicants are asked to fully disclose any criminal history. It is required that this question, and all the questions on the application, be answered truthfully. Welvaert falsely stated on his application that his only criminal background was "traffic offense." A Florida Department of Law Enforcement (FDLE) background check revealed that Welvaert had been arrested on several occasions on charges relating to possession of drugs and drug paraphernalia; domestic battery and resisting an officer without violence; probation violation by possessing drug paraphernalia and cannabis; and driving under the influence of drugs or alcohol. Welvaert did not offer any evidence to contradict the FDLE's findings in any material way. He asserted that he never violated probation, claiming that he didn’t know when his court date was because he had moved. This experience did not teach Welvaert the importance of attending to his legal affairs. In this case, he blamed his landlady for his failure to respond to the Division's Request for Admissions, which was properly served upon him at the address he had on file in this case. Welvaert stated, "I thought the person, the landlady I was staying with, I thought she was going to call me or tell me if I had something this important in the mail. I guess she didn't." Petitioner testified that he has "changed his life around" and is now rehabilitated. While he did not unequivocally deny the drug charges, he implied that he "just [took] the time" on the advice of the presiding judge. He further stated, "It was at someone's house. I was in a college town at the time." Nothing in Welvaert's testimony constitutes a legally or factually sufficient excuse for his failure to disclose his criminal background.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's application to be licensed as a yacht and ship salesman’s be denied. DONE AND ENTERED this 4th day of November, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 4th day of November, 2002. COPIES FURNISHED: Joseph S. Garwood, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Christian P. Welvaert 7 Kenmore Lane Boynton Beach, Florida 33435 Ross Fleetwood, Division Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact In late 1988, information was received by Department of Professional Regulation (DPR) investigators that a Georgia licensed contractor was building Shoney's restaurants in Florida with a permit pulled in the name of a deceased Florida licensed contractor, Donald Loftin. The contractor, Quality Construction Builders, Inc., owned by Fred Pringle, was not licensed in Florida. Prior to 1986, Pringle had worked for a restaurant management services who had built several Shoney's restaurants in Florida and Georgia. Pringle, in 1980, obtained a power of attorney from Donald Loftin, a licensed Florida contractor, to pull permits under Loftin's license. Loftin died in December 1981, but Pringle renewed Loftin's license once or twice after Loftin's death and pulled construction permits under this license. An extensive investigation was commenced with particular emphasis on construction projects commenced under permits pulled with Loftin's license. Some 25 witnesses were interrogated, including contractors who had pulled permits for Shoney's restaurants on which construction had been stopped, or threatened with stoppage by local officials, because of the initial permit being pulled on Loftin's license. One of these contractors contacted in this investigation was Samuel Whitener who had pulled a permit for a Shoney's restaurant under construction in Ellenton, Florida, on which a stop order had been issued because of the invalid permit. Other contractors who had pulled similar permits for a fee were questioned as were numerous subcontractors, the superintendent for Quality Construction Builders, Inc., and officials of Restaurant Management Services. When the restaurant at Ellenton was approximately 80 percent completed, the local construction authorities stopped work on the project because of the invalid permit which had been pulled using Loftin's license. After the stop order was issued, Restaurant Management Services (RMS), an arm of Shoney's restaurants, entered into a contract with Petitioner herein to complete the project for which Petitioner was paid $4000. When questioned by DPR investigators regarding this function, Petitioner acknowledged that he was paid $4000, that the subcontractors working on the restaurant continued on the job, that these subcontractors were paid by RMS, that he could not hire or fire the subcontractors, and the construction was supervised by Shoney's general contractor, Quality Construction Builders, who had built several other Shoney's restaurants in Florida. Petitioner further told, or led the investigators to conclude, that he had no responsibility for the ongoing construction and that he visited the site once or twice per week; and that the superintendent was primarily in charge of the construction. Other Florida contractors who had also pulled permits for Shoney's restaurants admitted that, although they had pulled the permits, they did not hire, fire, or pay subcontractors and that they performed little, if any, supervision of the construction. Based on this information, the investigator concluded that Petitioner and other contractors were aiding and abetting an unlicensed contractor to do contracting in this State, and submitted this investigative report recommending that Petitioner be charged with violation of Section 489.129(1)(e) and (f), Florida Statutes. The investigative file, which also included a copy of the Construction Management Services contract between Whitener and RMS, was forwarded to the Probable Cause Panel with recommendation that probable cause for a violation of the Construction Industry License Law be found. This contract contains six specific management services which Whitener would supply on the Ellenton project. The contract did not provide that Whitener would obtain the building permit, gave Whitener no control over the financial aspects of the construction, provided for RMS to pay all subcontractors, and did not provide for Whitener to be the qualifying contractor for RMS or Quality Construction. After reviewing the investigation file, including the management services contract, the Probable Cause Panel found probable cause that Whitener violated Section 489.129(1)(e) and (f), Florida Statutes.
The Issue Whether Respondent acted as a broker or sales associate without being the holder of a valid and current broker or sales associate license, in violation of Subsection 475.42(1)(a), Florida Statutes (2004),1 and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes; and Whether Respondent published or caused to be published an advertisement for the sale of real properties, advertising himself to be a broker, at the time Respondent's license was in inactive status for failure to renew, in violation of Subsection 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Petitioner has jurisdiction over disciplinary proceedings for the Commission. Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. From April 18, 2002, through September 30, 2003, Respondent was an active sales associate in association with Caldwell Banker Residential Real Estate, Inc., a brokerage corporation located at 5981 Catheridge Avenue, Sarasota, Florida 34232. Respondent's Florida real estate sales associate license, number 95480, was involuntarily placed on inactive status due to non-renewal during the period October 1, 2003, through August 15, 2004. On or about February 22, 2004, Respondent published or caused to be published an advertisement for the sale of real properties with the South Florida Sun Sentinel, and in that advertisement, Respondent held himself out to be a realtor in the State of Florida, associated with Caldwell Banker. From August 16, 2004, through the present, upon the late renewal of his license, Respondent is listed as an inactive sales associate.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Subsections 475.42(1)(a), 475.25(1)(a), and 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025 and, therefore, Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint; suspending Respondent's license for a period of one year; fining Respondent the sum of $1,000; and requiring that Respondent pay fees pursuant to Subsection 455.227(3), Florida Statutes, for investigative costs, in the amount of $841.50. DONE AND ENTERED this 4th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 4th of December, 2006.
Findings Of Fact The Respondent, Richard M. Woodley has two inactive contracting licenses numbered CB CA 17970 and CB CO 17970, and was so licensed in 1986. The Respondent's license CB CA 17970 qualified "Woodley Builders, Inc." with the Florida Construction Industry Licensing Board. At the time of the hearing, the Respondent was no longer in the construction contracting business as a licensed contractor. With respect to case number 87-2809, on December 15, 1985, the Respondent, on behalf of Woodley Builders, Inc., entered into a contract with Catherine M. Richardson and Jonathan P. Richardson to build a residence in or near Orlando, Florida. The contract price was $90,000, with $20,000 attributable to the land. The contract specified that payments would be made to Woodley Builders, Inc. "in accordance with the disbursement schedule set forth by the construction lender." P. Ex. 1, paragraph 7. Woodley Builders, Inc. also agreed in the contract to furnish to the Richardsons lien waivers as required by the construction lender for disbursements. The construction lender disbursed the following amounts on the indicated dates: $10,200 March 17, 1986 $10,200 March 19, 1986 $17,000 March 27, 1986 $17,000 April 24, 1986 To induce these disbursements, a total of $54,400, the Respondent signed lien waivers stating that all bills for labor and materials used had been paid in full. P. Ex. 5. At the time of signing, the Respondent told the construction lender that he had paid all bills due to that time, but had not paid bills not yet presented. T. 89. Thus, the lien waivers were intended to be a certification of the partial completion and payment for the work billed to the date of the waiver, and a promise to pay other bills for work already completed as such bills were presented. Six claims of liens were filed by subcontractors. The Richardsons hired a lawyer, and the lawyer was able to defend against two of the liens for failure to properly comply with procedures for mechanic's liens. Four liens for the following amounts and for work beginning on the dates indicated ultimately had to be satisfied by the Richardsons: $ 2,851.45 March 19, 1986 $13,462.34 March 7, 1986 $ 1,944.57 April 8, 1986 $ 785.01 April 9, 1986 These liens were for work commenced before the last lien waiver was signed on April 24, 1986. Thus, the Respondent failed to comply with the oral representations he made at the time of signing the lien waivers. The Richardsons were forced to execute a second mortgage in excess of $17,000 to pay off the unpaid liens. The Richardsons terminated the contract with Woodley Builders, Inc. when subcontractors quit working for lack of payment by Woodley Builders, Inc. Some money was obtained from family loans. It cost the Richardsons about $30,000 to have the house finished, which has added about $325 per month to their mortgage obligations. The Respondent and Woodley Builders, Inc. have not paid anything on these liens. Woodley Builders, Inc. filed bankruptcy. The Richardsons sued the Respondent as trustee for Woodley Builders, Inc. and obtained a default judgment for $149,839, which was a judgment of $32,380 in compensatory damages, trebled, plus costs, interest, and attorney's fees. With respect to case number 87-2810, on June 11, 1986, Woodley Builders, Inc. entered into a contract with Tom Jamieson to construct an addition to his residence in Orlando, Florida. The price of the work was $18,500. The contract specified that the price was a cash price, and that draws were to be made according to a schedule stated in the contract. Mr. Jamieson paid to Woodley Builders, Inc. about $11,700 of the contract price. At some time before completion of the addition, the owner, Mr. Jamieson, evidently became dissatisfied with the Respondent's work. Mr. Jamieson was given the Respondent's copy of the contract and refused to return it to the Respondent. Mr. Jamieson then owed the Respondent a draw of $3500, but refused to give it to him, and refused to have it put in escrow for the payment of subcontractors. The date that this occurred is not in evidence. T. 35-36, 39. Since Mr. Jamieson had taken back the contract, the Respondent thought that he (the Respondent) no longer had any legal proof of the contract (either scope of work or amount due), and thus had no contract to complete the work. He also did not receive the draw that was due. The Respondent thus ceased work on the addition for fear that he would not be paid without a copy of his contract. T. 36-37. The Respondent offered to complete the work. T. 51. The drywall contractor, Rick's Drywall, Inc., filed a lien for $465 for work done from August 12, 1986 and August 20, 1986. The Respondent would have paid this lien had Mr. Jamieson not terminated the contract and refused to give the Respondent a draw still due of $3500. T. 49-50. There may be a claim for unpaid electrical work in July, 1986, see P. Ex. 15, but it is impossible to tell if this occurred before or after Mr. Jamieson terminated the contract, or whether the Respondent had received draw money that should have paid this claim. The only evidence is that the Respondent had an agreement with the electrical subcontractor to pay that subcontractor at the time of the final draw, a draw never received as discussed above. T. 53. P. Ex. 11 is insufficient evidence that there were unpaid claims for roof trusses. Moreover, it cannot be determined whether the Respondent received a draw before contract termination which should have been used to pay for roof trusses. The Respondent had been a contractor for eight years before he began to have financial difficulties resulting in the problems with the Richardson's residence. There is no evidence of any prior discipline.
Recommendation It is recommended that the Construction Industry Licensing Board enter its final order finding in case number 87-2809 that the Respondent, Richard M. Woodley, violated sections 489.129(1)(m), 489.129(1)(j), and 489.119, Fla. Stat. (1986), misconduct in contracting by diversion of funds, and failure to supervise as a qualifying agent, and in case number 87-2810, dismissing the administrative complaint for failure of proof by clear and convincing evidence. It is further recommended for the violation set forth above that the license of the Respondent be suspended for one year. DONE and ENTERED this 22nd day of July, 1988. 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 22nd day of July, 1988. COPIES FURNISHED: Richard M. Woodley 2521 Tuscaloosa Trail Maitland, Florida 32751 David Bryant, Esquire 1107 East Jackson, Suite 104 Tampa, Florida 33602 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Nonroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue to be decided is which of the Petitioners, based upon a systematic comparison of their relevant characteristics, is the most qualified, relative to the other, to receive a license to operate as a medical marijuana dispensing organization in Florida's southwest region.
Findings Of Fact Respondent Department of Health (the "Department" or "DOH") is the agency responsible for administering and enforcing laws that relate to the general health of the people of the state. The Department's regulatory jurisdiction includes matters arising under the Compassionate Medical Cannabis Act of 2014 (the "Act"). See Ch. 2014-157, § 2, at 1-5, Laws of Fla. (pertinent portions codified as amended at § 381.986, Fla. Stat. (2015)). In brief, the Act provides for the regulation and use of low-THC cannabis. The Act authorizes licensed physicians to order this non-euphoric "medical marijuana" for qualified patients having specified illnesses, such as cancer and other debilitating conditions that produce severe and persistent seizures and muscle spasms. By authority granted in section 381.986(5), Florida Statutes, the Department is responsible for selecting a limited number of cannabis dispensing organizations, distributed territorially, which will operate as something like heavily regulated utilities, each having the primary (though nonexclusive2/) responsibility for one of five regions of the state.3/ Each licensed dispensing organization ("DO") will be authorized to cultivate, process, and sell low-THC marijuana statewide to qualified patients for medicinal purposes. In its original form, the Act contemplated that DOH would appoint one DO per region, so that, initially, there would be only five DOs operating in the state of Florida. Section 381.986(5)(b) prescribes various conditions that an applicant for approval as a DO must meet——which only an established plant nursery business could satisfy——and directs the Department to "develop an application form and impose an initial application and biennial renewal fee." The Act further grants DOH the power to "adopt rules necessary to implement" the legislation. § 381.986(7)(j), Fla. Stat. Accordingly, the Office of Compassionate Use ("OCU") within the Department published and eventually adopted rules under which a nursery could apply for a DO license. Incorporated by reference in these rules is a form of an Application for Low-THC Cannabis Dispensing Organization Approval ("Application"). See Fla. Admin. Code R. 64-4.002 (incorporating Form DH9008-OCU-2/2015). To apply for one of the initial DO licenses, a nursery needed to submit a completed Application, including the $60,063.00 application fee, no later than July 8, 2015.4/ See Fla. Admin. Code R. 64-4.002(5). Petitioner Plants of Ruskin, Inc. ("POR"); Petitioner Tornello Landscape Corp., d/b/a 3 Boys Farm ("3BF"); Alpha Foliage, Inc. ("Alpha"); Perkins Nursery, Inc.; TropiFlora, LLC; and Sun Bulb Company, Inc., each timely submitted an application for licensure as the DO for the southwest region. POR is a Florida corporation that has operated as a plant nursery since 1979. For approximately the last decade, POR's primary focus has been growing tomato plants for sale to farmers for cultivation. 3BF has been registered as a nursey with the Florida Department of Agriculture and Consumer Services for more than 30 years. Robert Tornello has been 3BF's nurseryman throughout its existence. All timely filed applications——numbering around 30 with the five regions combined——were initially reviewed by OCU Director Christian Bax for completeness, as required by section 120.60(1), Florida Statutes. If Mr. Bax determined there were any errors or omissions, he sent the applicant a certified letter identifying the deficiencies and providing a deadline for the applicant to provide additional information or documentation. The failure to submit a complete application establishing that the applicant "meets the requirements of Section 381.986(5)(b)" would result in denial on that basis "prior to any scoring as contemplated in [the applicable] rule." Fla. Admin. Code R. 64-4.002(4). Because both POR's and 3BF's applications were deemed complete (after the submission of timely requested additional information), each nursery advanced to the "substantive review" phase of DOH's free-form decisional process for the selection of the state's first regional DOs. The Department was required to "substantively review, evaluate, and score" all timely submitted and complete applications. Fla. Admin. Code R. 64-4.002(5)(a). This evaluation was to be conducted, again according to rule, by a three-person committee (the "evaluators"), each member of which had the duty to independently review and score each application. See Fla. Admin. Code R. 64-4.002(5)(b). The applicant with the "highest aggregate score" in each region would be selected as the Department's intended licensee for that region. By rule, the Department had identified the specific items that its evaluators would consider during the substantive review. These items are organized around subjects, which the undersigned will refer to as Main Topics. There are five Main Topics: Cultivation; Processing; and Dispensing, see rule 64- 4.002(2)(b); Medical Director, see rule 64-4.002(2)(h); and Financials, see rule 64-4.002(2)(f). In the Application, DOH prescribed a more detailed classification scheme, placing four Subtopics (the undersigned's term) under three of the Main Topics (namely, Cultivation, Processing, and Dispensing), and assigning a weight to each Main Topic and Subtopic, denoting the relative importance of each in assessing an applicant's overall merit. In these regards, the Application states: Cultivation (30%) Technical Ability (4.002(2)(a)) [25%] 2. Infrastructure (4.002(2)(e)) [25%] 3. Premises Resources Personnel (4.002(2)(c)) [25%] 4. Accountability (4.002(2)(d)) [25%] Processing (30%) Technical Ability (4.002(2)(a)) [25%] 2. Infrastructure (4.002(2)(e)) [25%] 3. Premises Resources Personnel (4.002(2)(c)) [25%] 4. Accountability (4.002(2)(d)) [25%] Dispensing (15%) Technical Ability (4.002(2)(a)) [25%] 2. Infrastructure (4.002(2)(e)) [25%] 3. Premises Resources Personnel (4.002(2)(c)) [25%] 4. Accountability (4.002(2)(d)) [25%] Medical Director (5%) Financials (20%) There are, in total, 152 specific items comprising the evaluation criteria, which the undersigned calls Factors. The Factors are discrete, (mostly) evidence-based data points including, among other things, attributes such as "experience cultivating cannabis"; tangible items such as "awards, recognition or certifications received"; disclosures concerning, e.g., personnel, assets, and business plans; and promissory representations about, for example, proposed staffing and projected budgets. Eighteen of the Factors, in turn, have associated Subfactors, which are set forth in the Application. The possession or satisfaction of any individual Factor is not mandatory; as a group, however, they represent the set of all items the Department deems important to consider in selecting applicants for licensure. Thus, applicants are required to address the Factors, if not all of them, in their applications. In the Application, the Factors are organized by Subtopic (where applicable) or Main Topic (in the absence of Subtopics). Thus, there are 14 categories of Factors, four each (due to Subtopics) for Cultivation, Processing, and Dispensing, making 12; plus two: Medical Director and Financials. The undersigned refers to these 14 categories as Domains. Each Domain has a relative weight as determined by the Department. The Medical Director and Financials Domains, having no Subtopics, count 5% and 20%, respectively, towards the computation of an applicant's overall merit. The four Cultivation Domains and the four Processing Domains are worth 7.5% apiece.5/ The four Dispensing Domains are valued at 3.75% each.6/ Unlike the Domains, the Factors are not separately weighted; the Department's evaluators were allowed to use their discretion in applying the Factors, provided they used them "holistically" and exclusively, that is, as a complete system and to the exclusion of other considerations not specified for the Domain under review. To summarize, the Domains, the number of Factors belonging to each, and their relative weights are set forth in the following table: DOMAIN No. of Factors Weight Main Topic Subtopic I. A. Cultivation 1. Technical Ability 14 7.50% II. A. Cultivation 2. Infrastructure 3 7.50% III. A. Cultivation 3. Premises, Resources, Personnel 13 7.50% IV. A. Cultivation 4. Accountability 13 7.50% V. B. Processing 1. Technical Ability 9 7.50% VI. B. Processing 2. Infrastructure 3 7.50% VII. B. Processing 3. Premises, Resources, Personnel 12 7.50% VIII. B. Processing 4. Accountability 15 7.50% IX. C. Dispensing 1. Technical Ability 8 3.75% X. C. Dispensing 2. Infrastructure 8 3.75% XI. C. Dispensing 3. Premises, Resources, Personnel 10 3.75% XII. C. Dispensing 4. Accountability 13 3.75% XIII. Medical Director 17 5.00% XIV. Financials 14 20.0% A larger table that includes the text of each Factor and Subfactor is attached to this Recommended Order as Appendix A. In performing the substantive review of the initial applications filed in 2015, DOH's three evaluators were required to use Form DH8007-OCU-2/2015, "Scorecard for Low-THC Cannabis Dispensing Organization Selection" (the "Scorecard"), which is incorporated by reference in rule 64-4.002(5)(a). The Scorecard is a two-column table that contains, in the left-hand column, a list of all the Factors (divided into separate rows) within each Domain; shows the weight assigned to each Main Topic; and creates, where the right-hand column intersects the row in which a particular Factor is set forth, an empty cell that might be used for recording a score. There are no instructions on the Scorecard. The Department's rules are also silent as to how the evaluators were supposed to score applications using the Scorecard. To fill this gap, the Department devised an extra- rule methodology, which is described in a Memorandum dated September 15, 2015. In that document, the Department's general counsel instructed the evaluators in relevant part as follows: Scoring of the applications is comparative. That is, you compare each application to the others in the particular region for which the license is sought. Applications should be segregated by region and evaluated comparatively. Applications should be scored highest to lowest in each [Domain], as indicated on the attached Sample Scorecard. By way of example, if there are five (5) applicants in a region, the highest rank score is five (5) and the lowest is one (1). The evaluators followed these instructions. Thus, during the substantive review, the evaluators compared competing applicants, sorted by region, so that the applicants for the southwest regional license were graded as one group, those seeking the southeast regional license as another, and so forth. There was no cross-regional comparative review. For each of the 14 Domains, the evaluators ranked the applicants, by regional group, in order of preference, the first-ranked applicant being the one deemed the most desirable of the regional competitors with respect to the Domain in view, followed by the next best, then the third best, etc. In this manner, an applicant would be ranked (by each of three evaluators) in comparison to its regional competitors 14 separate times. In determining the orders of preference within the Domains, there were no external standards against which the applicants were measured. Lacking an objective yardstick for measuring absolute quality, each evaluator needed to determine for himself or herself how persuasively an applicant had demonstrated its possession or satisfaction of (or compliance with) the relevant Factors within the Domain being evaluated, in comparison with the other regional applicants, and then use those findings to decide which applicant was——relatively speaking——the best of the group within that Domain (hereafter, "BGD"). After that, the BGD served, in theory at least, as the benchmark, for the other applicants would be ranked below the BGD in descending order, reflecting the evaluator's judgment about the general direction of the decline in relative quality from the BGD's mark. To be clear, an applicant's being selected as the BGD did not mean that it was "superior" according to any standard defining "superior"; "best" in this instance meant only that the first-ranked applicant was considered better than the others in the group within that Domain. By the same token, to be named, e.g., the second-place applicant did not mean that the applicant necessarily was "excellent" or merely "good"; it meant only that this applicant was less good, in some unknown degree, than the applicant ranked above it. The degree of qualitative difference between any two applicants in the ranking might have been a tiny sliver or a wide gap. The evaluators made no findings with respect to degrees of difference. After ranking the applicants, by regional group, from top to bottom within each Domain, the applicants were "scored" 14 times by each evaluator——according to rank order. Thus, each Domain ostensibly offered an applicant a separate "scoring opportunity." The top score was determined by the number of applications in the region. If there were five applicants, as in the southwest region, then 5 would be the highest score, and the first-ranked applicant would receive 5 points. In a four- applicant field, by way of contrast, the highest score would be 4.7/ The second-place and lower ranked applicants received scores that were 1 point less than the score assigned to the applicant immediately ahead of them in the order of rank. To complete the evaluation process, the evaluators' 14 scores were weighted (using the percentages set forth in the table above), by Domain, and added together to produce a total score per reviewer. A perfect score——5 in this case of the southwest region——would be equal to the number of regional applicants. The reviewers' respective total scores were then combined and averaged to produce an aggregate score, which the Department referred to as the "final rank." The highest "final rank" in the region was awarded the highest "regional rank," which, in a five-applicant field, would be 5. The applicant with the highest regional rank was selected as the intended recipient of the regional license (with one exception that is not relevant here). Under the methodology just described, Alpha achieved the highest regional rank in the southwest region and, accordingly, received notice of DOH's preliminary decision to approve Alpha's application. POR and 3BF, in contrast, each received notices dated November 23, 2015, which assured them that "a panel of evaluators" had "substantively reviewed, evaluated, and scored" their applications "according to the requirements of Section 381.986, Florida Statutes and Chapter 64-4, of the Florida Administrative Code" and gave notice that DOH intended to deny their applications because both were "not the highest scored applicant in the Southwest region." For reasons set forth in brief below——and detailed in the Informational Order on the Multi-Criteria Evaluation of Applications for Approval to Operate As a Dispensing Organization (the "Info-Order"),8/ which was issued on September 8, 2016——DOH did not actually score the applications, as required by rule 64-4.002(5)(a); it merely ranked them. A ranking determines an item's position within a set of items, as, for example, 1st, 2nd, 3rd. Numbers which designate the respective places (ranks) occupied by items in an ordered list are called ordinal numbers. A score, in contrast, is "a number that expresses accomplishment (as in a game or test) or excellence (as in quality) either absolutely in points gained or by comparison to a standard." See "Score," Merriam- Webster.com, http://www.merriam-webster.com (last visited May 3, 2017). Scores are expressed in cardinal numbers, which show quantity, e.g., how many or how much. When used as a verb in this context, the word "score" plainly means "to determine the merit of," or to "grade," id., so that the assigned score should be a cardinal number that tells how much quality the graded application has as compared to the competing applications. As stated above, the Department's "scoring" methodology assigned to first place (most preferred) in any series a "score" equal to the ordinal number denominating the last place (least preferred) in the series, e.g., 5 if there were five applicants under review, and to each place below 1st a "score" that was one point less than that given to the immediately preceding rank. In other words, an applicant's "score" for a given series was simply its ordinal position in the series, inverted. Thus, the evaluators did not rank applicants by score for each Domain, nor did they score any application; instead, they scored each applicant's rank, per Domain, with a fixed and predetermined value, i.e., a number between 1 and x, where x equaled the total number of applications being comparatively evaluated for a given region. Thus, the evaluators automatically assigned the maximum score (100% of the points available) to the BGD; 80% of the maximum score to the second-place applicant (if, as here, x = 5); to the one after that, 60%; then 40%; and finally 20%.9/ These scores did not reflect the relative merit of each applicant as compared to the BGD. Indeed, because degrees of qualitative difference were not important to the evaluators in making their determinations regarding relative quality, as Mr. Bax testified without contradiction at hearing, no findings concerning how much quality an applicant offered in relation to the others with which it was competing were required of, or made by, them. Yet, without such findings, no genuine score could be assigned. The Department's process gave the impression of scoring, without accomplishing the reality of scoring, because a score of 4, say, did not mean that the second-ranked applicant was judged to be 25% inferior to (or 80% as good as) the BGD in a five-applicant field. Nor did a score of 1 mean that the last-ranked applicant per Domain was found to be 400% worse than the BGD. If the qualitative difference between the BGD and the fifth-place applicant (although actually unknown) were 10%, for example, meaning that the last-ranked applicant was 90% as good as the BGD, fifth place (out of five) would still get only 20% of the points. Whether intentional or not,10/ the Department's scoring methodology imposed predetermined, artificial degrees of qualitative separation between the applicants, creating deceptive numerical margins having no rational relationship to actual qualitative proximities, which latter were not determined by, and thus were unknown to, the evaluators. The imposition of fixed, across-the-board scoring margins between adjacent positions in the evaluators' orders of preference was arbitrary because it placed specific values on unknown quantities. DOH's reliance upon arbitrary scores to determine the winners in a multi-criteria evaluation featuring 14 separately-weighted categories makes the results of its substantive review of the applications unreliable. It is unlikely that the five applicants originally chosen by the Department actually were, as a group, "the [five] most qualified Applicants." Application, at 1. This is important because the Department has taken the position that its preliminary rankings of the applicants are not to be treated as matters of fact up for grabs in a de novo hearing, but rather as presumptively correct, "policy-infused" findings of fact entitled to some measure of deference. The Department's legal arguments, which are rejected, will be dealt with later.11/ For now, at the risk of belaboring the point, the undersigned will illustrate how the Department's arbitrary scoring methodology fatally undermines its preliminary rankings, which would not survive even the most deferential standards of review. Suppose that after scoring hypothetical applicants on the first 13 Domains, an evaluator using DOH's scoring methodology has applicants A and B in first and second place, in a five-applicant field, with respective scores of 3.625 and 3.575.12/ The last Domain (Financials), worth 20%, will determine the winner. Imagine that the evaluator ranks B as the best of the group in Domain XIV, while putting A in 3rd place, behind C. Under the Department's system, B wins, edging A with a score of 4.575 to 4.225. Imagine, now, the same facts, but with one difference. Instead of using the Department's methodology, the evaluator quantifies his judgments regarding the degrees of difference in quality between the applicants and awards points based on these qualitative assessments rather than on each applicant's place in his order of preference.13/ The evaluator's order of preference in Domain XIV, again, is B, C, A, but he considers all three applicants to be very close in quality——nearly indistinguishable, in fact——deeming C to be 98% as good as B, and A 96% as good. The qualitative space between adjacent positions among the top three applicants, in other words, is actually 2% instead of the arbitrary 20% that the Department's methodology imposes. As a result, 0.96 points are added to A's cumulative total, 1.00 to B's, and 0.94 to C's. In this scenario, A wins despite its 3rd-place ranking in Domain XIV, beating B in a photo finish, 4.585 to 4.575. As this illustration demonstrates, the more qualified- in-fact applicant, A, would lose under DOH's system, which irrationally awards points based on arbitrarily imposed qualitative spaces between applicants, magnifying the effects of very small differences in actual relative quality, while minimizing the effects of large ones. This flaw would fatally distort the results of any multi-criteria, multi-category evaluation, but it is grossly influential where the categories are separately weighted——here, from 3.75% to 20%——because DOH's methodology is capable of transforming narrow qualitative differences-in-fact (especially in the heavier weighted Domains) into wide scoring margins, and vice versa. These dynamics operated under the radar to affect the outcome of the substantive review of applicants for the southwest region's DO license. It is impossible to know whether Alpha would have ended up with the highest aggregate score if the evaluators had awarded points based upon some reasonable measurement of actual relative quality. All we can be sure of is that the evaluators' scores reflect artificial gaps in relative quality predetermined by a procrustean scheme that fixed the degree of difference between adjacently ranked applicants at a constant margin, e.g., 20%, derived from the number of applicants for the region——a datum wholly unrelated to quality.14/ Because this is not a review proceeding, and because the Department's scoring of the applicants was, in any event, clearly erroneous, arbitrary, capricious, or an abuse of discretion, it has fallen to the undersigned, as the trier of fact in this de novo hearing, to perform a substantive review of POR and 3BF's applications for the purpose of determining which of these, the last remaining competitors for the southwest region's DO license, is in fact, the most qualified applicant.15/ In so doing, as promised in the Info-Order, the undersigned has followed the statutes and existing rules pertaining to the comparative evaluation of applicants, to the extent such laws are applicable in this formal hearing. Accordingly, the undersigned used the 14 Domains, giving them, respectively, the weights assigned by the Department. Likewise, the undersigned used the Factors just as the Department said it did. Because, however, as explained above, the Department's scoring methodology violates the plain language of rule 64- 4.002(5) and cannot reliably achieve the stated goal of selecting the most qualified applicant,16/ the undersigned was compelled to score the applications differently, i.e., in the true sense of the word, so that the degrees of difference between the competitors could be taken into account in the assignment of points. This required that findings of fact be made concerning the degrees of qualitative difference between POR and 3BF as to each Domain. Early in the process the undersigned learned that determining a BGD without an external benchmark was just too undisciplined to be workable. The temptation would be to overvalue some Factors, overlook others, consider undisclosed criteria, and finally resort to making gut decisions about which applicant was better and by how much. So, it was decided that the applicants would be awarded Individual Performance Points ("IPPs") for every Factor, with each score reflecting the undersigned's ultimate factual determination concerning how well the applicant, considered independently of others, performed vis-à-vis that Factor as measured against a constructed scale (described below). For each Domain, an applicant's IPPs were added to produce a Composite Score.17/ The Composite Scores would be compared, and the applicant with the highest Composite Score would be deemed the BGD. The BGD's Composite Score for the Domain then became, for purposes of the comparative review, the perfect score, entitled to 100% of the Relative Quality Points ("RQPs") available for the Domain in question. For simplicity's sake, the undersigned had decided that there should be a grand total of 100 RQPs available, so that the maximum number of RQPs awardable per Domain would equal each Domain's relative weight in DOH's scheme. Domain I.A.1, for example, has a relative weight of 7.5%. Thus, the BGD for that Domain would receive a Domanial Score of 7.5 RQPs. 50 The second-place applicant per Domain received a scaled percentage of the maximum number of RQPs available for the Domain in question. If the BGD's Composite Score were 50, for example, and the other applicant's 45, then the second-place applicant would receive 90% of the RQPs available for the Domain——90% reflecting the magnitude-of-difference ratio ( 45) between the two competitors. Thus, if the maximum Domanial Score were 7.5, this applicant would receive a Domanial Score of 6.75 RQPs. After scoring both applicants, their Domanial Scores were totaled to produce a Regional Score for each. The applicant with the highest Regional Score would be the most qualified applicant in the field. As mentioned above, the undersigned found it necessary to construct a rating scale because experience taught that it is a fool's errand to try to choose——without a frame of reference—— the better of two applicants who have responded to the Factors using (oftentimes) different but reasonable approaches. Indeed, the nature of the Factors is such that, in many instances, the question of whether one applicant's response is "better" than another's largely comes down to personal preference, so that formulating an answer is like deciding which fast food chain makes a better hamburger——except more difficult, because we are evaluating what are, essentially, startup companies aiming to enter a newly created, heretofore illegal market. Ordinarily, the market would decide, based on collective experience accumulated over time, which company provides the better combination of products and services; here, however, someone (or some limited number of persons) must decide, in advance, for the market. In exercising such a heavy responsibility, the decision maker(s) should endeavor to minimize the influence of rank subjectivity. So, as a means of making the required decision pursuant to a logical method, the undersigned devised the following seven-level18/ scale: IPPs RATING SCALE Level (Points) Description 5 Proved not only the existence or satisfaction of, or compliance with, the Factor, but also mastery or preeminence (if, e.g., knowledge, experience, or qualifications), or "state of the art" quality or development (if, e.g., device, technique, facility). 4 Proved not only the existence or satisfaction of, or compliance with, the Factor, but also excellence or expertise (if, e.g., knowledge, experience, or qualifications), or exceptional quality or development (if, e.g., device, technique, facility). 3 Clearly proved the existence or satisfaction of, or compliance with, the Factor, leaving little or no reasonable doubt. 2 Proved the existence or satisfaction of, or compliance with, the Factor, persuasively but not forcefully. 1 Proved the partial, but not complete, satisfaction of, or compliance with, the Factor. 0 No response, nonresponsive, or failed to prove the existence or satisfaction of, or compliance with, the Factor. NC (2.5)19/ Not contested, i.e., no applicant identified this Factor as a potential point of preference. In awarding IPPs to the applicants for each of the Factors, the undersigned considered all the relevant evidence in the record, resolved conflicts therein, if any, to ascertain the relevant historical, objective, or empirical facts, and made determinations of ultimate fact concerning the level to which, in the scale above, an applicant's response to a particular Factor rose. Each IPP score, therefore, numerically expresses an ultimate fact representing the culmination of a rigorous deliberation. These ultimate facts are set forth in the scoresheet attached as Appendix B to this Recommended Order. The undersigned readily acknowledges that the ultimate facts set forth in Appendix B are not falsifiable. The reality is that no one could perform this evaluation to the satisfaction of all reasonable observers. Indeed, there are likely few individual IPP scores that are beyond reasonable dispute, to say nothing of the outcome itself. That is simply the irreducible nature of the case. If the undersigned were to burden this Recommended Order with explanations of each scoring decision, therefore, those dissatisfied with the result could easily pick them apart, while others could just as easily find ample support for them in the record. The game's not worth the candle. The table below shows the Domanial and Regional Scores for POR and 3BF: DOMANIAL SCORES POR 3BF Domain I.A.1 6.52 7.50 Domain II.A.2 7.50 6.56 Domain III.A.3 6.65 7.50 Domain IV.A.4 7.50 7.28 Domain V.B.1 5.94 7.50 Domain VI.B.2 7.50 7.50 Domain VII.B.3 6.75 7.50 Domain VIII.B.4 7.50 7.31 Domain IX.C.1 3.75 3.41 Domain X.C.2 3.75 3.75 Domain XI.C.3 3.75 3.47 Domain XII.C.4 3.75 3.53 Domain XIII.D 4.70 5.00 Domain XIV.E 20.00 18.31 95.56 REGIONAL SCORES 96.12 3BF is the apparent "winner" by 0.56 RQPs. This margin of victory, however, reflects a false precision. The Regional Scores are reported above as numbers having two decimal digits, to the hundredths place. These numbers to the right of the decimal point are spurious digits introduced by calculations carried out to greater precision than the original data, the IPPs, which were awarded in whole numbers (unless the Factor was not contested). The Domanial Scores could not possibly have been more precise than the underlying IPP scores having the least number of significant figures in the equation, and these were always one-digit integers (with the unusual exception of Domain VI.B.2, where each applicant received straight 2.5s because no Factor was contested). To eliminate the false precision, the spurious digits should be rounded off. This produces a tie score of 96-96. The undersigned therefore determines as a matter of ultimate fact that there is no meaningful qualitative difference between POR and 3BF when they are comparatively evaluated using the prescribed weighted Domains and unweighted Factors. Both POR and 3BF are qualified for licensure, for each meets the requirements set forth in section 381.986(5)(b). It is unnecessary to make findings of fact regarding the applicants' satisfaction of these conditions because DOH never gave timely notice of intent to deny either party's application for failing to demonstrate that it had the necessary abilities, infrastructure, or personnel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Health consider whether, in the exercise of newly acquired constitutional authority, it may license both Plants of Ruskin, Inc., and Tornello Landscape Corp., d/b/a 3 Boys Farm, as MMTCs; and then consider exercising such authority, if thought to exist, because there is no meaningful qualitative difference between these applicants, as a matter of ultimate fact. If the Department chooses not to license both applicants as MMTCs, then a final order should be entered approving the application of Tornello Landscape Corp., d/b/a 3 Boys Farm, whose score of 96.12 is the highest, if only by a mathematically insignificant margin. DONE AND ENTERED this 23rd day of May, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2017.
The Issue Whether Petitioner's license as a Professional Surveyor and Mapper became void on March 1, 1997, by operation of Section 455.271, Florida Statutes. If so, whether the Board of Surveyors and Mappers (Board) has the authority to reinstate Petitioner's license in any manner other than that set forth in Section 455.271(6), Florida Statutes. Whether the Board is estopped from asserting that Petitioner's license should not be reinstated. Whether Petitioner is entitled to have his license reinstated by operation of Section 472.041, Florida Statutes.
Findings Of Fact Petitioner was initially licensed as a Professional Surveyor and Mapper on July 11, 1986, and issued license number 0004297. Such licenses must be renewed every two years pursuant to Section 472.017, Florida Statutes. The Board is an agency of the State of Florida with the duty to regulate those licensed as Professional Surveyors and Mappers. Pursuant to Section 472.015, Florida Statutes, DBPR is the agency of the State of Florida that actually issues such licenses. It is undisputed that Petitioner renewed and maintained an active license through the 1993/1994 biennium, which ended February 28, 1995. There is a conflict in the evidence as to whether Petitioner renewed his license after the 1993/1994 biennium. Petitioner testified that he mailed to DBPR by regular mail a form renewing his license for the 1995/1996 biennium, enclosed a check in the appropriate amount with the renewal form, and requested in writing on the back of the renewal form that the status of his license be changed from active to inactive because he could not at that time meet continuing education requirements. Petitioner produced a copy of the renewal form and a copy of the check, dated February 10, 1995, he said he mailed to DBPR. Petitioner did not know whether his check had been cashed, and he did not receive anything from DBPR reflecting that his license had been renewed and placed in an inactive status. Whenever any licensee renews a professional license, DBPR issues and mails a two-part license containing a wallet portion and a display portion that verifies the renewal. 3/ Petitioner made no effort to determine why his check had not been cashed or why he had not received his renewed license. Petitioner's failure to follow-up on his renewal request can be explained, in part, by the fact that his life was in disarray, both from a personal and a professional perspective. During this period in 1995, Petitioner had closed his surveying business and was working in an unrelated business, he was living in the marital residence on an intermittent basis, and he was depending on his estranged spouse and his children to deliver his mail to him. Respondent's records do not reflect that Petitioner took any action after the 1993/94 biennium to renew or inactivate his license. Had Petitioner taken such action, Respondent's records would have contained a renewal request form, the request to inactivate the license, and documentation that a renewed license had been forwarded to Petitioner. Had DBPR received a renewal check from Petitioner, its records would reflect that the check had been received and negotiated. The conflict in the evidence is resolved by finding that Petitioner failed to renew his license after the 1993/1994 biennium. On March 1, 1995, Petitioner's license became delinquent pursuant to Section 455.271(5), Florida Statutes. On March 9, 1995, DBPR changed its computer records to reflect that Petitioner's license status had been changed to delinquent. In November 1996, Petitioner's address of record with DBPR was his marital residence, 1620 Southwest 99 Court, Miami, Florida. Petitioner continued to use the marital residence as his address of record with the Board and DBPR until November 1999. There was a dispute in the evidence as to whether DBPR and the Board had Petitioner's correct address of record. Petitioner introduced a roster of individuals and firms holding active Professional Surveyors and Mappers licenses that was prepared from the Board's data base as of October 1994. This roster contained an incorrect address for Petitioner. Respondent established that this roster was not used by either the DBPR or the Board to mail any of the forms or notices at issue in this proceeding. Respondent also established that both DBPR and the Board had Petitioner's correct address of record at all times pertinent to this proceeding. The conflicting evidence is resolved by rejecting Petitioner's contention that the pending cancellation notice was not mailed to his address of record in November 1996. Petitioner testified that he never received any notice that his license was about to be cancelled. The records of DBPR established that a Notice of Pending Cancellation of License was processed by DBPR on November 18, 1996, and mailed to Petitioner at his address of record on November 22, 1996. The notice advised that Petitioner's license would become null and void on March 1, 1997, if the license was not placed on an active or inactive status by that date. The notice also advised that it was the only notice Petitioner would receive before his license became null. Petitioner initiated no communication with either DBPR or the Board in 1996, 1997, or 1998. On March 1, 1997, Petitioner's license became null by operation of Section 455.271(6), Florida Statutes. DBPR entered in its computer system on March 9, 1997, that the status of Petitioner's license had been changed from the classification of "delinquent" to the classification of "null and void." In 1999, Petitioner decided to return to activities requiring licensure as a Professional Surveyor and Mapper. When he applied for a job with a surveying company in the fall of 1999, he learned that his license was classified null and void. Petitioner, through attorney T. S. Madson, II, moved the Board to reinstate his license and requested the opportunity to present argument in support of his motion at the Board meeting scheduled for January 12-14, 2000, in Tallahassee, Florida. Mr. Madson and Petitioner appeared before the Board on January 13, 2000. Upon hearing Petitioner's claim that he had not received the pending cancellation notice in November 1996, the Board voted to reinstate his license. 1/ The Board did not enter a written order memorializing that vote. On March 6, 2000, counsel for DBPR filed a formal motion that the Board reconsider its vote to reinstate Petitioner's license, arguing that the Board lacked the legal authority to reinstate a license that had become null and void. Subsequent to the Board's vote on January 13, 2000, Petitioner engaged in activities that require licensure as a Professional Surveyor and Mapper. Until May 2000, Petitioner sealed surveys using license number 0004297. On May 18, 2000, at a duly noticed meeting in Key West, Florida, with Petitioner and Mr. Madson in attendance, the Board addressed DBPR's motion to reconsider. After debate, the Board voted to grant the motion to reconsider and thereafter voted to rescind its previous order reinstating Petitioner's license. A written Order Rescinding Reinstatement of License was formally entered on May 31, 2000. The basis for the vote was the Board's determination that it lacked the legal authority to reinstate Petitioner's license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application that his license be reinstated. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2001.
Findings Of Fact Lamar submitted a permit application for a location 120 feet west of Hickory Avenue, in Bay County, Florida, on the south side of U.S. 98, on November 25, 1985, and resubmitted that application on December 16, 1985. On January 8, 1986, DOT denied the application solely because of spacing conflicts with permit Nos. AD089-10 and AD090-10 held by Headrick. That denial was made in a Memorandum of Returned Application. The Memorandum of Returned Application contained the following statement: PLEASE BE ADVISED THAT IF YOU BELIEVE YOUR APPLICATION HAS BEEN INAPPROPRIATELY DENIED, YOU HAVE THE RIGHT TO REQUEST AN ADMINISTRATIVE HEARING UNDER SECTION 120.57, FLORIDA STATUTES, WITHIN THIRTY (30) DAYS OF THE DATE OF THIS NOTICE. THE SUBMITTED HEARING REQUEST SHALL GIVE A BRIEF STATEMENT SETTING FORTH THE REASON(S) FOR REVIEW. SUCH HEARING REQUEST MUST BE FURNISHED TO: THE CLERK OF AGENCY PROCEEDINGS FLORIDA DEPARTMENT OF TRANSPORTATION, 605 SUWANNEE STREET, TALLAHASSEE, FLORIDA 32301 Lamar requested an administrative hearing by letter dated March 13, 1986. On March 12, 1986, Headrick applied for a permit for a sign to be located on the south side of U.S. 98, 285 east of Hickory Avenue, in Bay County, Florida. By letter dated March 31, 1986, the Headrick application was returned unapproved because of a pending administrative hearing requested by Lamar concerning the location of permits AD089-10 and AD090-10. This letter did not advise Headrick of its rights to an administrative hearing. Headrick did not request a hearing for these applications. Lamar applied for a permit for a sign location on the south side of U.S. 98, 120 feet west of Hickory Avenue, in Bay County, Florida, again on March 13, 1986. A Memorandum of Returned Application, dated April 3, 1986, was sent to Lamar, denying the application because of a spacing conflict with Permits AD089-10 and AD090-10 located 100 feet westerly of Hickory Avenue on the eastbound (south) side of U.S. 98. This Memorandum contained the same language as that set forth above and, by letter dated April 18, 1986, Lamar requested an administrative hearing. This request resulted in Case No. 86-1707T herein. Another case, with DOT as Petitioner, Headrick as Respondent, and Lamar as Intervenor, Case No. 85-4165T, resulted in a Final Order dated September 2, 1986, revoking Permits AD089-10 and AD090-10. The Final Order was based upon findings that Headrick was advised on August 9, 1985, by the property owner, that the property was being sold and that Headrick had thirty (30) days to remove its sign. Further, by letter dated October 17, 1985, the property owner advised DOT that Headrick no longer had a valid lease for the signs and the signs had been removed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the December 16, 1985, application filed by Lamar Advertising company for a location on the south side of U.S 98, 120 feet west of Hickory Avenue, in Bay County, Florida, be GRANTED. DONE AND ENTERED this 5th day of May, 1987, in Tallahassee Florida. DIANE K. KIESLING 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 5th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1043T The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Lamar Advertising Company Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(1); 3(2); 4(2); 5(2); 6(1); 7(3); 8(3); 9(1 and 3); and 10(4). Proposed finding of fact 11 is rejected as unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Transportation 1. Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(3); and 4(4). Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Headricks Outdoor Advertising 1. Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2); 2(2); 3(2); 4(1); 5(1); and 6(4). COPIES FURNISHED: Barbara W. Palmer, Esquire Beggs & Lane 700 Blount Building Post Office Box 12950 Pensacola, Florida 32576 Vernon L. Whittier, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 William G. Warner, Esquire 565 Harrison Avenue Post Office Drawer 335 Panama City, Florida 32402 Kaye N. Henderson, Secretary Haydon Burns Building 605 Suwanne Street Tallahassee, Florida 32301 =================================================================
The Issue Whether or not on or about December 8, 2000, Petitioner possessed the appropriate license to operate a body-piercing salon establishment in accordance with Section 381.0075, Florida Statutes, and Chapter 64E-19, Florida Administrative Code.
Findings Of Fact Based upon the evidence presented, the testimony, and upon the personal inspection of the undersigned, the following findings of fact are made: At all times material hereto, Respondent, Department of Health, Division of Environmental Health, is the state agency charged with implementation of Section 381.0075, Florida Statutes, and Chapter 64E-19, Florida Administrative Code. At all times material hereto, Petitioner, Rita Moroz, operated a manicure-pedicure, nail-lengthening establishment, "A New Adventure of Tampa Bay," located at 11608 North Dale Mabry Highway, Hillsborough County, Tampa, Florida 33618. Section 381.0075(2)(a), Florida Statutes, defines "BodyPiercing" as for commercial purposes the act of penetrating the skin to make, generally permanent in nature, a hole, mark, or scar. "Bodypiercing" does not include the use of a mechanized, presterilized ear-piercing system that penetrates the outer perimeter of lobe of the ear or both. At all times material hereto, Petitioner admitted that she operated a body-piercing establishment salon and provided body-piercing services without first having obtained a body-piercing license as required by law. At all times pertinent hereto, Petitioner possessed a manicure-pedicure license issued by another country and her foreign license also authorized body-piercing services. Petitioner, upon receipt of the Certificate of Violation, discontinued performing body-piercing services. The representative for the Agency stated that the Department would accept, in consideration of Petitioner's admissions and prompt discontinuation of body-piercing services, a reduced fine in an amount not to exceed $500.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
