The Issue Whether the Department of Transportation properly denied Petitioner’s permit application for a proposed outdoor advertising sign to be erected adjacent to US 98, 0.817 miles west of State Road 87, in Santa Rosa County, Florida, pursuant to Chapter 479, Florida Statutes.
Findings Of Fact On April 3, 1998, Lamar submitted an application for new sign permits for a proposed outdoor advertising sign along US Highway 98, 0.817 miles west of State Road 87 in Navarre, Santa Rosa County, Florida (new permits) to DOT. The new permits were to be located within 2000 feet of existing permitted signs for which Lamar already possessed permits (the existing permits). The existing permit numbers were AE682-6 and BL256-35. Santa Rosa County’s Land Development Code Section 8.07.00 provides that no off-premise advertising sign, such as involved here, can be located within 2000 feet of any other off-premise sign on the same side of the street right-of- way. Since Lamar's existing permitted sign and the proposed location of the new permitted sign was within 2000 feet of each other, Lamar wished to cancel the existing permits conditioned upon the approval of the new permits. The practice is known as conditional cancellation. Prior to and during 1998, DOT had an established non- rule policy of conditional cancellation for existing sign permits. Conditional cancellation could occur when applying for new permits that would potentially conflict with existing permits. An applicant could simultaneously submit a cancellation certification for the existing permits together with the application for new permits. The old permits would not be canceled until new permits were issued. The exact process for requesting a conditional cancellation was not shown to be uniform throughout the state. However, the policy of allowing conditional cancellations to be made by permittees was accepted statewide. The policy and process for conditional cancellation are now codified in Rule 14-10.004, Florida Administrative Code, after the application in this case had been processed. In this case and in conjunction with the submission of Lamar's new permit application, Lamar submitted a copy of the cancellation certification for its existing permitted signs to the regional District Three DOT office in Chipley, together with its application for the new permits. Simultaneously, on April 3, 1998, Lamar submitted the original cancellation certification to the central office of DOT. The instructions on the certification of cancellation require the cancellation form to be submitted to the Tallahassee office of DOT. Neither the cancellation form nor letter from Lamar indicated that the cancellation was conditional. There was no place on the form to make such an indication. Lamar had been following the above-filing practice when requesting conditional cancellation since 1995. Because of its practice Lamar believed that it had properly notified DOT that cancellation of its existing permits was conditioned upon approval of its application for new permits. Lamar never considered that one office of DOT might not know what occurred at another office of DOT or that one office of DOT might not communicate with another office of DOT. On the other hand, the regional office of DOT in Chipley only recognized that an applicant had requested a conditional cancellation of existing permits when the original and not a copy of the cancellation form was submitted with the application for new permits. Lamar was unaware of the distinction between the filing of an original cancellation form with its application and the filing of a copy of the cancellation form with its application. More importantly, this distinction was not a rule and does not appear to have been communicated to anyone save the officials at the Chipley office of DOT. Consequently, Lamar relied on its established practice when seeking a conditional cancellation. A practice that DOT had recognized on earlier conditional cancellations by Lamar. Lamar reasonably believed, based on its previous experience with the policy of conditional cancellation, that existing permits would not be cancelled until the new permits were granted. Shortly after the filing of Lamar’s application, District Three returned Lamar's permit application without action because it was incomplete. The application was not considered filed by DOT because it was incomplete and the entire application package, including the copy of the cancellation form was returned to Lamar. The application was not logged into the Department’s computer. The Chipley office, even though it knew the old permits were to be cancelled, did not notify the Tallahassee office of the return of Lamar’s application or the lack of approval of that application. On April 7, 1998, the Tallahassee office of DOT processed the cancellation form it had received from Lamar on the existing permits. The existing permits were cancelled and the cancellation was logged into the Department’s computer. Because the Department did not follow its policy of conditional cancellation on which Lamar had relied for a number of years and the Department had knowledge of Lamar’s application for new permits which clearly conflicted with the cancelled permits, the existing permits should not have been cancelled and should have remained in effect since the application had not been approved by DOT. The fact that the knowledge resided in different offices of DOT is irrelevant. On April 10, 1998, Bill Salter Advertising (Salter) submitted an application for sign permits. The proposed sign would be located 0.36 miles west of State Road 87 on the same side of US 98 as the existing permit location for Lamar. The Salter permits would be within 2000 feet of Lamar’s existing permits and not be approved by DOT if the existing Lamar permits were still in effect. On May 6, 1998, Lamar resubmitted its complete application for the new permits. Upon inspection of the site for Lamar’s new permits, it was discovered that a spacing conflict existed with the Bill Salter application site. On May 10, 1998, DOT tentatively denied Salter’s application for incorrect information on the sketch of the site it had submitted with its application. On May 28, 1998, Salter amended its application with a corrected site sketch. By letter dated June 5, 1998 the Department advised Lamar that its application would be held pending resolution of the prior application filed by Salter. On June 26, 1998, DOT granted Salter’s application. On July 6, 1998, permits BU595-55 and BU596-55 were issued to Salter. On August 26, 1998, DOT denied Lamar’s applications. The denial was based on Section 479.15, Florida Statutes, which prohibits DOT from granting a permit which would conflict with a county ordinance such as the Santa Rosa County Land Development Code sign spacing requirements. No other basis for denial of the subject permits exists.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Transportation reinstate the Lamar Advertising Company’s existing permits AE682-6 and BL256-35. DONE AND ENTERED this 7th day of October, 1999, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 1999. COPIES FURNISHED: G. R. Mead, II, Esquire Clark, Partington, Hart, Larry Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Pensacola, Florida 32591-3010 Sheauching Yu, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The central issue in this case is Petitioner's challenge to part III of the licensure examination as set forth in his letter dated September 8, 1994.
Findings Of Fact Petitioner, Robert E. Rosser, is a candidate for licensure as a general contractor. Petitioner has taken the examination to become a licensed general contractor consecutively over the last four years. As a result of the twelve attempts at the examination, Petitioner has passed parts I and II on two separate test dates. In his attempts to pass the examination Petitioner has enrolled in and studied for the examination with two approved construction schools. Petitioner scored a 68 on part III of the general contractor's examination for the June 16, 1994 test date. Petitioner timely challenged questions related to part III (Project Management) of the general contractor's examination given on June 16, 1994. Petitioner attended a review session and claimed that as to question 2 his scratch sheet from the examination demonstrates he had used formulas properly and that he had inadvertently marked the incorrect response on the answer grid sheet. The minimum score required to pass part III of the examination was 70. For each of the challenged questions in part III (2, 4, 7, 9, 11, 17, 18, and 20) Respondent presented competent evidence to support the correct answer as scored by the Department. The Petitioner did not present credible evidence to dispute the accuracy of the answers which had been deemed correct by the Department. Based upon those answers, the Petitioner's score sheet was tabulated correctly. The questions challenged were clearly and unambiguously worded and contained sufficient factual information to reach a correct answer. The examination was open book and applicants were allowed to use reference materials. All current techniques were considered before the correct answer was chosen. All knowledge needed to reach a correct answer was within a candidate's expected range of expertise. The Department's scoring of part III was not arbitrary, capricious, or devoid of logic. For each of the challenged questions, the correct answer was scored at a higher percentage than the answers marked by Petitioner. In fact, for question 4, for example, 79 percent of the examinees scored the correct answer while only 3 percent marked the same answer as Petitioner.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business and Professional Regulation, Bureau of Testing enter a final order dismissing Petitioner's challenge to the general contractor's examination. DONE AND RECOMMENDED this 23rd day of January, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 23rd day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5214 Rulings on the Petitioner's proposed findings of fact: Petitioner did not number the paragraphs denoted as "STATEMENT OF FACTS AND FINDINGS". The lettered paragraphs are addressed as listed; but where no letter identified the paragraph, the rulings are as to the paragraphs in the order of presentation. Paragraph [A] is accepted. Paragraph [B] is accepted to the extent it identifies Petitioner as a candidate otherwise rejected as not supported by the weight of the credible evidence. Petitioner's citation to Rule 21E-16.005 is an error. It is accepted that the minimum passing grade for the challenged part is 70 percent out of 100 percent. Paragraph [C] is accepted in substance; however, Petitioner's citation to Rule 21E-16.003 is an error. The next paragraph is rejected as contrary to the weight of the credible evidence. The next paragraph is accepted as a correct statement of procedural review. The next paragraph is rejected regarding question 4 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 7 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 9 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 11 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 17 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 18 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 20 is rejected as not a statement of fact or contrary to the weight of the credible evidence. Paragraph [D] is accepted as statement of procedural information but is not supported by the evidence. Paragraph [E] is accepted as statement of procedural information but is not supported by the evidence. The next paragraph is merely an address for the Department and is not a statement of fact. Paragraph [F] is accepted as statement of procedural information but is irrelevant. Paragraph [G] is accepted as statement of procedural information but is irrelevant. The next paragraph is merely an address for the Division and is not a statement of fact. Paragraph [H] is accepted as statement of procedural information but is irrelevant. Paragraph [I] is accepted as statement of procedural information but is irrelevant. Paragraph [J] is accepted as statement of procedural information but is irrelevant. Paragraph [K] is rejected as contrary to the record in this case since an order of prehearing instruction was not entered in this case and interrogatories were not served. Paragraph [L] is rejected as irrelevant, not a statement of fact, and contrary to the record. Moreover, Petitioner's scratch sheets have been received as Petitioner's exhibit 1. Paragraph [M] is rejected as argument or contrary to the weight of credible evidence. Paragraph [N] is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph [O] is rejected as contrary to the weight of credible evidence. Paragraph [P] is rejected as contrary to the weight of credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 4 through 11 are accepted. Paragraph 1 is accepted as statement of procedural information. Paragraph 2 is accepted as to the substance but is not a statement of relevant fact. Paragraph 3 is accepted as to the substance but is not a statement of relevant fact. COPIES FURNISHED: Robert E. Rosser P.O. Box 560541 Miami, Florida 33256-0541 William M. Woodyard Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0750 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Richard Hickok Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-6310
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.
The Issue Whether Florida Administrative Code Rule 61D-4.002 constitutes an invalid exercise of delegated legislative authority?
Findings Of Fact Petitioner is the owner and holder of a pari-mutuel permit that authorizes it to conduct quarterhorse racing at Hialeah Park, in Miami-Dade County. Petitioner is subject to chapter 550, Florida Statutes and the administrative rules promulgated thereunder in Florida Administrative Code Chapter 61D. The Florida Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering is the state agency charged with regulating pari-mutuel wagering, pursuant to chapter 550, Florida Statutes, and the administrative rules promulgated thereunder in chapter 61D. Petitioner applied for the issuance of a summer jai alai permit pursuant to the Statute. Pursuant to the Statute, in a county in which there are five or more pari-mutuel permitholders, if one permitholder in the county has the lowest total pool for two consecutive years, the permitholder can convert its permit to a summer jai alai permit. Further, if the qualifying permitholder elects not to convert its permit, a new summer jai alai permit is made available in that county. There are more than five pari-mutuel permits issued in Miami-Dade County. Petitioner had the lowest pool among all permitholders in Miami-Dade County for fiscal years 2010/2011 and 2011/2012. Therefore, pursuant to the Statute, Petitioner had the right to convert its permit to a summer jai alai permit. Petitioner declined to do so, and instead applied for the issuance of the summer jai alai permit made available pursuant to the Statute as a result of its election not to convert. The Department maintained that no permit was available to be issued. However, the First District Court of Appeal3/ and Third District Court of Appeal4/ have both ruled that a summer jai alai permit is available to be issued for 2012 (Permit). Thereafter, the Division denied Petitioner's application for the Permit, applying the Rule and determining that issuance of the Permit to Petitioner would not preserve and protect the pari-mutuel revenues of the State, and that Petitioner does not reflect a prospective permitholder that would enjoy potential profitability from the issuance of the Permit. On November 11, 2014, Petitioner filed a Petition for Formal Administrative Hearing giving rise to the instant proceeding. In the Petition, Petitioner also contended that even if the rule is valid, the Department erred in its application of the Rule to deny the Permit.5/ In 1996, the Department undertook the rule promulgation process as outlined in chapter 120 to adopt rule 61D-4.002 for "Evaluating a Permit Application for a Pari-Mutuel Facility." The Rule identifies sections 550.0251(4), 550.054(8)(b), and 550.1815(5), Florida Statutes, as rulemaking authority. The Rule identifies sections 550.0251, 550.054, 550.0951, 550.155, and 550.1815, Florida Statutes, as the specific law to be implemented. Part (1)(a) of the Rule provides that the Department shall consider whether the applicant is potentially profitable. Part (1)(b) of the Rule requires the Department to consider whether the applicant would preserve and protect the pari-mutuel revenues of the state. Parts (1)(c) and (d) of the Rule require the Department to consider the holdings, transactions, and investments of the applicant and whether there exists any judgment or current litigation against the applicant. At hearing, counsel for the Department advised that the Department has previously applied the Rule to the Statute on at least two occasions, when West Flagler Associates applied for summer jai alai permits pursuant to the Statute.
Findings Of Fact These Findings of Fact are based on the undisputed facts asserted and agreed to by the parties in the course of the motion hearing. Petitioner, the Cone Corporation (Cone), was the low bidder in a bid letting for Project No. 29170-3418, on December 2, 1987. The Department of Transportation (DOT) rejected all bids because they exceeded the estimate of DOT for the project. Cone did not file a protest of DOT's decision to reject all bids and relet the project. DOT relet Project No. 29170-3418 on June 6, 1988. Cone submitted a bid which was third lowest, with Jasper Construction Company (Jasper) being the low bidder. Cone's bid was higher than the one it submitted in the first letting. Jasper's bid in the second letting was higher than Cone's bid in the first letting, which had been rejected by DOT. DOT posted its intent to award the project to Jasper on June 6, 1988. Cone timely filed its Formal Protest on June 16, 1988. Cone is not asserting that either Jasper or the second low bidder are not responsive or responsible. Cone is asking either 1) that its low bid in the first letting be considered in the second letting and that it then be considered the low bidder or 2) that DOT reject all bids again and relet the bid a third time. The apparent basis for Cone's second argument is that if all bids were unacceptably high in the first letting and if Jasper's bid in the second letting is higher than Cone's bid in the first letting, then it stands to reason that Jasper's bid and all bids on the second letting are also higher than DOT's estimate and should be rejected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order dismissing the Formal Protest filed by the Cone Corporation. DONE and ORDERED this 8th day of July, 1988, 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 8th day of July, 1987. COPIES FURNISHED: Bruce A. Campbell Senior Litigation Attorney Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 W. Crit Smith, Attorney at Law Post Office Box 1695 Tallahassee, Florida 32302 Kaye N. Henderson, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
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
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
