The Issue Whether Petitioner is entitled to reimbursement for expenses incurred in relocating and reestablishment of his small business pursuant to section 421.55, Florida Statutes (2009),1/ as implemented by Florida Administrative Code Rule 14-66.007, which, in turn, incorporates by reference the provisions of 49 Code of Federal Regulations Part 24, Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-Assisted Programs (effective October 1, 2006),2/ and the Florida Department of Transportation Right of Way Manual 9.3.15, and, if Petitioner is entitled to reimbursement, the amount owed to him.
Findings Of Fact Based on the evidence and witnesses' testimony, the undersigned found the following facts: The Department is the state agency that has responsibility for paying certain relocation and reestablishment expenses of businesses that have been displaced because of a public transportation project. See § 421.55, Fla. Stat. Sometime in 1999 to 2000, Mr. Carey purchased eight rental units in Hillsborough County, Florida, as an investment property. Mr. Carey managed the rental property and testified that he would advertise vacancies through "word of mouth." The record shows that these rental units were rented weekly and included written and verbal leases. In 2005, the Department informed Mr. Carey that his rental property would be subject of an eminent domain taking and informed Mr. Carey about the law authorizing the Department to pay certain expenses in relocating and reestablishing a small business. On December 6, 2005, Mr. Carey filled out a Business Survey Questionnaire for the Department, stating his desire to relocate his rental business. The Department acquired Mr. Carey's property on April 18, 2009. By mid July 2009, Mr. Carey contacted Mr. Nappi to determine whether or not he was still eligible to receive relocation and reestablishment reimbursement for his small business. Mr. Nappi determined that Mr. Carey remained eligible to apply for reimbursement and informed him of that fact. On August 28, 2009, Mr. Carey purchased a replacement property located at 19002 Apian Way, Lutz, Florida, for $300,000.00. The replacement property contained a house that had been the homestead property of the prior owner. Mr. Carey credibly testified that the purpose of purchasing this replacement property was "to get back into the rental business" and that he advertised the replacement property for rent by "word of mouth." Receipts introduced into evidence show that Mr. Carey began making repairs and purchasing materials as early as the first week in September. Mr. Carey testified, on cross-examination, that he could not remember the exact date when he listed the replacement property for sale, or the exact date when he entered into a contract for the sale of the replacement property. Mr. Carey testified that he would speculate that the contract for sale of the replacement property occurred in early October 2009. On October 15, 2009, Mr. Nappi went to the replacement property with Mr. Carey to review the work that Mr. Carey had already begun on the replacement property and to discuss the expenses eligible for reimbursement. In reviewing Mr. Carey's claimed expenses, Mr. Nappi found that the following expenses would be eligible for reimbursement: (1) the drywall work detailed in Exhibit A; (2) $561.00 worth of the receipts of materials purchased from Home Depot; and (3) the painting expenses detailed in Exhibit C. Mr. Nappi also testified that in reviewing the claimed expenses that Mr. Carey would be eligible for reimbursement of a portion of the replacement property's ad valorem taxes. According to Mr. Nappi, Mr. Carey would have been eligible to receive the difference of the amount of the property taxes between the acquired property and the replacement property in the amount of $849.56. The only expenses that Mr. Nappi identified as not being reasonable were for hauling away yard waste contained in Exhibit D. According to Mr. Nappi, the Department questioned the amount of the charges and determined that an appropriate amount would be $1,200.00 as opposed to the $2,450.00 sought by Mr. Carey. Consequently, the majority of the expenses claimed by Mr. Carey were eligible items for reimbursement. On November 4, 2009, the Department sent Mr. Carey a letter denying his eligibility to receive reimbursement for expenses in relocating and reestablishing his small rental business. The Department denied Mr. Carey's eligibility because the updated TRIM notice for the property tax, that Mr. Carey provided the Department, showed the replacement property was homestead property. Because the replacement property was homestead, the Department reasoned that Mr. Carey had not reestablished a small business. Mr. Carey informed Mr. Nappi that the replacement property was not homestead property and that the TRIM notice was wrong. In response, on November 9, 2009, Mr. Nappi wrote the Hillsborough County Tax Collector to determine whether or not Mr. Carey's replacement property was homestead property. On November 23, 2009, while the Department waited for a response from the Hillsborough County Tax Collector, Mr. Carey closed on the sale of the replacement property for $332,500.00. Mr. Carey did not inform the Department that the replacement property had been sold. In February 2010, the Hillsborough County Tax Collector informed the Department that the replacement property was not homestead. Also, the Department learned for the first time that Mr. Carey had sold the replacement property. After learning that Mr. Carey had sold the replacement property, Mr. Nappi contacted his supervisor Elbert Johnson (Mr. Johnson). Mr. Nappi informed Mr. Johnson that "it did not appear that the reestablishment status of the landlord had been in fact established[,]" and the claim would be denied. Mr. Nappi testified the Department attempted to determine whether or not Mr. Carey had reestablished his rental business by examining Mr. Carey's efforts to rent the replacement property. Mr. Nappi directed a right-of-way specialist for the Department to contact realtors, who were associated with the property, to determine if Mr. Carey had listed the property for rent; to contact the local newspaper to learn if the property had been advertised for rent; and to conduct an internet search of the property. According to Mr. Nappi, the realtor indicated that she was not aware of whether or not Mr. Carey listed the property for rent and learned nothing from the newspaper or internet search. Mr. Nappi admitted that the Department did not contact Mr. Carey to ask him about his efforts to rent the property. The Department did not contact Mr. Carey or ask him to provide any information about his efforts to rent the property. Consequently, the Department did not have before it any information concerning Mr. Carey's efforts as to "word of mouth" advertising of the property. Mr. Knight, the state administrator of Relocation Assistance, testified that asking Mr. Carey about his efforts to rent the property would have been helpful information to have in considering the reimbursement. However, Mr. Knight acknowledged that Mr. Carey's selling of the home prior to determination of whether or not he was entitled to reimbursement made the issue moot. In the Department's estimation, Mr. Carey had simply "flipped a house" and had not reestablished his business. On March 25, 2010, the Department informed Mr. Carey that it was denying his application for reimbursement because he was not eligible because he had not reestablished his small rental business at the replacement property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order affirming its denial of Mr. Carey's application for reimbursement of reestablishment expenses. DONE AND ENTERED this 28th day of February, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 28th day of February, 2011.
The Issue Whether Petitioners' rental property was licensed under Chapter 509, Florida Statutes (2003).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioners, Robert Meller, Jr., and Kristine M. Meller, were owners of a rental property (a house located at 4516 Bowan Bayou) in Sanibel, Florida. In addition, they owned a condominium in the same area. Respondent Cross held a valid real estate license at all times material to matters at issue. Respondent Cross had a business relationship with Petitioners, which antedated the purchase of the Bowen Bayou house as a result of being the leasing agent for a condominium association with which Petitioners were associated. Respondent DBPR is the State of Florida agency which represents the FREC in matters such as this matter. In January 2000, Petitioners purchased the house in Sanibel located at 4516 Bowan Bayou. On or about January 20, 2000, Respondent Cross mailed a Rental Property Management Agreement to Petitioners for the property located at 4516 Bowan Bayou, Sanibel, Florida. The parties to this contract were Petitioners and Properties in Paradise, Inc. Petitioner, Robert Meller, Jr., signed the contract and returned the contract to Respondent Cross. Petitioners maintain that the Rental Property Management Agreement was not signed by Petitioner, Robert Meller, Jr., and that his name is forged. He maintains that he entered into an oral agreement with Respondent Cross, individually, to manage the property. From the purchase of the house in January 2000 through April 2001, Petitioners received correspondence, including a monthly "owner statement" reflecting short-term rental income, commissions, and debits for maintenance, from Properties in Paradise, Inc., regarding all aspects of the business relationship contemplated by the Rental Property Management Agreement. By letter dated January 20, 2000, Petitioner, Robert Meller, Jr., authorized "Revonda Cross of Properties in Paradise as my agent in establishing telephone and electrical service and so forth for my property on Sanibel Island at 4516 Bowen's [sic] Bayou Road." Thereafter, Petitioners received correspondence from Respondent Cross relative to the subject property wherein she is identified as "Operations Manager, Properties in Paradise, Inc." During the relevant time period, Petitioners' property was rented at least 22 times; once for 17 days, four times for 14 days, once for nine days, thirteen times for seven days, and once for five days. The frequency and term of these rentals qualify for the statutory definition of a "resort dwelling" and transient rental dwelling. Properties in Paradise, Inc., listed the property located at 4516 Bowan Bayou in the list of properties it provided the Division of Hotels and Restaurants as licensed in accordance with Chapter 509, Florida Statutes (2005). In April 2001, Properties in Paradise, Inc., through an attorney, notified clients that it had effectively ceased doing business. At that time, Petitioners were owed $11,588.06, which went unpaid. Petitioners made a claim in July 2001, against Respondent Cross to recover their loss from the Florida Real Estate Recovery Fund. In October 2003, Petitioners' claim was denied by the Florida Real Estate Recovery Fund.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Department of Business and Professional Regulation, enter a final order denying Petitioners' claim for recovery from the Florida Real Estate Recovery Fund. DONE AND ENTERED this 21st day of February, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 21st day of February, 2006. COPIES FURNISHED: Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Robert L. Meller, Jr., Esquire Best & Flanagan, LLP 225 South 6th Street, Suite 4000 Minneapolis, Minnesota 55402-4690 Revonda Stewart Cross 1102 South East 39th Terrace, No. 104 Cape Coral, Florida 33904 Nancy B. Hogan, Chairman Florida Real Estate Commission 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent, Antiquers Aerodrome, Inc. (“Respondent”), properly revived its expired restrictive covenants and other governing documents in accordance with sections 720.403-407, Florida Statutes (2015).
Findings Of Fact Respondent is a Florida for-profit corporation that serves as the governing homeowners’ association for the single- family residential, “fly-in/fly-out” community, known as Antiquers Aerodrome. The community consists of 37 individual parcels and a common airplane runway, located near Atlantic Avenue, east of the Florida Turnpike, in Palm Beach County, Florida. Petitioners Nikorowicz and Byers are parcel owners in the community. Byers purchased his 2.2 acre parcel in October 2014. At that time, there was a 5,000-square-foot single-family home, 2,000-square-foot airplane hanger, and a 2,000-square-foot garage on the property. Since then, Byers has had some chickens and a honeybee colony operation on his property. Respondent’s restrictive covenants were recorded in the public records of Palm Beach County at OR Book 1651, Page 151, on April 21, 1968. The restrictive covenants have been amended and restated from time to time. By operation of the Marketable Record Title Act (“MRTA”), chapter 712, Florida Statutes, the restrictive covenants expired April 21, 1998. Sections 720.403-407 provide the mechanism by which a homeowners’ association, such as Respondent, may revitalize its restrictive covenants because they expired by operation of MRTA. In an effort to revitalize the expired restrictive covenants pursuant to the requirements of sections 720.403-407, Respondent prepared a Notice of Special Members’ Meeting, an Agenda, a Limited Proxy, and Instructions for Completing the Limited Proxy (“revitalization package”). The revitalization package was sent to each parcel owner on July 24, 2015. The revitalization package sent to the parcel owners failed to include Respondent’s most recent bylaws--the November 7, 2010, amended bylaws. Instead, Respondent included in the revitalization package its February 12, 1998, bylaws. By failing to include the November 7, 2010, amended bylaws in the revitalization package sent to the parcel owners, Respondent failed to comply with section 720.405(3). The notice of the meeting, included within the revitalization package, contained the name, address, and telephone number of each of the three members of the revitalization organizing committee. The notice advised each parcel owner of an upcoming special membership meeting on August 15, 2015, at which time each owner would vote on the revitalization of the expired restricted covenants, either in person at the meeting or by proxy. On July 30, 2015, Peggy Preiser, as a member of the organizing committee and secretary of the Board of Directors of Respondent, sent a follow-up e-mail to the parcel owners, reminding them of the upcoming meeting on August 15, 2015. This e-mail reiterated the purpose of the upcoming special meeting-- “for the purpose of voting to revitalize (restore) the Association’s Restrictive Covenants and Reservations as provided by Sections 720.403 through 720.407, Florida Statutes.” The e-mail also reiterated that the revitalization package had been distributed to all parcel owners in preparation for the August 15, 2015, special meeting and vote. The e-mail did not contain the name, address, and telephone number of each member of the revitalization organizing committee. Ms. Preiser, as a member of the organizing committee and secretary of the Board of Directors of Respondent, also posted on July 30, 2015, another notice of the special meeting at the front gate community bulletin board. This notice contained the same information as the e-mail Ms. Preiser sent to the parcel owners on July 30, 2015. As with the e-mail, the posting at the front gate did not contain the name, address, and telephone number of each member of the revitalization organizing committee. The e-mail sent by Ms. Preiser and the posting at the front gate were notices and documents provided by the committee to parcel owners to be affected by the proposed revived declarations. By failing to provide the name, address, and telephone number of each revitalization committee member in the e-mail and front gate notices, Respondent failed to comply with section 720.405(1).2/ The special meeting was held on August 15, 2015. A quorum was present with 26 of the total 37 lots represented in person or by proxy. Byers did not attend the August 15, 2015, meeting nor did he vote by proxy. Nikorowicz did not attend the meeting, but he voted by proxy against revitalization of the restrictive covenants. A majority of 19 votes were required for the revitalization of the restrictive covenants to be approved. At the meeting, the vote was taken on whether the expired restrictive covenants should be revitalized. The votes were tallied with 22 votes for revitalization and 4 votes against revitalization. Thus, a majority of the parcel owners were in favor of revitalization of the restrictive covenants. The voting results were certified by counsel for Respondent, revitalization of the restrictive covenants was approved, and the meeting was adjourned. Petitioners contend that the following proxies counted at the August 15, 2015, meeting in favor of revitalization of the restrictive covenants were invalid because the signers were not authorized to vote on behalf of the parcel owners. Petitioners’ position is without merit. John Lumley and Carol Lumley signed a proxy. Pursuant to a quit claim deed, they are trustees of the Carl J. Lumley Revocable Trust dated May 31, 2005, which owns the parcel. As trustees of the trust, John Lumley and Carol Lumley were authorized to sign the proxy. Mayda Balboa signed a proxy. Pursuant to a warranty deed, she is the trustee of the Daoud Family Irrevocable Trust, dated May 19, 2014, which owns the parcel. As trustee of the trust, Mayda Balboa was authorized to sign the proxy. Shireen Bower and William Bower signed a proxy. Pursuant to a quit claim deed, they are trustees of the William and Shireen Bower Trust, dated 2/22/2002, which owns the parcel. As trustees of the trust, William and Shireen Bower were authorized to sign the proxy. Mike Blake signed two proxies. Pursuant to a warranty deed, he is the trustee of the Mike Blake Revocable Trust under Agreement dated December 22, 1997, which owns the parcels. As trustee of the trust, Mike Blake was authorized to sign the proxies. Cecilia A. Walsh signed a proxy. She is a managing member of 6814 Skyline, LLC, which owns the parcel. As a managing member, Cecilia A. Walsh was authorized to sign the proxy. Daniel L. Trunk signed a proxy. Pursuant to a warranty deed, he is the trustee of the Daniel J. Trunk Trust Under Agreement dated July 26, 2013, which owns the parcel. As the trustee of the trust, Daniel L. Trunk was authorized to sign the proxy. Luis Claudia Maia Ferreira and Elaine Lignelli signed a proxy. Pursuant to a warranty deed, Luiz Claudia Maia Ferreira is the trustee of the Elaine Lignelli Irrevocable Trust dated September 28, 2012, which owns the parcel. As a trustee of the trust, Luiz Claudia Maia Ferreira had authority to sign the proxy. After achieving a majority vote in favor of revitalization of the restrictive covenants, Respondent submitted a package to DEO on September 28, 2015, seeking approval of the revitalization of the restrictive covenants (“DEO package”). The DEO package contained an affidavit executed by Ms. Preiser, as an organizing committee member and secretary of Respondent. The affidavit purported to comply with the requirements of sections 720.406(1)(a) through (f). The DEO package contained the full text of the proposed revived restrictive covenants, including any amendments thereto. The DEO package contained the Certificate of Incorporation of Respondent, together with any amendments thereto. The DEO package contained a graphic depiction of the affected properties in the community, and a legal description of each parcel and the affected properties within the community. The DEO package contained verification of: a) the written consents of the requisite number of the affected parcel owners approving the revived declaration; b) a Notice of Special Members’ meeting; and c) attendance and voting results. The DEO package contained the February 12, 1998, bylaws. The DEO package did not contain the November 7, 2010, amended bylaws. The November 7, 2010, amended bylaws were the current and relevant bylaws of Respondent and governed Respondent in 2015, before and after the submittal of the revitalization package and DEO package.3/ By failing to include the November 7, 2010, amended bylaws in the DEO package, Respondent failed to comply with section 720.406(1)(b). In sum, the revitalization and DEO packages were deficient because they failed to contain all of the required documents, namely, the November 7, 2010, amended bylaws. The e-mail and front gate notices prepared by Ms. Preiser were also deficient because they failed to contain the name, address, and telephone number of each organization committee member.4/ On November 5, 2015, DEO approved the revitalization of the restrictive covenants “and other governing documents.” The revitalized restrictive covenants were recorded in the public records of Palm Beach County, Florida, at OR Book 27945, Page 1431, on November 23, 2015.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order disapproving the revitalization of Respondent’s expired restrictive covenants and other governing documents. DONE AND ENTERED this 24th day of February, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 24th day of February, 2017.
Findings Of Fact On or about June 10, 1986 Petitioners submitted a conditional use application to Respondent for the package sale of beer and wine at 601 Bayway Boulevard, Bayside Subdivision No. 5, Lot 1, Black B, in Clearwater Beach, Florida. The property in question is zoned SC (beach commercial), and the alcoholic beverage designation being sought is 2 APS. Respondent has identified this conditional use application as C.U. 86-49. The Planning and Zoning Board denied Petitioners' application on August 5, 1986 by a vote of 4 to 2, and Petitioners timely filed this appeal. The subject property is the site of a convenience store which is surrounded by motels and commercial establishments such as a bank, restaurant and lounge, car rental agency and a miniature golf course. Another convenience store which sells alcoholic beverages for off-premises consumption is located within three blocks of the property in question. Robert E. Davis operated the convenience store on the subject property from 1977 to July, 1986 at which time Petitioners acquired their interest in the property and the convenience store. While Davis was operating the convenience store the package sale of beer and wine was allowed under a previously approved conditional use. However in accordance with Section 136.024(b), City of Clearwater Land Development Code, Petitioners were required to reapply for conditional use approval upon the change of business ownership of the subject property. Under Davis' management, the convenience store regularly closed at 11:00 P.M., but beginning approximately one month prior to Petitioners acquiring their interest in the store and the property, Davis began to keep the convenience store open twenty four hours a day. Petitioners have operated the store twenty four hours a day since it has been under their management. Public testimony was offered in opposition to Petitioners' application due to concerns about increases in noise, lights, traffic, loitering, trash and debris, and consumption of alcohol on the premises since Petitioners have acquired their interest. Petitioners concede that there was a problem with rowdyism and trash when they initially took over the convenience store, but state that these problems have been corrected. By letter dated August 5, 1986, Chief of Police Sid Klein confirmed a problem with young people gathering on the premises and stated that he did not feel approval of this conditional use would be compatible with the need of the neighborhood. However, little weight can be given to this exhibit since it is clearly hearsay, and relates solely to conditions existing several months ago when Petitioners had just acquired their interest in the subject property and convenience store. Petitioners are seeking to continue the package sale of beer and wine on the subject premises during authorized hours, as had been allowed for previous owners. This activity will clearly be compatible with other commercial businesses in the neighborhood, and with prior business conducted at this specific location. Although there were problems with trash and rowdyism on the premises in July and August, 1986, Petitioners have taken corrective action, and have committed to continued management improvements. The use in question is compatible with surrounding uses and complies with Respondent's land use plan. Acceptable ingress and egress is provided, and noise from the site will not diminish the use, enjoyment or value of the surrounding property. Petitioners are taking steps to reduce the glare to surrounding properties from motor vehicle lights. Sufficient parking area is provided on site, and the evidence does not establish that the sale of beer and wine at this location increases traffic in the area. This is an existing use which was allowed when Petitioners acquired their interest in the subject property. There was no evidence that Petitioners have sold, or will sell, beer and wine at the store beyond the legal hours for such sale, or that they have or will sell to minors.
The Issue Whether the Department of Transportation's intended action to reject all quotes and re-advertise Lease No. 550:0318 was illegal, arbitrary, fraudulent, or dishonest.
Findings Of Fact In October of 1999, the Department advertised for office space for use as the Toll Data Center - Audit Section, Office of Toll Operations (Toll Office) located in Broward County. The lease was clearly advertised as a negotiated lease. It was not advertised as a competitive bid lease. Under the negotiated lease process before letting any lease, the Department must submit to the Department of Management Services (DMS) a Request for Space Need (RSN) and Letter of Agency Staffing (LAS). From DMS the Department receives the authority to directly negotiate a lease for space under 5,000 square feet with prospective lessors. 1/ Consistent with procedure, the Department received approval of the RSN on October 18, 1999. Pursuant to statute, DMS has strongly suggested that prior to selection of the apparent successful lessor, the Department should obtain a minimum of three documented quotes for a lease that has not been competitively bid. The Department has consistently followed that suggestion in negotiated leases. Under special circumstances, where it is clear it is improbable that three quotes cannot be obtained, the Department may waive its requirement that three documented quotes be received. However, the agency must certify to DMS that attempts to receive the required number of documented quotes were unsuccessful and/or special circumstances exist to negotiate the lease with less than three quotes. In this case, no special circumstances exist. In an effort to obtain more than the minimum three documented quotes, the Department opted to advertise for lease space on the Internet. The Internet is utilized by the DMS, among other state agencies, to disseminate information provided in the RSN to the private sector. Additionally, the Internet site may also be used by the private sector to provide notice of space they have available for review by the agency seeking space. A total of three submittal packages were distributed for Lease No. 550:0318. Despite the Department's advertisement over the Internet, only two requests for quote submittal packages were received. Of the three quote submittal packages distributed, the Department received only one documented quote in response to the advertisement for the Toll Office. Atlantic Investment submitted a Quote Submittal Form to the Department in late October for office space in North Fort Lauderdale. Atlantic Investment became aware of the Department's advertisement for lease space from Sheldon M. Schermer, employed by Atlantic Investment as its real estate agent. Mr. Schermer learned of the Department's need for lease space from an advertisement placed on the Internet. On November 8, 1999, the Department informed Atlantic Investment via Sheldon M. Schermer, Real Estate Agent for Atlantic Investment, of the Department's intent to reject all quotes and re-advertise for Lease No. 550:0318. This decision was not arbitrary, capricious, fraudulent, or dishonest and well within the Department's discretion and procedures for negotiated leases. The basis for the decision was the Department's modification of the lease specifications pursuant to a recommendation by DMS to modify the lease space terms to hopefully generate more interest and more quotes. In a competitive negotiation, DMS was aware of agencies who modified leases and advertised as many as five times before three documented quotes were received. Moreover, the evidence showed that the Broward County commercial real estate market could easily generate three quotes for the space required by the Toll Office.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered dismissing the Petitioner's protest. DONE AND ENTERED this 14th day of April, 2000, 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 14th day of April, 2000.
The Issue Whether Petitioner's and Intervenor's protest should be sustained?
Findings Of Fact FCH is a Florida Corporation authorized to do business in the State of Florida. At all times material to this case, Leo Young, Sr., was president of FCH. FCH the bid protester herein, previously was under contract with the Respondent under a 1994-95 RFP. While the business relationship started in a collegial manner, over time disputes arose between FCH and the Respondent involving FCH's performance and course of dealings under the subject contract. The Respondent received several holder complaints about FCH's behavior. The parties attempted to work out these differences in good faith, though near the end of the relationship, communications did "break down" between the two. Despite these differences, there is no evidence that the Department allowed the contracting problems to interfere with the RFP or evaluation process. Nothing in the record suggests that the evaluators improperly, illegally, unfairly, arbitrarily, or discriminatorily exercised their reasonable discretion and judgment in scoring the proposals to the best of their ability based upon the specifications and requirements set forth in the RFP. On April 11, 1997, the Department issued and advertised RFP BF 12/96-97, "Request for proposal for auditing, processing, collecting and delivering of unclaimed property held outside the State of Florida." An offeror's conference, was held on the initial RFP. After the conference a revised RFP was developed and delivered to each potential offeror. The RFP required offerors by May 2, 1997, to file a letter of intent to submit proposals. Petitioner did not submit such a letter with the Department by the May 2 deadline. After May 2, 1997, the Petitioner attempted to submit written questions regarding the subject RFP to the Department. These questions were returned to FCH because of FCH's failure at that time to file a letter of intent by the May 2, 1997, deadline. On May 9, 1997, the Petitioner filed with the Department a Notice of Intent to protest the RFP specifications. On May 19, 1997, the Department and the Petitioner entered into a stipulation resolving the Petitioner's protest of the RFP specifications. As part of the stipulation, the Department extended the filing date for the Petitioner to file its letter of intent to submit a proposal in consideration for the Petitioner's withdrawing its protest of the bid specifications. As a consequence of the stipulation, Petitioner was permitted to participate in the RFP process and submit a proposal on the RFP. Four proposals were submitted to the Department by FCH, State Street, NAPPCO, and Florida Property Recovery Consultants. The RFP was titled "Request for proposal for auditing, processing, collecting and delivering of unclaimed property held outside the State of Florida." The purpose of the RFP is to hire contractors to locate abandoned property for the state by doing audits of out-of-state companies holding property considered abandoned pursuant to Chapter 717, Florida Statutes. The RFP contained the following provisions relevant to this case. WRITTEN QUESTIONS AND OFFEROR'S CONFERENCE * * * (b) Offeror's Conference Upon request by a prospective offeror, the Department shall conduct an offeror's conference in accordance with the calendar of events in Room 334 of the Fletcher Building, Tallahassee, Florida at 2:00 P.M. (EST). Please send meeting request to Andrew Grosmaire, Contract Manager, as listed on the cover of this RFP. The purpose of the conference is to provide additional clarification regarding written questions previously submitted by the prospective offeror. Attendance is not mandatory. EVALUATION OF PROPOSALS Evaluation Information The contract will be awarded to the offeror(s), at the sole discretion of the Department whose proposal(s) is determined to be the most advantageous to the Department as formulated by the rating sheet. Evaluation Process The Department will conduct a comprehensive fair, and impartial evaluation of proposals received in response to this RFP. The process to be followed is described in the following sections and is to be conducted in four phases: Phase I - Evaluation of Mandatory Requirements Phase II - Evaluation of Technical Proposals Phase III - Evaluation of Fee Schedule Phase IV - Evaluation of Phases I - III Evaluation Committee An Evaluation committee will be established to assist the Department in selecting a Provider for services set forth in this RFP. The Committee will have a minimum of three members and at least one member external to the Department. The Committee will be responsible for proposals evaluation including reference checks and other verifications. The proposal evaluators may require an on site demonstration of the offeror's ability to provide the services at a level commensurate with the proposal and the Department's needs. RFP Rating Sheet The RFP rating sheet which lists evaluation criteria and specific indicators of criteria will be used to assess the degree to which the offeror's response meets those criteria as identified in Section 13. These criteria and the specific indicators of the criteria will be weighted so that each response to the RFP can be numerically valued and ranked. Phase I - Evaluation of Mandatory Requirements The purpose of this phase is to determine if each proposal is sufficiently responsive to the RFP to permit a complete evaluation. The Contract Manager will review the proposals for the mandatory requirements. Any proposal failing to meet any of the mandatory requirements of this RFP will be disqualified. Phase II - Technical/Services Proposal References, Resources, Prior Experience, and Procedures Each offeror shall have all of the following minimum qualifications; sufficient experience, sufficient and competent resources to perform the services, and sufficient procedures to enable the provider to perform the services The Committee members will evaluate the RFP to enable the provider to perform the services. The Committee members will evaluate the RFP for content and feedback from references in determining the offeror's past experience/ability in providing the scope of services outlined in this contract. A maximum of ninety points (out of a total of 100 points) can be awarded. Failure to submit the minimum references will disqualify a proposal from further consideration. Phase III - Evaluation of Fee Schedules For each proposal received acknowledging the services outlined in this RFP, the corresponding Fee Schedule will be examined. All fee proposals must be expressed solely in the form of a percentage of the dollar amount of the property delivered or value thereof. A total maximum value of ten (10) points will be awarded (out of a total of 100 points) to the lowest proposed fee percentage submitted. A provider shall not submit a proposal in excess of 13 percent. All other proposals equal to 13 percent or lower will be awarded points based on the following formula: (Lowest percentage proposal\other proposer's percentage) x 10. Calculation of points awarded to other proposals will use the lowest percentage amount proposed as a constant numerator and the percentage amount of the offeror being scored as the denominator. The result will always be less than one (1.0). The ratio is then multiplied by the maximum number of points given to the fee schedule of the RFP. This formula only includes valid proposals. If the answer to the formula results in a number with decimals, the decimals will be rounded to the nearest whole number when awarding points for Phase III; .5 points will be rounded upward and less than .5 will be rounded downward. Phase IV - Evaluation of Phases I - III The Contract Manager will combine those points assigned by each committee member and average all scores to determine the offeror submitting the highest rated proposal. A minimum averaged score of 80 points must be obtained by the offeror. If the minimum score is not obtained, the offeror will be disqualified. SUBMISSION OF PROPOSALS Prospective offerors shall submit two clearly identified separate sealed packages (proposals) which will be opened and evaluated in two stages. PACKAGE #1 - Technical and Proposed Services This separate package marked "RFP BF 12/96-97, Technical and Proposed Services" shall contain one original and five copies of all responses to this RFP as identified in Section 13 below, other than the "Fee Schedule." PACKAGE #2 - Fee Schedule This separate package, identified as the "RFP BF 12/96-97, Fee Schedule" shall contain one original and five copies and which shall include the offeror's proposed bid for all services set forth in the RFP including any additional services over and above the minimum set forth by the Department in this RFP. The proposed cost shall be expressed as a percentage of the dollar amount of the property delivered or value thereof. Failure to submit the bid cost data in a separate package shall result in a disqualification of the offeror. Sealed proposals must be received by the Florida Department of Banking and Finance, Purchasing Office, Room 252-D, Fletcher Building, Tallahassee, Florida 32399-0350, on or before the date and time indicated in the section entitled "Calendar of Events." All proposals must be plainly marked on the outside of the package to indicate date and time of proposal opening and RFP number. Proposals shall be prepared simply and economically. The Department is not liable for any cost incurred by an offeror in responding to this RFP. DOCUMENTS REQUIRED IN SUBMITTING PROPOSAL The documents required in submitting the technical and services proposal package are identified below. These items identified are the minimum requirements acceptable by the Department. Any proposal which does not meet these requirements will not be considered. offeror must follow the proposed format outlined below. This will produce uniform formatting of proposals which ensures fairness in rating by the Evaluation Committee members in locating information quickly when questions arise. Each heading of the outline must be addressed and in proper order. The proposal should provide a complete and detailed description of the offeror's ability to meet the requirements of this RFP. Signed State of Florida Request for Proposal, Contractual Services, Form PUR 7033 (An original form is required.) The offeror must designate, in writing, the official spokesperson of their organization authorized to sign all applicable documents required in this RFP. The offeror shall designate the location of its office within the USA to be used during the duration of this contract. An offeror must provide evidence that the organization is a legal entity. Incorporated providers must provide as an attachment to the proposal either a copy of the corporation's most current annual report on file with the appropriate state agency, or, if incorporated during the past 12 months, a copy of the corporation's articles of incorporation and charter number assigned by the appropriate state agency. Businesses which are not incorporated must provide as an attachment to the proposal a copy of their business or occupational license. Partnerships shall submit documentation of compliance with the applicable provisions of Chapter 620, Florida Statutes. The proposal must include a notarized and sworn statement indicating that the offeror will comply with all of the terms and conditions stated in the RFP. The proposal must include a notarized and sworn statement indicating that the offeror has not had any prior involvement with this RFP. This contract is subject to Chapter 112, Florida Statutes, regarding conflict of interest. The proposal must include a notarized and sworn statement indicating the offeror does not have a conflict of interest described in this RFP or Chapter 112, Florida Statutes. The offeror must disclose the name of any State employee who owns, directly or indirectly, an interest of ten percent or more in the offeror's firm or any of its subsidiaries. No Department staff shall have any interest or receive any compensation, directly or indirectly, in the offerors firm or any of its subsidiaries. This shall be an ongoing requirement and failure to comply will subject the contract to cancellation. The offeror shall provide the following for its designated custodian as described in this RFP; name, address, contact person, telephone number, proof of licensure by applicable governmental agencies, and the account number where the funds will be deposited. The offeror shall provide a sample of the indemnification agreement to be used between the Department and the holder. The offeror shall provide a sample of the monthly work report detailing the number of examinations being performed for the Department and the status of each examination. The offeror shall provide a proposal on training the Department's staff and examiners in the field of abandoned property in the first year of this contract as described in this RFP. The offeror shall provide a proposal on hosting a holder seminar for the Department before April 1, 1998, as described in this RFP with details such as location, date, and time, duration, topics, guest speakers, etc. The offeror must either supply at least three (3) references showing the offeror has previously conducted abandoned/unclaimed property examinations pursuant to Chapter 717, Florida Statutes, or to any other state's abandoned/unclaimed property law or must demonstrate the ability to perform the services specified herein. The offeror shall provide a listing of the states, the contact person and their telephone where the offeror has a valid contract to perform similar services as described in this RFP. If there are no current contracts, please indicate. The offeror must include a list of organizations of which the offeror is a member that would promote compliance with Chapter 717, Florida Statutes and abandoned property laws throughout the United States. An example of organizations would include various stock transfer associations, corporate secretary chapters, UPHLC, NAUPA, etc. If there are no current memberships, please indicate. The offeror shall provide a written summary of the experience of the organization in examining holders for unclaimed property. The offeror must include a chart of the organization, indicating how its staff will fit into the total organization, and how each member of the staff will relate to one another. The offeror must include a resume/vita for each principal of the business who will perform professional services for the RFP. The offeror shall describe its experience in interpreting various state laws and case law relating to the unclaimed property including a resume/vita and a written summary of their counsel's legal experience in dealing with unclaimed property and/or Chapter 717, Florida Statutes. The offeror shall detail the procedure to be used in processing records from a holder once the records are received from the holder. The procedure shall include a process to ensure records are processed in a timely fashion. The offeror shall provide a written summary of the examination process to be used in examining for unclaimed property. The offeror shall provide an examination manual to be used in examining holders detailing the process of examining for unclaimed property. The offeror shall provide the procedures which will allow the Department to direct, coordinate, and participate in the examination of holders of unclaimed property holders as outlined in this RFP. The offeror shall describe its database and the ability to maintain a compatible database with the Department's database. The offeror must describe the security procedures to be implemented to ensure all personnel working in the examination process will maintain the security and confidentiality of examinations at all times. Within forty-five days of the execution of the contract, the Provider shall acquire a fidelity bond, financial guaranty bond, fidelity insurance, or other financial guaranty providing protection to the Department against theft, loss, or other illegal diversion of funds from an entity duly licensed in the State of Florida in the amount of $100,000 in a form acceptable to the Department. The offeror shall submit a separate package clearly identified as "Fee Schedule" and marked on the outside with the RFP number and opening date as described in the section entitled "Calendar of Events." The Fee Schedule shall be submitted in terms expressed as a percentage of the dollar amount of property delivered or value thereof. (emphasis supplied) As indicated, the RFP also contained an evaluation sheet for use by each evaluator, which categorized the areas of review and the point scoring applicable to each. Andrew Grosmaire, Financial Examiner Analyst Supervisor for the Abandoned Property section, was the contract manager for the Division. In that capacity, he was responsible for the principal drafting of the RFP for handling the logistics of the evaluation process and for completing the Phase I review of the proposals. Additionally, he had been the contract manager over FCH's current contract with the Department. In the past, Mr. Grosmaire had had numerous conflicts with FCH over some of FCH's practices. In fact Mr. Grosmaier considered some of FCH's practices to be unethical. The opinions held by Mr. Grosmaier are debatable depending on one's philosophy on how aggressive a business should be in auditing an entity. Additionally, Mr. Grosmaier believed FCH had submitted a false statement requesting payment for work it had performed. The issue was eventually forwarded by the Division for criminal investigation by the Department. In short, the relationship between Mr. Grosmaier and FCH was highly strained and was generally known throughout the Division. However, the evidence did not show that the low opinions of Mr. Grosmaire had any impact on the Department's RFP process. Mr. Grosmaire conducted the threshold determination of whether the proposals contained the minimum documentation required by the RFP and necessary to pass on to the evaluation stage. To that end, Mr. Grosmaire determined FCH and the other offerors met the RFP's threshold requirements. Mr. DeVries is the Bureau Chief for the Abandoned Property section. He was responsible for putting together the evaluation committee according to the terms of the RFP and the requirements of Florida Statues. Mr. DeVries decided to populate the evaluation committee with individuals outside the abandoned property section in order to diminish any bias arguments he anticipated would be raised as a result of prior disputes with FCH. Additionally, he wished to capitalize on certified public accounting and auditing experience held by individuals outside the abandoned property section. The intent was for the evaluators to be able to determine whether the offerors' proposals — in particular their manuals and methodology — met American Auditing Institute standards. Additionally, the Comptroller wished to have persons outside the agency participate in RFP evaluations. Therefore, at least one of the members of the evaluation committee would not be an employee of the Department. Up to the time of posting the award, The evaluation team utilized by the Department relative to the RFP consisted of the following individuals: Rick Sweet, a Financial Examiner with the Abandoned Property section of the Department of Banking and Finance. Bob Dearden, a Financial Administrator with the Department of Banking and Finance, Division of Accounting and Auditing, with a background in auditing. Richard Law, a certified public accountant and a member of the accounting firm, Law, Redd, Crona, and Munroe located at 2727 Apalachee Parkway, Tallahassee, Florida 32301. Peter DeVries appointed Mr. Sweet, a non-CPA, abandoned property financial analyst, to the evaluation committee. Mr. DeVries also contacted William Monroe, Division Director for the Comptroller's Division of Accounting and Auditing, and requested that Mr. Monroe appoint an individual from his section to evaluate the proposals. Mr. Monroe chose Mr. Dearden to serve on the evaluation committee. Mr. Grosmaire contacted the Florida Institute of Certified Public Accountants in order to obtain the name of a non-departmental, CPA qualified to serve on the evaluation committee. The Florida Institute referred Mr. Law to the Division and he was placed on the evaluation committee. All of the initial committee members had sufficient knowledge of auditing procedures and were qualified to evaluate this RFP. Mr. Grosmaire provided the evaluators with copies of the submitted proposals, the revised RFP, and the evaluation sheets for their use in scoring. Mr. Grosmaire informed the evaluators that in performing their evaluations they were to only consider the RFP and the documents submitted by the offerors. No other instructions were given to the initial committee members. The evaluators kept the materials provided for approximately one week and performed their respective evaluations. During that time no other significant contact relative to this proceeding occurred between the evaluation committee members and Mr. Grosmaire. There is simply no evidence that Mr. Grosmaire improperly attempted to adversely influence the independent evaluations of the various evaluators. As indicated, each evaluator individually reviewed the RFP, the scoring criteria, and scored each proposal against the RFP requirements. Each evaluator placed their scoring numbers on their respective rating sheets. Mr. Sweet, a financial examiner with the Abandoned Property section, as noted, evaluated the proposals, Mr. Sweet has had training in both abandoned property and in auditing. In performing his evaluations, he exercised his best discretion and judgment in arriving at his scores. In sum, his explanations for scoring as he did were reasonable. Mr. Sweet had previous experience in evaluating similar RFP's in that he was on the evaluation team for the previous year's RFP concerning the same subject matter. Neither Mr. Young or FCH objected to Mr. Sweet's involvement as an evaluator on the previous RFP. Additionally, Mr. Sweet, in performing his evaluation, telephoned a reference, an employee of the State of Maine, listed by FCH. He wrote her responses regarding FCH down on a reference check sheet. The reference noted to Mr. Sweet that they "were contacted by nearly every holder contacted by FCH with complaints." In terms of what strengths the reference would recommend as to FCH, the reference responded "none." Mr. Dearden, a financial administrator for the Department of Banking and Finance, Division of Accounting and Auditing, also served as an evaluator of the proposals. Prior to and during his activity as an evaluator, Mr. Dearden had no prior contact or involvement with any of the offerors, including FCH. In addition, he had little contact with either Mr. Grosmaire or Mr. DeVries and was not influenced by anyone in the agency relative to the manner in which he scored the various proposals. Mr. Dearden had also previously been an evaluator on an abandoned property RFP dealing with the collection of in-state property. Mr. Dearden utilized his best efforts to review each RFP, the evaluation standards, and score each proposal on its terms. The explanations for his scoring were reasonable. While Mr. Dearden had limited prior experience in abandoned property, his experience in auditing as well as his review of the RFP requirements and previous experience as an abandoned property evaluator allowed him to adequately evaluate the proposals. According to the RFP specifications, a minimum average score of 80 was required in order for an offeror to be awarded a contract. Based upon the averaged scoring, State Street and NAPPCO scored over 80 points; FCH and Florida Property Recovery Consultants scored under 80 points. In particular, State Street's overall scores were 89, 88, and 90; NAPPCO's scores were 87, 81, and 86. FCH's scores were 66, 71, and 60 and those of Florida Property Recovery Consultants, Inc., were 42, 57, and 49. Based on these scores, the Department posted the award sheet, indicating the award of a contract to State Street and NAPPCO. The proposal tabulation and notice of award was posted on June 18, 1997. On June 20, 1997, FCH filed a Notice of Intent to Protest with the Department. The notice was timely filed within 72 hours of posting the bid/proposal tabulation. On June 30, 1997, FCH filed a formal written protest of the RFP. The formal protest was timely filed within 10 days of the filing of the Notice of Intent to Protest. Subsequent to the posting of the intent to award and the filing of this bid protest, the Department learned that Florida Statutes required that at least three employees of the Department who "have experience and knowledge in the program areas and service requirements for which contractual services are sought" serve on the evaluation committee. Section 287.057(15), Florida Statutes. The initial committee only had two such employees on the evaluation committee. In order to correct this oversight, Mr. Devries requested that Mr. Monroe, Division Director of Accounting and Auditing, appoint another employee to the evaluation committee. Mr. Monroe appointed Michael Gomez, a state employee, to the committee to additionally evaluate the proposals. Mr. Gomez has an extensive background in auditing and accounting and was qualified to evaluate the proposals. In fact, the evidence showed that all the committee members were familiar with the program and auditing requirements of the abandoned property section. He had no prior dealings or communications with FCH or any other bidder prior to the time of his evaluation of the proposals. Mr. Gomez received the evaluation materials from Mr. Grosmaire. Mr. Grosmaire also instructed Mr. Gomez as he had the other three committee members. Mr. Gomez reviewed the RFP and the proposals and submitted his scores on June 9, 1997. Mr. Gomez scored the proposals as follows: Florida Property Recovery Consultants, Inc.: 59; State Street Bank: 98; FCH: 76; and NAAPCO: 94. Mr. Gomez, in performing his evaluations, exercised his best discretion and judgment and felt comfortable evaluating the RFP auditing proposal based upon his auditing background. His explanations for the scores he gave were reasonable and did not change the original rankings of the initial committee. The evidence did not demonstrate that the Department's belated compliance with the statute caused any prejudice to the offerors or undermined the goals of the RFP process. Moreover, the evidence did not demonstrate that the department acted arbitrarily, capriciously or in bad faith in either its process, evaluation or intended award of the contract outlined in this RFP. Therefore, the protest should be dismissed.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Office of the Comptroller, Department of Banking and Finance, enter a Final Order awarding contracts to State Street and NAPPCO and denying Petitioner's and Intervenor's request for relief and dismiss their protests. DONE AND ENTERED this 25th day of November, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1997. COPIES FURNISHED: Will J. Richardson, Esquire Richardson Law Offices, P.A. Post Office Box 12669 Tallahassee, Florida 32317-2669 H. Richard Bisbee, Esquire Office of the Comptroller 101 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350 Stanford P. Birnholz, President Florida Property Recovery Consultants, Inc. 8090 Atlantic Boulevard, F-79 Jacksonville, Florida 32201 Harry Hooper, Esquire Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Robert F. Milligan, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350
