The Issue Whether in making a preliminary decision to award a contract for the subject services under Invitation to Bid No. 12-039T – Refuse Services (the ITB) Respondent School Board of Broward County, Florida (the School Board) acted contrary to a governing statute rule policy or project specification; and if so whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Specifically, Petitioner Ace Waste Services, LLC (Petitioner) challenges the determination that the bids submitted by the apparent low bidder, the apparent low second low bidder, and the apparent low third low bidder were responsive and responsible bids meeting the specifications contained in the ITB.
Findings Of Fact School Board Policy 3320 entitled "Purchasing Policies" is the agency's rule governing the purchasing of goods and services. On October 7, 2011, the School Board issued the ITB which was entitled "Refuse Services." On October 18, 2011, the School Board issued Addendum No. 1 to the ITB. The refuse services were to be provided to 58 district school sites, which were collectively referred to as Group 1. The Bidder Acknowledgement found at Section 1.0 of the ITB states in pertinent part as follows: I agree to complete and unconditional acceptance of this bid all appendices and contents of any Addenda released hereto; I agree to be bound to all specifications terms and conditions contained in this ITB . . .. I agree that this bid cannot be withdrawn within 90 days from due date. Section 3 of the ITB states as follows at General Condition 3(b): MISTAKES: Bidders are expected to examine the specifications delivery schedules bid prices and extensions and all instructions pertaining to supplies and services. Failure to do so will be at Bidder's risk. Section 3 of the ITB states as follows at General Condition 35: PROTESTING OF BID CONDITIONS/SPECIFICATIONS: Any person desiring to protest the conditions/specifications of this Bid/RFP or any Addenda subsequently released thereto shall file a notice of intent to protest in writing within 72 consecutive hours after electronic release of the competitive solicitation or Addendum and shall file a formal written protest with ten calendar days after the date the notice of protest was filed. Saturdays Sundays legal holidays or days during which the school district administration is closed shall be excluded in the computation of the 72 consecutive hours. If the tenth calendar day falls on a Saturday Sunday legal holiday or day during which the school district administration is closed the formal written protest must be received on or before 5:00 p.m. ET of the next calendar day that is not a Saturday Sunday legal holiday or days during which the school district administration is closed. Section 120.57(3)(b) Florida Statutes as currently enacted or as amended from time to time states that "The formal written protest shall state with particularity the facts and law upon which the protest is based." Failure to file a notice of protest or to file a formal written protest within the time prescribed by [section 120.57(3)(b)] or a failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. The failure to post the bond required by School Board Policy 3320 Part VI within the time prescribed by School Board Policy 3320 Part VI as currently enacted or as amended from time to time shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. Notices of protest formal written protests and the bonds required by School Board Policy 3320 Part VI shall be filed at the office of the Director of Supply Management and Logistics 7720 West Oakland Park Boulevard, Suite 323 Sunrise, Florida 33351 (fax 754-321-0936). Fax filing will not be acceptable for the filing of bonds required by School Board Policy 3320 Part VI. Section 3 of the ITB states as follows at General Condition 36: POSTING OF BID RECOMMENDATIONS/TABULATIONS: Any person who files an action protesting an intended decision shall post with the School Board at the time of filing the formal written protest a bond payable to the School Board of Broward County Florida in an amount equal to one percent (1%) of the Board's estimate of the total volume of the contract. The School Board shall provide the estimated contract amount to the vendor within 72 hours excluding Saturdays Sundays legal holidays and other days during which the School Board administration is closed of receipt of notice of intent to protest. The estimated contract amount shall be established on the award recommendation as the "contract award amount." The estimated contract amount is not subject to protest pursuant to [section 120.57(3)]. The bond shall be conditioned upon the payment of all costs which may be adjudged against the protestant in an Administrative Hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond the School Board may accept a cashier's check official bank check or money order in the amount of the bond. If after completion of the Administrative Hearing process and any appellate court proceedings the School Board prevails the School Board shall recover all costs and charges which shall be included in the Final Order or judgment including charges made by the Division of Administrative Hearings but excluding attorney's fees. Upon payment of such costs and charges by the protestant the bond shall be returned. If the protestant prevails then the protestant shall recover from the Board all costs and charges which shall be included in the Final Order or judgment excluding attorney's fees. Section 3 of the ITB states as follows at Special Condition 1: INTRODUCTION AND SCOPE: The School Board of Broward County Florida (hereinafter referred to as "SBBC") desires bids on REFUSE SERVICES for solid waste removal as specified herein. Prices quoted shall include pick up at various schools departments and centers within Broward County Florida. Section 4 of the ITB states as follows at Special Condition 3: AWARD: In order to meet the needs of SBBC Bid shall be awarded in its entirety to one primary and one alternate responsive and responsible Bidders meeting specifications terms and conditions. The lowest Awardee shall be considered the primary vendor and should receive the largest volume of work. Therefore it is necessary to bid on every item in the group and all items (1-58) in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on the Bid Summary Sheet. SBBC reserves the right to procure services from the alternate Awardee if: the lowest Bidder cannot comply with service requirements or specifications; in cases of emergency; it is in the best interest of SBBC. After award of this bid any Awardee who violates any specification term or condition of this bid can be found in default of its contract have its contract canceled be subject to the payment of liquidated damages and be removed from the bid list and not be eligible to do business with this School Board for two years as described in General Conditions 22 and 55. Section 4 of the ITB states as follows at Special Condition 7: ADDING OR DELETING SITES: SBBC may during the term of the contract add or delete service wholly or in part at any SBBC location. When seeking to add a location SBBC shall request a quote from both Awardees. The lowest Bidder shall receive an award for the additional location. If additional service is requested for an existing site already receiving service the current service provider will be contacted to provide a new quote based on the pricing formula submitted in response to this ITB or a subsequent quote. Section 4 of the ITB states as follows at Special Condition 11: RECEPTACLES: The Awardee shall furnish receptacles in good repair. . . .The Awardee shall furnish any and all equipment materials supplies and all other labor and personnel necessary for the performance of its obligations under this contract. Design of all equipment is subject to the approval of the Manager Energy Conservation Utility Management or his designee and must be replaced upon notification without additional cost to SBBC. DESCRIPTION: All receptacles used for solid waste referenced in Group 1 on the Bid Summary Sheets and the Tamarac location listed in Section 5 Additional Information unless otherwise indicated shall be provided by the Awardee at no additional cost. Bin receptacles shall be provided for SBBC use in the cubic yard capacities as indicated on the Bid Summary Sheets. Receptacles shall be bin-type units steel or plastic lift-up lids NO SIDE DOORS unless specifically requested for 8 cu. yd. fitted for automatic loading on casters where necessary for chute operations. (Receptacles not on casters must have a 6" – 12" clearance from ground to bottom of bin for easy cleaning underneath.) TWO AND THREE YARD CONTAINERS: It will be necessary for The Awardee to supply the two (2) and three (3) yard containers to hold compacted refuse at a ratio of approximately 4:1. These containers are designed for front-end loading. THESE UNITS ARE IDENTIFIED ON THE BID SUMMARY SHEET BY A SINGLE ASTERISK (*) NEXT TO THE CONTAINER SIZE. Section 4 of the ITB states as follows at Special Condition 20: SMALL IN-HOUSE COMPACTION UNITS(approximately two yards): The following schools have in-house compaction units which will need to be provided by the Awardee. Waste is compacted at an approximate ratio of 3:1. Collins Elementary Oakridge Elementary Sheridan Hills Elementary Section 4 of the ITB states as follows at Revised Special Condition 14: PRICING – ALL INCLUSIVE COST GROUP 1 ITEMS 1– 58: Bidder shall submit fixed monthly costs where indicated on the Bid Summary Sheets for each location based on 4.33 weeks per month. (This number is derived by dividing 52 weeks by 12 months). Monthly costs stated shall be an all-inclusive cost for providing receptacles refuse removal and disposal including but not limited to all necessary labor services material equipment taxes tariffs franchise fees maintenance and applicable fees. SBBC agrees to pay the Broward County Disposal Adjustment (tipping fees) in effect at the time. Increases to this fee will be paid as assessed by Broward County. Any decreases in these rates shall be passed on to SBBC as well. No bid specification protest was filed by any person concerning the original ITB or Addendum No. 1. Nine companies submitted timely responses to the ITB. Each bidder submitted a monthly bid and an annual bid. The School Board thereafter ranked the respective bids. Intervenor was the apparent low bidder with a monthly bid of $39,576 and an annual bid of $474,918.38. All Service was the apparent second low bidder with a monthly bid of $40,540.90 and an annual bid of $486,490.80. WSI was the apparent third low bidder with a monthly bid of $47,671.71 and an annual bid of $572,060.52. Petitioner was the apparent fourth low bidder with a monthly bid of $50,177.73 and an annual bid of $602,132.76. On November 2, 2011, the School Board's Purchasing Department posted the agency's intended recommendation for award of the ITB. The intended decision was (A) to award to Intervenor as the primary vendor for Group 1 (1 through 58); and (B) to award to All Service as the first alternate for Group 1 (1 through 58). On November 4, 2011, Petitioner timely filed its Notice of Protest with the School Board's Purchasing Department. On November 14, 2011, Petitioner timely filed its Formal Bid Protest with the School Board's Purchasing Department and delivered the required bid protest bond. The School Board formed a Bid Protest Committee that met with Petitioner on December 19, 2011, to consider Petitioner's formal written protest in accordance with section 120.57(3)(d)(1) and School Board Policy 3320. The parties were unable to resolve the protest by mutual agreement and the School Board sent Petitioner a notice of non-resolution of dispute. Section 1 of the ITB precludes a bidder from withdrawing its bid within 90 days of its submission to the School Board. At the time of the formal hearing 106 days had passed since the submission of bids. No bidder, including Intervenor, has indicated that it committed an error in calculating its prices submitted under the ITB or asked the School Board to excuse it from the prices it offered under the ITB. To the contrary, Intervenor's counsel represented at the formal hearing that Intervenor was standing by its bid. Generally, compacted waste is heavier and more expensive to dispose of than non-compacted waste. The ITB identifies the number and size (in cubic yards) of the receptacles to be placed at each location and the number of pick-ups per weeks to occur for each receptacle. The ITB also informs the bidders whether a receptacle was compacted or non-compacted. If compacted the ITB set forth the ratio of compaction. Bidders were also asked to bid a monthly cost and any applicable fees charged by the facility receiving the waste to arrive at total monthly cost for each receptacle to be furnished. The bidders were required to provide a total monthly bid for the services and a total annual bid for the services. The bidders were to use the information set forth in the ITB to calculate their bids. Petitioner asserts that the bids submitted by Intervenor, All Service, and WSI were not responsible bids because those bids failed to factor in the higher costs of disposing of waste that had been compacted. Petitioner contends that the reference to compaction ratios constitute specifications by the School Board to require all bidders to calculate their pricing utilizing the compaction ratios. Petitioner describes the referenced compaction ratios as "multipliers" that needed to be used by the bidders in calculating their prices for handling and disposing of compacted waste. Petitioner is seeking to impose its interpretation of the ITB as requiring each of the bidders to calculate its bid using the same pricing methodology that Petitioner employed. There is no ambiguity in the ITB, and there is no factual basis to conclude that all bidders were required to prepare their bids in the same fashion as Petitioner. There is nothing set forth in the ITB that required the School Board to interpret its reference to the compaction ratios as being a specification of a "multiplier" for pricing as opposed to a description of the capacity of the receptacles to be used at each of the school locations. At no point is the word "multiplier" used in the ITB to specify that the bidders were required to engage in mathematics involving multiplying their prices against some unit price the bidders were specifying in their bids. The ITB specifies the frequency with which the varying container sizes needed to be picked up at each of the 58 schools with the weight or volume of the container not being a factor in setting the specification of how often the container is to be picked up by the awardee. No adjustments were to be made to the prices paid by the School Board based on the weight of the container when removed. The School Board did not specify in the ITB that a bidder was required to charge the same monthly cost at each school for a similarly-sized refuse container nor did the School Board require different pricing for compacted waste as compared to non-compacted waste. Petitioner's assertion that the bidders were required to use those ratios as a multiplier when bidding on the cost of disposing of compacted waste is rejected as being contrary to the plain language of the ITB. The compaction ratios were provided to the bidders as information only. There is no requirement that a bidder use a particular methodology in determining its bid amounts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Broward County Florida enter a Final Order that adopts the findings of fact and conclusions of law contained herein, dismisses the protest filed by Petitioner Ace Waste Services LLC, and upholds the award of the procurement to Choice as primary awardee and to All Service as alternate awardee. DONE AND ENTERED this 20th day of March 2012, in Tallahassee Leon County Florida. S 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 20th day of March 2012.
Findings Of Fact Some time before May 15, 1992, the Petitioner, Executive I & II, Inc., applied for licensure to operate as an adult congregate living facility (ACLF). (It had been, and is still, operating as a licensed boarding home.) The exact date of the application, or how long before May 15, 1992, the application was made, is not clear from the evidence. The facility operated by the Petitioner is the same facility that was the subject of Division of Administrative Hearings (DOAH) Case Nos. 90-3356 and 90-3791. Before and during the pendency of those proceedings, the facility was owned and operated by Kriscour, Inc., d/b/a Executive I & II. Kriscour, Inc., is a separate legal entity from the Petitioner. The sole owner and operator of the Petitioner was the sole owner and operator of Kriscour, Inc., until October 10, 1989, when he became a 49% owner of Kriscour and ceased all involvement in the operation of the facility. Throughout, however, he owned the real property operated by Kriscour and by the Petitioner. In DOAH Case No. 90-3356, HRS sought to revoke Kriscour's conditional ACLF license. While it was pending, Kriscour applied for renewal of the license, and HRS denied renewal. Kriscour initiated formal administrative proceedings, which became DOAH Case No. 90-3791. The two cases were consolidated at DOAH. Ultimately, they resulted in an HRS Final Order denying the renewal application and "cancelling" the conditional license. Kriscour appealed the Final Order to the District Court of Appeal, Second District of Florida, where it was given Case No. 91-00751. Kriscour obtained a stay of the Final Order and continued to operate the facility as an ACLF during the appellate proceedings. Meanwhile, on or about November 26, 1991, the Petitioner, Executive I & II, Inc., was formed and became licensed to operate the facility as a boarding home. The Petitioner made extensive renovations and improvements to the physical plant. At the same time, Kriscour continued to operate the facility as an ACLF. Ultimately, the appellate court upheld the Final Order. The court's Mandate, which operated to dissolve the stay, was entered on January 2, 1992. On or about that date, Kriscour ceased to operate the facility as an ACLF and began operating the facility as a boarding home. To date, the Petitioner has operated the facility exclusively as a boarding home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying the application of the Petitioner, Executive I & II, Inc., for licensure to operate as an ACLF. RECOMMENDED this 21st day of October, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of October, 1992.
The Issue The issue to be resolved in this proceeding involves whether the Respondent's certification to practice contracting should be subjected to disciplinary action for alleged violations of Section 489.129(1), Florida Statutes, and, if the violations are proven, what, if any, penalty is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with enforcing, administering, and regulating the practice standards and licensure standards for the construction industry in Florida. This authority is embodied in the various provisions of Chapters 489, 455, and 120, Florida Statutes, and rules promulgated pursuant thereto. The Respondent is a licensed general contractor in the State of Florida having been issued license number RG0060516 and is registered to conduct contracting business in his individual capacity. On July 2, 1990, a contractor, Lonnie J. Walker, notified the Building Department of the City of Tallahassee that he had withdrawn as contractor for a job located at 722 Dunn Street, in Tallahassee, Florida. He thereupon withdrew the building permit he had obtained for the work being performed at those premises. On August 8, 1990, the Respondent contracted with Mary N. Spencer, the owner, to make certain repairs at the two-unit apartment building located at 722 Dunn Street, Tallahassee, Leon County, Florida. The contract price agreed upon between the Respondent and Ms. Spencer was $867.00. The Respondent thereupon performed some of the aforementioned contracting work, consisting of repairs of various types. He was not registered to contract in Leon County, Florida, however. The Department of Growth and Environmental Management of Leon County, Florida, is responsible for issuing construction contractor licenses for the County, including for the City of Tallahassee. There was no proper building permit issued for the job and job site when the Respondent entered into the contracting work at those premises. The Respondent failed to obtain a permit for the repairs and this ultimately came to the attention of the City of Tallahassee Building Department. That agency issued a stop work order on September 5, 1990. The Respondent was not performing work pursuant to Mr. Walker's previous permit, which had been withdrawn. The Respondent was not an employee of Lonnie J. Walker, the previous general contractor for the job. The Petitioner agency submitted an affidavit after the hearing and close of the evidence, with its Proposed Recommended Order. That affidavit asserts that the Petitioner accumulated $458.10 in investigative costs and $2,491.30 in legal costs associated with the prosecution of this case, for a total alleged cost of prosecution of $2,949.40. It moves, in its Proposed Recommended Order, that payment of the costs should be made in accordance with Section 61G4-12.008, Florida Administrative Code. The request for costs was first raised as an issue in the Proposed Recommended Order submitted by the Petitioner and is advanced only in the form of a hearsay affidavit. No prior motion for costs served upon the Respondent is of record in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Construction Industry Licensing Board finding the Respondent guilty of the violations charged in the Administrative Complaint and assessing a penalty in the form of a letter of guidance and an aggregate fine of $600.00, as described with more particularity hereinabove. DONE AND ENTERED this 9th day of March, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 10th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-591 Petitioner's Proposed Findings of Fact 1-8. Accepted. Respondent's Proposed Findings of Fact Respondent submitted no post-hearing pleading. COPIES FURNISHED: G.W. Harrell, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Julius S. Baker, Sr. Box 253 Morrow, GA 30260 Mr. Richard Hickok Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway Suite 300 Jacksonville, FL 32211-7467 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue Whether the Petitioner's application for licensure as a yacht and ship salesman should be approved or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency responsible for licensing and regulating yacht and ship brokers and salespersons in Florida. Section 326.003, Florida Statutes (1997). On July 28, 1998, the Division received an application for a yacht and ship salesperson's license from Richard Badolato. Question 13 on the application solicits information of the applicant's criminal history as follows: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the laws of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. Your answer to this question will be checked against local and state records. Failure to answer this question accurately could cause denial of licensure. After Question 15 of the application, the following statement appears in bold type: "If your answer to question 13, 14, or 15 is Yes, attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." Mr. Badolato answered Question 13 in the affirmative, and he signed the application, thereby certifying that "the foregoing information is true and correct to the best of my knowledge and belief." Mr. Badolato did not provide the statement of particulars which must be submitted by those answering Question 13 in the affirmative. In a letter dated July 28, 1998, the Division notified Mr. Badolato that his application was incomplete and that he should, among other things, provide a complete written explanation of his criminal history. In response to this letter, Mr. Badolato provided a signed statement in which he stated: "I was arrested and charged with possession of marj. in 1981." Mr. Badolato also provided a telephone number on the statement, indicating that he could be contacted at that number if the Division had any questions. Pursuant to the provisions of Section 326.004(15), the Division issued a 90-day temporary license to Mr. Badolato, pending completion of the criminal history analysis that is done on all applicants by the Florida Department of Law Enforcement. The Division subsequently received a report from the Federal Bureau of Investigation which revealed that Mr. Badolato had three drug-related felony convictions, as well as an arrest on June 22, 1977, which resulted in a charge of possession of marijuana with intent to distribute. On August 24, 1981, Mr. Badolato was convicted in federal district court in Brunswick, Georgia, of conspiracy to smuggle marijuana; he was sentenced to ten years in prison and ordered to pay a $30,000 fine. On October 23, 1981, Mr. Badolato was convicted in federal district court in Miami, Florida, of conspiracy to distribute cocaine; he was sentenced to thirty months in prison, to run consecutively with the ten-year sentence in the Georgia case. On January 31, 1989, Mr. Badolato was convicted in federal district court in Maryland of conspiracy to distribute marijuana; he was sentenced to thirty-six months in prison, to run concurrently with any sentence imposed for a violation of parole. Mr. Badolato was released from prison in 1991 and successfully completed parole in December 1996 with respect to the 1989 conviction. In late 1997, Mr. Badolato received a letter advising him that he might be eligible for clemency. An attorney acting on behalf of Mr. Badolato filed an application for clemency with the Florida Parole Commission. Although Mr. Badolato has never seen this application, he assumes that the file developed during review of the application contains complete information regarding his criminal history.2 When the Division received the Federal Bureau of Investigation report, Peter Butler, head of the Division's general enforcement section, contacted Mr. Badolato by telephone, read to him the statement in the application quoted in paragraph 4 above, and asked him if he wanted to amend his application. Because he could not remember the exact dates of his three felony convictions, Mr. Badolato responded by referring Mr. Butler to the Clemency Board if Mr. Butler wanted to obtain further information about Mr. Badolato's criminal history. Mr. Badolato acknowledged in his testimony that he should have been more thorough in completing his application for licensure, that he was lazy and stupid for not being more forthcoming in the application, and that he did not intend to mislead the Division. He believed that, by answering "Yes" to Question 13 and admitting that he was arrested and charged with possession of marijuana in 1981, he had provided enough information to alert the Division that he had a criminal history. He also assumed that it would be very easy for the Division to obtain complete information about his background merely by running a computer check and by reviewing the information in his clemency application file. From 1991, when he was released from prison, until December 1998, Mr. Badolato was involved in the restaurant business in a managerial capacity, and, as part of his duties, he handled large sums of money. No money in his care was ever found missing, and no adverse employment actions were taken against him during this time. In addition, during the time he was on parole, Mr. Badolato periodically submitted to random drug-testing and never failed a test. The evidence presented by Mr. Badolato is not sufficient to establish that he is of good moral character. He admitted in his answer to Question 13 on the application that he had been convicted of a felony, yet he included in the statement which he filed as part of the application a vague, incomplete, misleading, and inaccurate reference to an arrest and charge of possession of marijuana in 1981.3 Furthermore, Mr. Badolato certified by his signature on the application form that the information he provided was "true and correct to the best of [his] knowledge and belief," when he was certainly fully aware that he had three separate felony convictions. Mr. Badolato presented evidence of his good employment history subsequent to his release from prison in 1991, his successful termination of probation, and his faithful payments on the $30,000 fine imposed in 1981, all of which tend to show rehabilitation and good moral character. However, Mr. Badolato's failure to include in his application complete and accurate information regarding his criminal history tends to show lack of rehabilitation and lack of good moral character. On balance, Mr. Badolato's failure to disclose in his application his complete criminal history outweighs the evidence he presented to show rehabilitation and good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Land Sales, Condominiums, and Mobile Homes, enter a final order denying Richard Badolato's application for licensure as a yacht and ship salesperson. DONE AND ENTERED this 16th day of August, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 16th day of August, 1999.
The Issue Whether the Respondent, Allan Williams, P.E., and Allan Williams, P.E., d/b/a ABW Engineering (Respondent or Williams), committed the violations alleged in the Administrative Complaint dated November 15, 2013, and, if so, what penalty should be imposed.
Findings Of Fact Allan B. Williams is a licensed engineer fully authorized to do business in Florida. Respondent's recognized and legally sufficient name to do business is "Allan B. Williams, P.E." On or about August 20, 2002, Respondent filed a fictitious name application with the Florida Department of State, Division of Corporations (DOS), that represented Allan B. Williams sought to do business under the fictitious name "ABW Engineering." Subsequently, the fictitious name was renewed on March 28, 2007, and was valid through December 31, 2012. On or about May 29, 2013, Respondent again filed the requisite papers with DOS to establish "ABW Engineering" as a fictitious name, with an active status expiration date of December 31, 2018. It is undisputed that Allan B. Williams, the subject of this case, is the person who established ABW Engineering with DOS. In 2007, Petitioner cited the Respondent with practicing engineering through a business entity that was not properly authorized to do business in Florida. In response to that claim, Respondent acknowledged that he did business as ABW Engineering and stated, in part: I didn't know I needed one. In all the years I practiced in Washington, D.C., Maryland and Virginia I never needed one. The only time I can remember this being a requirement, is, if you are a corporation home based outside these states and jurisdiction and you wish to do business in these states and jurisdiction, then you have to pay a "foreign corporation" tax or fee. It was my impression that Certificate of Authorization was the same as a foreign corporation fee. In further response to the 2007 dispute, Respondent filed the appropriate paperwork and paid the required fees to obtain a Certificate of Authorization for ABW Engineering (No. 27462) with Allan B. Williams, P.E., identified as the registered principal officer for the company. The licensure date for ABW Engineering was May 3, 2007. The letter announcing the approval of the Certificate of Authorization for ABW Engineering contained the following provisions: Your Certificate of Authorization will expire February 28, 2009. A notice of renewal will be mailed to the address of the business thirty (30) to forty-five (45) days prior to the expiration date. * * * In accepting this registration, you assume the responsibility of complying with the requirements of Chapter 471, Florida Statutes and Chapter 61G15, Florida Administrative Code. Allan B. Williams, P.E., did not timely renew the Certificate of Authorization for ABW Engineering when it expired on February 28, 2009. From March 1, 2009, through May 8, 2013, Allan B. Williams, P.E., did business under the letterhead and logo of ABW Engineering. Respondent used the letterhead and logo on billing for engineering services rendered by Allan B. Williams, P.E. On or about May 8, 2013, Petitioner issued a Notice to Cease and Desist to ABW Engineering. That notice provided, in pertinent part: Our records show that you do not currently have a certification as required by section 471.023, FS. If the above facts are true, they establish probable cause for FBPE to believe you are violating Florida law by offering ENGINEERING SERVICES without the required license or certification. On May 23, 2013, Respondent wrote a letter in response to the Notice to Cease and Desist that provided: Certificate of Authority has never been uppermost in my mind. Why? For over thirty five years I have always received constant reminders to complete my courses in continuing education and to renew my PE license. Not once have I received reminders about renewing my Certificate of Authority. And so Certificate of Authority becomes obscure in comparison to the other licensing requirements. Think about it. For your PE you have to satisfy educational requirements at an accredited school of Engineering; you have to work for four (4) years doing progressively challenging engineering work which prepares you to take the PE exams; you have to pass the exams and then you get your PE License. Then every two (2) years you have to pass continuing education courses. For Certificate of Authority you fill out a form and you pay $255. I don't think any Engineer would purposely avoid paying a $255 fee and risk losing thousands of dollars in earnings. It slipped my mind—I forgot it—I apologies [sic]. On June 10, 2013, Respondent received a Certificate of Authorization for ABW Engineering. On September 18, 2013, Petitioner notified Respondent that the Board was issuing a citation based upon the allegations previously disclosed to Respondent: that ABW Engineering had offered engineering services during a period of time when it was not properly certified or authorized to do business. Under the terms of the citation, Respondent was given the option of paying the penalty calculated pursuant to Florida Administrative Code Rule 61G15-19.0071 ($5,000.00) or having the case prosecuted pursuant to section 455.225, Florida Statutes (2013).1/ Respondent chose the latter. At hearing, Respondent maintained that he did not do business as ABW Engineering, but as Allan B. Williams, P.E. That claim was not deemed persuasive in light of the totality of evidence that established Respondent routinely used the ABW Engineering letterhead and logo, was listed in the telephone and other directories as ABW Engineering, and billed for engineering services with the logo and name. Moreover, Respondent admitted that using "ABW Engineering" was a strategy to secure work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order finding Respondent in violation of offering engineering services through a fictitious name that did not have a valid Certificate of Authorization, imposing an administrative fine in the amount of $5,000.00, awarding the costs of prosecution against Respondent, and reprimanding Allan B. Williams, P.E., as the registered general officer of ABW Engineering. DONE AND ENTERED this 2nd day of September, 2014, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 2nd day of September, 2014.
Findings Of Fact The following findings of fact are made based upon a stipulation entered into by all parties on the record: S & L Property Managements, Inc., Intervenor, was the lowest bidder for lease number 590:1651 by between approximately $84,000 and $105,000, exclusive of moving costs, over the basic five year term of the lease. There is no evidence that Intervenor's facility (Howard Building) is structurally unsound, and in fact the Department of Health and Rehabilitative services, Respondent, procured an engineering report which showed Intervenor's facility to be structurally sound. Both Intervenor's and Southmark Management Corporation's, Petitioner's, bids on this lease met all bid requirements. Both were qualified bidders for award of this leased except for Petitioner's objection and contention that bidders were required to include present value calculations with their bids, which Petitioner did but Intervenor did not. Intervenor agreed with Respondent that if it received this award, it would renovate the leased space in its facility to meet Respondent's reasonable requirements. There is no issue regarding the conformity of Intervenor's bid with handicap design requirements. Preaward documents, memoranda and correspondence from Respondent only recommended that Petitioner be awarded this lease and did not advise Petitioner it had been awarded the lease. Robert Brady, Respondent's Director of General services, was the person who was to make the final decision concerning the award of this lease. Prior to the award of the lease to Intervenor, Brady determined that the Department of Corrections, present tenant in Intervenor's facility was satisfied with its occupancy, and also that the leased space would meet bid specifications. Petitioner chose to leave its bid open, even though it could have withdrawn its bid after the expiration of the thirty day period following the bid opening. Both Petitioner and Intervenor took actions and expended sums of money in the expectation of being awarded the lease. Intervenor acted after being advised it had been awarded this lease. There is no allegation by Petitioner that the award of this lease to Intervenor was made on the basis of any improper influence exerted upon or by Respondent by any of the bidders, or by any other person. Respondent delayed the award of this lease beyond thirty days after the bid opening. The following findings of fact are made based upon the evidence presented: Petitioner and Intervenor timely submitted bids in response to Respondent's Invitation to Bid on lease number 590:1651 which was for 12,312 square feet of space for the Office of Disability Determination in Tampa, Hillsborough County, Florida. The Office of Disability Determination had been a tenant in Petitioner's facility for six years, and continues to occupy space in Petitioner's facility until this bid protest is resolved. Since approximately October 1984 Respondent has not had a written lease with Petitioner for its present space despite repeated efforts by Petitioner to obtain an executed lease from Respondent. Bids which were received were evaluated by a three person committee composed of Respondent's employees familiar with the space needs of the Office of Disability Determination. The evaluation criteria, or award factors, were set forth in the Invitation to Bid. Rental rate over the basic term of the lease was weighted twice as heavily as any of the other eleven (11) criteria. Upon its initial review, the committee recommended that the award be made to Petitioner, and Leonard Polinsky, Property Manager for Petitioners was informed of this recommendation. Based upon a 100 point scaled Petitioner's initial evaluation was from .2 to 2 points higher than Intervenor's. Polinsky assumed that the actual award was a mere formality, and therefore expended approximately $700 for preliminary architectural sketches of lease space renovations. This initial evaluation committee recommendation was based, in part, on its concerns about the structural soundness and maintenance of Intervenor's facility. Petitioner did not know who would actually make the award on behalf of Respondent or what the authority of the evaluation committee was. Petitioner did not object to Respondent's delay of this award beyond the thirty-day time period called for in the Invitation to Bid, and suffered no harm as a result of this delay. The delay was caused by Respondent's investigation of the structural soundness of Intervenor's facility, as well as the experience of its present tenants. Following completion of this investigation, the evaluation committee met again, reevaluated the bids, and recommended Intervenor be awarded this lease. Respondent, through Robert Brady, determined that the award should be made to Intervenor after completing its investigation, reviewing the committee's reevaluation of bids, and being satisfied that this award would be in the best interests of the state. This decision was based primarily on the following factors: After investigation, no structural or maintenance problems were found to exist, which had been initial concerns of the committee. Intervenor was low bidder for the lease over the five year term of the lease. Both bids were responsive and met all bid requirements. Intervenor's facility was shown to be structurally sound and suitable for Respondent's needs. Intervenor's failure to include present value calculations of the rental rate in its bid did not disqualify it since bidders were not required to include these calculations. Respondent routinely did its own calculations of present value on each bid.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order awarding lease number 590:1651 to Intervenor. DONE and ENTERED this 15th day of November 1985, at Tallahassee Florida. Hearings Hearings DONALD D. CONN, Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 15day of November 1985. APPENDIX (DOAH Case No. 85-3158BID) Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 13. Rejected as a Finding of Fact but included in introductory material. Rejected as simply a statement of position. Adopted in part in Finding of Fact 14. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 9, 12, 16. 8-9. Adopted in part in Finding of Fact 13, otherwise rejected as irrelevant and unnecessary. 10-11. Adopted in part in Finding of Fact 14, otherwise rejected as irrelevant and not based on competent substantial evidence. Rejected as unnecessary and irrelevant. Adopted in part in Finding of Fact 14. 14-16. Rejected as simply a statement of position and argument in support of Petitioner's position. 17. Adopted in Finding of Fact 1. 18-19. Adopted in part in Finding of Fact 14, but rejected in part in Finding of Fact 17. Rejected as simply a statement of position and argument thereon. Rejected in Findings of Fact 14, 17 and otherwise not based on competent substantial evidence. Adopted in part in Findings of Fact 2, 8 but otherwise rejected as simply a statement of position and argument thereon. Rulings on Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 13. 2-3. Rejected as irrelevant and unnecessary in light of Findings of Fact 6, 7, 17. Adopted in Finding of Fact 14. Adopted in Finding of Fact 6. Adopted in Finding of Fact 14. Adopted in Finding of Fact 17. 8-12. Rejected as irrelevant, unnecessary and cumulative. 13. Adopted in part in Finding of Fact 14. 14. Adopted in Finding of Fact 1. 15. Adopted in Finding of Fact 2. 16. Adopted in Finding of Fact 3. 17. Adopted in Finding of Fact 4. 18. Adopted in Finding of Fact 5. 19. Adopted in Finding of Fact 6. 20. Adopted in Finding of Fact 7. 21. Adopted in Finding of Fact 8. 22. Adopted in Finding of Fact 9. 23. Adopted in Finding of Fact 10. 24. Adopted in Finding of Fact 11. 25. Adopted in Finding of Fact 12. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 18. Rulings on Intervenor's Proposed Findings of Fact: 1-2. Rejected as a conclusion of law and otherwise unnecessary. 3. Adopted, as to the first sentence; in Finding of Fact 17, otherwise rejected as simply a statement of position. 4-5. Rejected as simply a statement of position. Adopted in Findings of Fact 1-12 with the exception of proposed finding 6(k) which the transcript does not reflect as part of the stipulation, but which is adopted in Findings of Fact 14, 15, 17. Adopted in Finding of Fact 13. 8-10. Adopted in Finding of Fact 14. Rejected as simply a summary of testimony. Rejected as simply a summary of testimony, and otherwise cumulative and unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. 16-18. Adopted in Finding of Fact 16. 19. Rejected as irrelevant and unnecessary. 20-21. Adopted in part in Finding of Fact 17, but otherwise rejected as cumulative. 22-26. Rejected as cumulative and unnecessary. COPIES FURNISHED: William E. Powers, Jr., Esquire Post Office Box 11240 Tallahassee, Florida 32302 David P. Gauldin Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 Joseph A. O'Friel Esquire 100 Twiggs Street Tampa, Florida 33602 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301
The Issue Whether DOT should grant petitioners' permit applications, or any of them, in light of the spacing requirements and other provisions laid down by Chapter 479, Florida Statutes (1987) and Chapter 14-10, Florida Administrative Code?
Findings Of Fact As a segment of State Road 89, Stewart Street in Milton is a federal aid primary highway which is open to traffic." (T. 54) On June 8, 1977, Salter's agent certified an application for an outdoor advertising sign permit for a sign facing north on the east side of Stewart Street at a point 0.8 miles north of U.S. Highway 90. DOT approved the application, and mailed the permit, No. 6038-2, on October 5, 1977. Salter's Exhibit No. 1. The permitted structure had been built in January of 1964, Salter's Exhibit No. 1, on land Etta Hicks leased to Salter. Salter's Exhibit No. 2. The lease was never recorded. On April 15, 1982, Salter's agent certified an application for outdoor advertising sign permits for signs facing north and south on the east side of Stewart Street at a point 0.8 miles north of U.S. Highway 90, perhaps pertaining to a replacement for a structure for which application (for a single sign) had been made some five years earlier. DOT approved the application as to both sign faces on May 11, 1982, assigning a single permit number: AH 031-2. Salter's Exhibit No. 1. Continuously until May 15, 1987, since permit No. AH 031-2 issued, Salter had renewed it by making timely, annual payments of renewal fees for two, not three sign faces. Stipulation (T.20) Efforts DOT has undertaken since 1984 to eliminate duplicate permits have not met with complete success. (T. 97) As late as October of 1987, DOT's billing records reflected that the north facing sign had permit No. AH 31-2, while the sign facing south had permit No. 6038-2. Salter's Exhibit No. 6. On May 15, 1987, after David Andrew Sandifer had asked Salter two or three times to do so, Salter removed the structure from where it had stood five or ten years. Stipulation. (T. 31) Only one sign face was attached when the structure came down. Mr. Sandifer had acquired the property from Haward Hanna, a kinsman of Etta Hicks, in October of 1986, after Mrs. Hicks' demise. Slightly more than 1,000 feet south of the sign Salter removed stands another outdoor advertising sign owned by Salter. Also on the east side of Stewart Street, it is 0.51 miles north of U.S. Highway 90, and has DOT Permit No. AT 852-25. Designs Custom's Applications On May 5, 1987, DOT's district office in Chipley received Designs Custom's applications for outdoor advertising permits for signs facing north and south at a location on Mr. Sandifer's property about 15 feet east of Stewart Street, 0.7 miles north of U.S. Highway 90. Designs Custom's Exhibit No. 1. Phillip Mitch Brown, an outdoor advertising inspector in DOT's employ, consulted a computer compilation, which indicated that Salter still had a permit for north and south facing signs at a location in close proximity and on the same side of the road as the site Designs Custom's applications proposed for new signs. In fact, what Salter's original applications designated as 0.8 miles north of U.S. Highway 90 was essentially the same place Design Custom's applications denominated 0.7 miles north. DOT returned Designs Custom's applications and application fee along with a memorandum dated May 22, 1987, in which it indicated "SIGN SITE DOES NOT MEET SPACING REQUIREMENTS." DOT'S Exhibit No. 4. On May 28, 1987, DOT received a letter from Mr. Sandifer, dated April 21, 1987, and addressed "To Whom This May Concern." (T. 81) The letter stated that Mr. Sandifer "[d]id not [have] or intend to have a lease," Designs Custom's Exhibit No. 4, with Salter and asked that "necessary procedures to have this sign removed," id., be employed. As a result, on May 29, 1987, Jack F. Culpepper, wrote Salter on behalf of DOT, as follows: Re: Loss of Land Owner Permission Dear Mr. Salter: This office has received information to the effect that you no longer have permission from the land owner to erect or maintain signs at the following listed locations. If, in fact, this information is true and correct, the permits issued for these sites are invalid pursuant to Section 479.07(7), F.S. Permit Number AHO 2, located on the East side of SR 87, 0.8 miles North of US 90, Santa Rosa County, Sign facing North. You are hereby notified that the Department's determination of invalidity will become conclusive and the subject permit(s) revoked unless you elect to challenge this action by requesting an Administrative Hearing pursuant to Section 120.57, Florida Statutes, within thirty (30) days from receipt of this letter. The request should be addressed to: Clerk of Agency Proceedings, Department of Transportation, 605 Suwannee Street, Tallahassee, Florida 32301 In the interim, if you can furnish documentary evidence of current permission from the present property owner to refute this information, it may be possible to resolve this matter without a hearing. Salter's Exhibit No. 3. This letter made no reference to permit No. 6038-2, or to a sign facing south at the same location. Salter never requested an administrative hearing in response to DOT's letter of May 29, 1987. DOT's Exhibit No. 1. Salter's Competing Applications Salter entered into a lease agreement with Nathan T. Butcher on June 8, 1987, authorizing Salter to erect signs east of Stewart Street, and south of Dixon Avenue on property Mr. Butcher owned only a few feet south of the site Mr. Sandifer had agreed to lease to Designs Custom. Salter's Exhibit No. 4. On June 16, 1987, Salter completed applications for outdoor advertising sign permits for signs facing north and south on the site leased (subject to DOT's approving Salter's permit applications) from Mr. Butcher, 0.69 miles north of U.S. Highway 90. Salter's Exhibit No. 5; DOT's Exhibit No. 3. As part of its application, Salter executed an affidavit directing DOT to cancel sign permits Nos. 6038-2, AH 031-2 and AT 852-25, this last for the sign on Stewart Street 0.51 miles north of U.S. Highway 90. Salter made cancellation contingent on approval of its applications for permits to erect signs on the Butcher property. After DOT communicated its intention to deny Salter's application on account of pending administrative proceedings on Designs Custom's applications, DOT's Exhibit No. 5, Salter requested an administrative hearing on the proposed denial of its own applications, reiterating, "We hold permits AT 852-25, 6038-2, AH031-2 that we request to cancel and relocate to .69 n. of U.S. 90 on S.R. 87." Designs Custom's Exhibit No. 5. Another Approach About one week before the final hearing, Salter obtained Mr. Hanna's permission to place signs on property Mr. Hanna retained when he sold the parcel to Mr. Sandifer. The bite Mr. Hanna has agreed to let Salter use for signs lies due east of where the sign Salter removed from the Sandifer property stood.
The Issue Whether the Respondent committed the following acts on the five contracting jobs set forth in the Amended Administrative Complaint: Gross negligence, incompetence, and/or misconduct. Financial mismanagement or misconduct. Failure to properly supervise contracting activities he was responsible for as qualifying agent. Job abandonment on all five construction projects. Aiding and abetting an unlicensed contractor to engage in the contracting business. Engaging in a contracting business under a name not on his license and not qualified with the state.
Findings Of Fact At all times material to these proceedings, the Respondent, Raymond Robert Suarez, was licensed as a certified general contractor in Florida, and held license number CG C0011988. The Respondent was the qualifying contractor for Suarez Brothers Construction Company. He was not registered with the Florida Construction Industry Licensing Board as the qualifying agent for Suarez Brothers of Pinellas, Inc. There were two shareholders in Suarez Brothers Construction Company: Frank B. Suarez and Raleigh Suarez. Corporate responsibilities were as follows: Frank B. Suarez, President Abdelia Arguelies, Vice President Raleigh Suarez, Secretary/Treasurer Raymond R. Suarez, Responsible Managing Employee and Qualifying Contractor The corporation was based in Hillsborough County, Florida. On or before February 24, 1987, a corporation was created known as Suarez Brothers of Pineilas, Inc. Craig O. Tennant became president and Joseph Scott Suarez became vice president. The corporation engaged in the construction business and built single-family residences in Pinellas County, Florida. The business was in the county adjoining Hillsborough County, where Suarez Brothers Construction had built homes for ten years and had gained a good reputation throughout the Tampa Bay area, including Pinellas County. The name of the new corporation with its base of operations in Pinellas County, was deceptively similar to that of Suarez Brothers Construction Company. The close resemblance of the name was intentionally misleading, as Suarez Brothers of Pinellas, Inc. attempted to benefit from the reputation for quality construction gained by Suarez Brothers Construction in which the father of Joseph Scott Suarez, Frank B. Suarez, was president and his brother, Raymond R. Suarez, was qualifying contractor. This is evidenced by the construction contract used by Suarez Brothers of Pinellas, Inc., written representations to building departments of a legal connection between the two companies, and the use of the name of the same qualifying contractor on applications for building permits. In the construction contract used by Suarez Brothers of Pinellas, Inc., it was represented that the company had been a Florida builder since 1949. The people actually engaged in building since 1949 were the father Frank B. Suarez, and the uncle, Raleigh Suarez. These two people were not members of the new company. On four of the five projects for which Suarez Brothers of Pinellas, Inc. had written contracts, the name Suarez Brothers Construction was given to the building departments as the contractor of record instead of the actual corporate name. Raymond R. Suarez was named as the contractor, and his contractor's license number was used on the applications for building permits for the five Suarez Brothers of Pinellas, Inc. contracts which are the subject of the complaint in this proceeding. There was no evidence presented at hearing to demonstrate that Raymond R. Suarez knowingly permitted his name and contractor's license number to be used by either the president or vice-president of Suarez Brothers of Pinellas, Inc. to obtain the building permits for the construction of the residence for Robert D. and Norma L. Ganoe (Case #0110319) or the construction of the residence for Reinhold and Monty Brooks (Case #0106921). On or about June 25, 1987, Suarez Brothers of Pinellas, Inc. contracted with James B. Hughes, Jr. to build a home for $190,000.00 at the following location: 9985 Lake Seminole Drive West, Largo, Florida. The building permit issued for the construction on September 29, 1987, was signed by Raymond Suarez, and his contractor's license number was given as the qualifying contractor for Suarez Brothers Construction of Pinellas on the Hughes project. On February 4, 1988, the contractor on the project was changed to Robert R. O'Andrea. Between September 29, 1987 and February 4, 1988, various subcontractors and materialmen hired by Suarez Brothers of Pinellas, Inc. to provide services or supplies on this job were not paid. Joseph Scott Suarez had been given the funds to timely pay the subcontractors and materialmen by James B. Hughes, Jr. and Wonzel M. Hughes, his wife. Joseph Scott Suarez misappropriated the funds entrusted to him as an officer of Suarez Brothers of Pinellas, Inc. by Mr. and Mrs. Hughes for his own use. As a result, $24,763.63 worth of subcontractors and materialmen's perfected liens were placed against the real property for services and supplies obtained during the time period Raymond R. Suarez was the qualifying contractor of record. Raymond R. Suarez did not have the liens removed from the property within thirty days after the date of such liens, nor has he attempted to have the liens removed at a later date. The Respondent, as qualifying contractor, knew or should have known that the liens were in existence and had been perfected. On or about August 10, 1987, Suarez Brothers of Pinellas, Inc. contracted with Richard and Linda Vozne to construct a home for $121,041.00 at the following location: 316 Seventh Avenue North, Tierra Verde, Florida. The permit for construction was issued by the Pinellas County Department of Building Inspection on December 12, 1987. Raymond Suarez signed the permit as contractor, and his contractor's license number was given as the qualifying contractor for Suarez Brothers Construction. On July 15, 1988, the contractor for the project was changed to Linda J. Vozne, one of the owners of the property. Between December 12, 1987 and July 14, 1988, claims of lien were filed and perfected against the Vozne project in the amount of $16,047.18 for supplies and services ordered while Raymond Suarez was contractor of record. Suarez Brothers of Pinellas, Inc. had received $10,000.00 front money to begin construction when the construction loan entered into by Richard and Linda Vozne with Barnett Bank of Pinellas County closed on November 13, 1987. One hundred three thousand dollars ($103,000.00) of the loan disbursements were made to the construction company by the bank before the owners removed it from the project. The funds disbursed to Suarez Brothers of Pinellas, Inc. were not used to pay the subcontractors who had performed work and provided supplies on the project, as required by the construction contract. They were misappropriated to another use not related to the Vozne construction project. Raymond R. Suarez did not have the liens removed from the property by payment within thirty days after the date of such liens, nor has he attempted to have them removed at a later date. The Respondent, as qualifying contractor, knew or should have known that the liens were in existence and had been perfected. On or about October 28, 1987, Suarez Brothers of Pinellas, Inc. contracted with Keith A. Phillips to build a home for $134,621.00 at the following location: 5944 Bayview Circle South, Gulfport, Florida. The application for a building permit from the City of Gulfport was dated December 22, 1987, and was signed by Raymond R. Suarez. The contractor was designated as "Suarez Brothers" and the Respondent's license number was given as the qualifying contractor on the Phillips project. In September 1988, Suarez Brothers of Pinellas, Inc. was terminated as the project contractor by Keith Phillips and Cynthia S. Phillips, his wife, although no changes were made in the public records of Gulfport. Between October 28, 1987 and September 1988, the company did not complete construction in a timely manner. Pursuant to contract, the project was to be completed within 182 days. No additional periods of time were granted by the owners to the contractor and none were requested. During the period of time Raymond R. Suarez was the qualifying contractor on the Phillips project, eleven thousand one hundred fifty-three dollars and twelve cents ($11,153.12) worth of subcontractor and materialmen liens were perfected as they were not paid by the construction company. The funds to pay for the materials and labor which resulted in the claims of lien had been paid to Suarez Brothers of Pinellas, Inc. by the bank making regular disbursements under the construction loan procured by Mr. and Mrs. Phillips for that purpose. Suarez Brothers of Pinellas, Inc. did not use these funds for their intended purpose and misappropriated them to another use not related to the Phillips construction project. The supplies or services for which the liens were perfected had been ordered by Suarez Brothers of Pinel1as, Inc. for this customer's job. Raymond R. Suarez did not have the liens removed from the property by payment within thirty days after the date of such liens, nor has he attempted to have the liens removed at a later date. The Respondent, as qualifying contractor, knew or should have known that the liens were in existence and had been perfected. Since the alleged incidents of misconduct by Raymond R. Suarez, he has not renewed his contractor's license which remained valid until June 1989. The Hearing Officer was not made aware of any aggravating or mitigating circumstances relating to the charges in the Amended Administrative Complaint at final hearing.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Raymond R. Suarez be found not guilty of the alleged violations set forth in paragraphs four, six and seven of the Amended Administrative Complaint. That Raymond R. Suarez be found guilty of having violated Section 489.129(1)(h), Florida Statutes, based upon the misconduct alleged in paragraph five of the Amended Administrative Complaint, and be ordered to pay a $1,500 fine as the assessed penalty under Rule 21E-17.001(10), Florida Administrative Code. That Raymond R. Suarez be found guilty of having violated Section 489.129(1)(e), Florida Statutes, based upon the misconduct alleged in paragraph eight of the Amended Administrative Complaint, and be ordered to pay a $1,500 fine as the assessed penalty under Rule 21E-17.001(13), Florida Administrative Code. That Raymond R. Suarez be found guilty of having violated Section 489.129(1)(g), Florida Statutes, based upon the misconduct alleged in paragraph nine of the Amended Administrative Complaint, and that a letter of guidance be issued for his misconduct, pursuant to Rule 21E-17.001(1), Florida Administrative Code. DONE and ENTERED this 14th day of January, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 14th day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4260 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #1. Rejected. Irrelevant. See HO #9. Accepted, except for the liens against the property for services and supplies placed upon the project after Suarez Brothers of Pinellas, Inc. was taken off the project. See HO #25 - #33. Accepted, except monetary amount of liens on project for servicesand supplies placed after the company was terminated, if any, were not considered. See HO #17 - #24. Rejected. Irrelevant. See HO #9. Accepted, except for liens against the property for services and supplies p1aced on the property after the contractor was changed, if any. See HO #10 - #16. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Raymond R. Suarez 904 Terra Mar Drive Tampa, Florida 33613 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Mr. and Mrs. Reinhold Brooks 6117 - 94th Avenue North Pinellas Park, Florida Mr. and Mrs. Keith Phillips 5944 Bayview Circle Gulfport, Florida Mr. and Mrs. Richard Vozne 316-7th Avenue North Tierra Verde, Florida Mr. and Mrs. Robert Ganoe 10503 - 100th Street North Largo, Florida Mrs. and Mrs. James B. Hughes, Jr. 9985 Lake Seminole Drive West Largo, Florida
