The Issue Whether the proposal Petitioner submitted in response to Respondent's Request for Proposal No. 00-DC-7295 was non- responsive.
Findings Of Fact Stipulated Facts On or about August 14, 2000, the Department issued RFP No. 00-DC-7295 for an Inmate Telephone System. Generally, RFP No. 00-DC-7295 requests proposers to submit proposals to provide local, intralata, interlata, and international telephone services for inmates in the Department's facilities identified in the RFP and coin- operated telephones at each site for staff and visitors. The proposer awarded the contract under RFP No. 00-DC-7295 (the Contractor) must provide and install all telephone instruments and all wiring. The Contractor must also provide system administrators and site technicians who will implement and manage pin numbers and calling lists for inmates, and must provide various specified reports and data to the Department All services, equipment, etc., addressed in RFP No. 00-DC-7295 must be provided to the Department at no cost. Instead, the Contractor must pay the Department a commission calculated as a percentage of gross revenues. Consequently, the contract to be awarded under RFP No. 00-DC-7295 is a revenue-generating contract for the Department. Sprint, T-NETIX, WorldCom at AT&T timely submitted proposals to the RFP. On November 6, 2000, the assigned Department Purchasing Staff member, Genanne Wilson, determined the AT&T and Sprint proposals to be non-responsive for failing1 to meet the mandatory requirements of the RFP. Sprint's proposal was also determined to contain a material deviation2 from the RFP. The determination that the Sprint proposal failed3 to meet the mandatory requirements of the RFP and contained a material deviation was based on Sprint's inclusion of the following underlined language on the Supplemental Proposal Sheets wherein the proposers were instructed to appropriately initial in understanding and agreement each paragraph of the RFP: Liquidated Damages With the express understanding the total liquidated damages are limited to $100,000.00 by the Limitation of Remedies in Section 7.32. Following the determination that the Sprint proposal failed4 to meet the mandatory requirements of the RFP and contained a material deviation, Sprint's proposal was not further evaluated by the Department. The T-NETIX5 and WorldCom proposals were individually evaluated by each member of an Evaluation Team pursuant to the criteria specified in the RFP. On Tuesday, December 5, 2000, the Department posted its intended award of the contract for RFP No. 00-DC-7295 to WorldCom. Sprint and T-NETIX each timely filed a protest to this intended award. Findings of Fact Based on the Evidence of the Record On or about October 13, 2000, the Department issued Addendum No. 1 to RFP No. 00-DC-7295 which reprinted the original RFP in its entirety and included 67 revisions. Section 4.3.6 of the RFP specifies that, "[t]he Department shall reject any and all proposals not meeting mandatory responsiveness requirements." Section 5.1 of the RFP, reads in pertinent part as follows: Tab 1 - Mandatory Responsiveness Requirements The following terms, conditions, or requirements must be met by the proposer to be responsive to this RFP. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a proposal. Any proposal rejected for failure to meet responsiveness requirements will not be evaluated. It is mandatory that the proposer supply one (1) original and ten (10) copies of both the Project and the Cost Proposals. Project and Cost Proposals shall be in separately sealed packages each clearly marked "Project Proposal - RFP-00-DC-7295" or "Cost Proposal - RFP-00-DC-7295" respectively. Inclusion of any commission rates or pricing data in the Project Proposal shall result in rejection of the entire proposal. It is mandatory the proposer return, under Tab 1, the Supplemental Proposal Sheets (Attachment 1) of this RFP document, appropriately initialed in understanding and agreement of each paragraph of the RFP and signed by the person with authority to properly bind the proposer. It is mandatory the proposer complete, sign and return, under Tab 1, the PUR Form 7033, State of Florida Request for Proposal/Contractual Services Acknowledgment which is the front cover of this RFP document. A copy of the document that includes both front and back sides is acceptable. (emphasis in original) Section 6.1 of the RFP further provides: 6.1 Review of Mandatory Responsiveness Requirements Proposals will be reviewed by Department staff to determine if they comply with the mandatory requirements listed in Section 5 of the RFP. This will be a yes/no review to determine if all requirements have been met. Failure to meet any of these mandatory requirements will render proposal non-responsive and result in rejection of the proposal. Further evaluation will not be performed. No points will be awarded for passing the mandatory requirements. (emphasis in original) RFP Section 7.30, entitled, "Liquidated Damages," addresses liquidated damages for various requirements and services to be provided by the successful proposer under the contract for an inmate telephone system. Section 7.30 does not contain a cap or limitation on liquidated damages. RFP Section 7.32, entitled "Limitation of Remedies," addresses the limitation of remedies for the performance or non-performance of machines and programming. There is no cap or limitation on liquidated damages established by RFP Section 7.32. Sprint altered the Supplemental Proposal Sheets by limiting liquidated damages under Section 7.30 to $100,000 based upon its understanding of the relationship between Sections 7.30 and 7.32 of the RFP. Specifically, Sprint read Sections 7.30 and 7.32 in para materia and concluded that total liquidated damages would be "limited to $100,000 by the limitation of remedies in Section 7.32." Mike Jewell, who at the time the RFP was issued, was Sprint's Vice President of Sprint Payphone Services, Inc., was responsible for "oversight over the responses that Sprint submitted and to make sure that they were in keeping with the corporation's business interests." Mr. Jewell testified that the purpose of inserting this language in the proposal was to, "point out to the Department of Corrections that our agreement to 7.30 had to be read in conjunction with the language in the agreement in [sic] 2.7.3.2." Mr. Jewell acknowledged that vendors had the opportunity to ask questions prior to the submittal of their proposals to the Department and that Sprint did not ask any questions regarding the relationship between Sections 7.30 and 7.32 of the RFP. A letter written by Paul Eide, Customer Care Manager for Sprint, and faxed to the Department on November 21, 2000, after the opening of the proposals, stated in pertinent part: In response to the RFP, we found the liquidated damages section to [sic] vague and confusing to the exact dollar amount of a penalty situation. Our intentions were to point out the ambiguity and merely cap the amount so the winning vendor was not liable for an infinite amount of money. Although Sprint requested permission from the Department to remove the $100,000 cap on liquidated damages after the opening of the proposals, the Department did not permit Sprint to do so. Genanne Wilson, a purchasing analyst in the Department's bureau of purchasing, was the person charged with reviewing the proposals for responsiveness. Ms. Wilson determined that Sprint did not meet the requirement of Section 5.1.2 and, therefore, failed to meet the mandatory responsiveness requirements of the RFP. That determination was confirmed by her bureau chief. As specified in Section 6.1 of the RFP, further evaluation was not performed on Sprint's proposal. The evidence submitted by Sprint is not sufficient to establish that Sprint's proposal was responsive. Rather, the evidence establishes that Sprint chose to alter or modify the Supplemental Proposal Sheets even though those who submitted proposals were advised in Sections 5.1 and 6.1 that failure to meet any of the mandatory responsiveness requirements would render a proposal non-responsive and result in rejection of the proposal and that further evaluation would not be performed. Sprint's failure to signify its understanding and agreement to Section 7.30 by initialing the supplemental proposal sheets without more resulted in a failure to meet the mandatory requirement in Section 5.1.2. Sprint's failure to meet the mandatory requirement constitutes a material deviation from the RFP. The Department's determination that Sprint's proposal was non-responsive was consistent with the clear, express language of the RFP which informed proposers of mandatory requirements and that proposals found to be non- responsive would not be further evaluated. Sprint's proposal was not responsive to the RFP because it failed to meet a mandatory requirement and it contained a material deviation. Both defects arise from Sprint's attempt to limit its exposure to liquidated damages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Corrections enter a final order dismissing the bid protest filed by Sprint. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 6th day of April, 2001.
Findings Of Fact Respondent is licensed by Petitioner to operate its business at 13 S. E. Sixth Street, Fort Lauderdale, Florida. Although Respondent has attempted to qualify to operate a branch office, Petitioner has neither approved nor licensed Respondent to operate a place of business other than at the aforestated address. The 1979-80 edition of the Yellow Pages telephone directory published by Southern Bell Telephone and Telegraph Company for the Hollywood, Florida, area carried a listing for Checkmate lnternational Detective Agency, which listing recites 9481 S. W. 49th Street, Cooper City, Florida, as the Respondent's address, and 434-1926 as the Respondent's telephone number. The listing does not include the address at which Respondent is licensed. The identical advertisement appears in the 1980-81 Yellow Pages directory published by Southern Bell Telephone and Telegraph Company for the Hollywood, Florida, area. The address in Cooper City listed as the business address for Checkmate International Detective Agency is the home of Mr. Mutnich and his employee, Cyndee Heyl. Although Mr. Mutnich insists he did nothing to cause the erroneous listing and even spoke to some unidentified person at some unidentified time regarding the error, he presented no evidence to show any specific efforts on behalf of Respondent to correct the erroneous listing or to prevent the advertised telephone number from being provided to callers by Directory Assistance or to disconnect the telephone number after the listing first appeared. Additionally, no evidence was presented to show efforts made to either delete the advertisement from the following year's directory or to change or disconnect the telephone number. Respondent has further failed to present any testimony or documentation showing any definitive action to prevent this same "erroneous" listing from appearing in any editions of the telephone directory to be printed in the future. In accordance with Petitioner's policy, the fine assessed against the Respondent in the amount of $100 is the amount normally levied by the Division for a first offense.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A final order be entered requiring Respondent to pay to the Petitioner the amount of $100 by a date certain. RECOMMENDED this 26th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Steven T. Barnes, Chief Bureau of License Issuance Department of State The Capitol Tallahassee, Florida 32301 Mr. Thomas Mutnich Checkmate International 13 South East Sixth Street Fort Lauderdale, Florida The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that: Respondent Department of Transportation enter a final order denying the application of petitioner V. J. Allen, d/b/a The Seafood Shack, for a sign permit. RECOMMENDED this 25th day of January, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of January, 1985.
The Issue Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a (1) 1,000 ohm resistor 2 watt, when in fact it was not replaced; in violation of Section 468.159(1)(d), Florida Statutes. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a "Rebuilt Tuner", when in fact the work was not performed; in violation of Section 468.159(1)(d), Florida Statutes. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976,by charging Joseph Scozzafava for replacement of two (2) 6GH8 tubes, when in fact they were not needed; in violation of Section 468.159(1)(d) , Florida Statutes. The charging document in this cause, to wit, the Notice to Show Cause, had originally charged Henry Adkins and Sharon Adkins with the failure to identify the State Registration on invoice #3078 dated January 3, 1976, as required by Rule 7B-2.12(b), Florida Administrative Code. This count of the Notice to Show Cause was voluntarily dismissed by the Petitioner at the commencement of the hearing.
Findings Of Fact This cause comes on for consideration based upon the Notice to Show Cause of the Petitioner, which is complaint No. 108000-51 before the Petitioner, State of Florida, Department of Business Regulation, Division of General Regulation. The complaint is addressed to the Respondents, Henry Adkins and Sharon Adkins, his wife, who trade as Lauderdale Lakes T.V. and is directed to the following business entities owned by Henry Adkins or Henry Adkins and Sharon Adkins. The corresponding numbers which are reported here pertain to the license numbers assigned by the Petitioner to Henry Adkins or Henry Adkins and Sharon Adkins. Those licenses are for All-State T. V., No. 5079; Tower T.V., No. 6108; Lauderdale Lakes T.V., No. 5069; Inter-City T.V., No. 2895; X-Ray T.V., No. 2914; and M & H Electronics., No. 4854. Henry Adkins appears as the owner on all licenses. Sharon Adkins appears as the co-owner on the license for M & H Electronics, No. 4854. Before presenting the case for consideration, the parties entered into these factual stipulations: The Division of Administrative Hearings has jurisdiction to consider this case. The Notice of Hearing in this cause is timely. Henry Adkins is listed in the six licenses referred to above and each of those licenses have a mailing address of 3504 NW 10th Avenue, Fort Lauderdale, Florida 33309. In addition, those licenses referred to above and the ownership stated are correct as to the existence of the entity, the ownership and the number assigned to the various entities by the Petitioner. The invoice of Lauderdale Lakes T.V., No. 3078, is authentic. The State of Florida, Department of Business Regulation, Division of General Regulation is the owner of a 1972 RCA color television which is the subject of this case. Three television tubes, to wit: two 6GH8 tubes, and one 6-CB6 tube are the property of the State of Florida, Department of Business Regulation, Division of General Regulation. Joseph Scozzafava is not the owner of the subject 1972 RCA color television, nor was the money paid for the repair of the said television money of Mr. Scozzafava. The invoice referred to above may be found as Petitioner's Exhibit No. admitted into evidence. The television set is Petitioner's Exhibit No. 2 admitted into evidence, and the three tubes are Petitioner's Composite Exhibit No. 3 admitted into evidence. In late January, 1976 employees of the Petitioner, operating on complaints, prepared a television set for purposes of ascertaining whether or not the Respondent, Henry Adkins, d/b/a Lauderdale Lakes T.V., was. operating in violation of Chapter 468, Florida Statutes. In furtherance of their investigation they took tile 1972 RCA television set which has been mentioned as being Exhibit No. 2, and played the set for a couple of days to determine whether or not it was in good working order. From an observation point of view, there were no malfunctions during the test period. In the color circuit to include all the major components such as the tuner, transformer, and resistors, all items checked out as operating properly. In addition, 15 tubes within the set were checked by tube fester and the tubes proved to be acceptable. (The tube tester had not been certified.) After checking the set out, Frank Butler, an investigator with the Petitioner and Certified Electronics Technician, overloaded a tube within the color circuit. The specific tube is a 6-CB6 burst amplifier. The effect of overloading this tube was to remove the color from the set, such that it would play only in black and white. The created malfunction in this tube did not have an adverse effect on the other components within the set. The employees of the Petitioner also marked a number of the tubes in the set by crimping the connectors on the tubes by way of identification. An operative 6-CB6 burst amplifier was then inserted in the set and the set was played again for two days, within which time it operated successfully. The Petitioner's employees then contacted one Joseph Scozzafava, an employee with the Department of Business Regulation, Division of Beverage. The purpose of the contact with Scozzafava was to allow him to take the television set owned by the State and to contact Lauderdale Lakes T.V. for purposes of having that organization make repairs on the subject television. The idea was that the defective 6-CB6 tube would he left in the set so that the television only played black and white. When they took the set to Scozzafava in late January, 1976, they showed him that the set operated on all local-stations and then removed the operative 6-CB6 tube and replaced it with the inoperative tube and left that tube in the set. The Petitioner's employees then instructed Scozzafava to call Lauderdale Lakes T.V. to have the repairs effected. To achieve this end, Scozzafava was paid $100.00 by the Petitioner and in turn would write a check from his own account for the amount of the total cost of repairs. The set was picked up from Scozzafava on January 27, 1976. The pickup was made by an employee of the Respondent, Henry Adkins, in a truck listed to the license, Inter-City T.V. The television set was repaired under an invoice of Lauderdale Lakes T.V., a license held by Henry Adkins. That invoice is the Petitioner's Exhibit No. 1 admitted into evidence. The facts repeal that two 6GH8 tubes were replaced by employees of the Respondent, Henry Adkins, and charged to Scozzafava, when it was in fact unnecessary to replace those tubes. Those tubes may be found as part of Petitioner's Exhibit No. 3 admitted into evidence, and when tested subsequent to the time the television set was returned to the employees of the Petitioner, were found to be operable over a period of one or more days arid when played during the course of the hearing, were found to be in good operating condition. The charges and the indication of replacement may be found in the invoice and the invoice was executed by an employee of Henry Adkins, the Respondent. That employee was working for Lauderdale Lakes T.V. The invoice also reflects the replacement of one 1,000 ohm 2 watt resister, when in fact no replacement of the resister occurred. Scozzafava was charged for this item which was not replaced. Finally, there is an indication that the tuner within the set was rebuilt and a charge made to Scozzafava for that service. The Petitioner's employees had placed wax and tape across the shield which covers the inner parts of the tuner and that wax and tape had not been disturbed during the pendency of the time which the set was with the employees of the Respondent. The tuner was not rebuilt, notwithstanding the claim by witnesses of the Respondents, to the effect that certain repairs could have been made to the surface of the tuner without the necessity to remove that shield. The evidence leads to the conclusion that the tuner was not rebuilt. In summary, Scozzafava paid $88.45, to Lauderdale Lakes T.V. from funds provided him by the Petitioner. Of that amount paid, $8.40 was paid for two 6GH8 tubes; $6.25 was paid for the one 1,000 ohm 2 watt resistor which was not installed and $21.00 was paid for rebuilding the tuner, when in fact the tuner was not rebuilt. Some portion of the labor charge of $32.50 went toward these items; however, it is unclear what portion of that charge pertains to those items. As briefly mentioned before, the television set was returned to Scozzafava, who in turn gave it to the Petitioner's employees, who kept the set until such time as the case was brought. Employees of the Respondent, Henry Adkins, driving an Inter-City T.V. truck, returned three tubes, one 6-CB6 and two 6GH8; they did not return a 1,000 ohm 2 watt resister. The balance of the $100.00 paid to Scozzafava for the purposes of assisting the Petitioner was returned to the Petitioner. There was no testimony to the effect that either Henry Adkins or Sharon Adkins were directly involved in the pick-up or repair of the television set. Sharon Adkins was involved in the billing process, based upon a cost estimate given to Scozzafava in the amount of $85.00. Both Respondents indicated that they make a background check of all employees hired, for purposes of determining the employees' integrity. The Respondents, through Sharon Adkins, also indicated that they had made attempts to locate all employees who were involved with the pick-up or repair of the television set and were unsuccessful in locating them due to the death of one employee and the inability through use of a private detective to locate the other individuals. Henry Adkins also indicated that he had fired employees in the last two years because those employees put in unnecessary parts or overcharged for parts. The Petitioner has charged the Respondents with committing acts of fraud and dishonest dealings by charging Joseph Scozzafava for the one 1,000 ohm watt resister; charging him for the rebuilt tuner and replacing the two 6GH8 tubes when in fact they were not needed. To the Petitioner, these acts were in violation of Section 468.159(1)(d), Florida Statutes. That provision reads: "In violation of registration; civil penalties.- The Division may refuse to validate or may invalidate temporarily or permanently the registration of a service dealer for any of the acts or omissions related to the conduct of his business done by himself or any employee, partner, officer, or member of the service dealer; (d) Committing any other act which constitutes fraud or dishonest dealing." By charging for the two 6GH8 tubes that were not needed; by failing to replace the one 1,000 ohms 2 watt resister, and charging for such replacement and for charging to rebuild a tuner which was not rebuilt, the employees of the Respondents are guilty of fraud and dishonest dealing. For those violations and under the exact language of the statute, the Respondents would appear to be guilty of a violation of Section 468.159(1)(d), Florida Statutes. However, the law does not contemplate that an employer is the absolute insurer of all the acts of his or her employees. Absent a showing of direct involvement on the part of the Respondents in the acts which constituted fraud and dishonest dealing, the Petitioner must show negligence or a lack of due diligence by the Respondents, In the Respondents' supervision of the employees who have committed the acts of fraud and dishonest dealing. (See Taylor v. State Beverage Department, 194 So.2d 321 (2nd DCA, 1967).) An isolated incident such as the one in the case under consideration does not satisfy the requirement that the Petitioner show negligence or a lack of due diligence on the part of the Respondents. Therefore, the Petitioner has failed to establish a violation on the parts of the Respondents as it pertains to the electronic service dealer registration Nos. 5069, 5079, 2895, 4854, 6108 and 2914, which are held by Henry Adkins and Sharon Adkins and Henry Adkins, solely. Full consideration has been given to the proposed findings of facts and conclusions of law submitted and when appropriate are incorporated in this Recommended Order.
Recommendation It is recommended that the Notice to Show Cause against Henry and Sharon Adkins, which is recorded as complaint No. 108000-51, pertaining to electronic service deal registration Nos. 5069, 5079, 2895, 4854, 6103 and 2914 be DISMISSED. DONE AND ENTERED this 30th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard E. Gentry, Esquire Staff Attorney State of Florida, Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Robert D. Hurth, Esquire 2425 East Commercial Boulevard Marwayne Office Plaza, Suite 101 Fort Lauderdale, Florida 33308
The Issue The issue in this case is whether the Tallahassee-Leon County Planning Commission should approve, with conditions specified by the Development Review Committee (DRC), a type B site plan submitted by Wright/AT&T for construction of a cell tower at the corner of Buck Lake Road and Pedrick Road.
Findings Of Fact The applicant, Wright/AT&T, seeks approval of a type B site plan for construction of a 150-foot high telecommunications antenna support structure (cell tower) on 4,200 square feet of the commercially-zoned (C-1) Parcel 8 of the Benjamin’s Run planned unit development (PUD) at the southwest corner of Buck Lake Road and Pedrick Road, along with a 230 square-foot building to house electrical equipment, a gated fence surrounding the tower and building, and an access driveway from Pedrick Road. Buck Lake Elementary School is across Pedrick Road from Parcel 8. There are numerous residential land uses in the immediate vicinity, including the rest of Benjamin’s Run, Easton, the Enclave, and Tung Hill. Wright/AT&T demonstrated that there is a need for a cell tower to provide cell phone voice and data services to a coverage hole in the vicinity of Parcel 8 of Benjamin’s Run and that there are no suitable alternative sites. Petitioners did not rebut Wright/AT&T’s demonstration of need and suitability. They questioned whether the search area was broad enough, but the evidence proved that the applicant’s search area was appropriate. They questioned whether there were any co-location opportunities that would be suitable, but the evidence proved that there are none. The Benjamin’s Run PUD is central to determining whether Wright/AT&T’s type B site plan should be approved. The City approved the PUD in August 1998. The approved PUD does not mention telecommunications support structures or cell towers explicitly. Under Section 3.1.2 of the Land Use Concept Plan in the PUD’s Conceptual Development Narrative, it states that the proposed development’s concept plan “[p]rovides outlet for goods and services at a restricted neighborhood scale, serving the immediate surroundings.” Section 3.2.1 states that “Benjamin’s Run is primarily a residential community with the intended conceptual objectives [to] [m]aintain compatibility with the existing neighborhoods[; p]rovide limited commercial and employment opportunities to the proposed development and surrounding neighborhood, at a restricted neighborhood scale[; and d]evelop to the infrastructure capabilities currently available ” It also states: “The neighborhood commercial will generally be located at the intersection of Pedrick Road and Buck Lake Road, depicted as Parcel 8. . . . Office use is intended to serve as a bridge between the commercial and the residential component of parcel 7.” Under section 3.2.2 of the PUD’s Land Use Concept Plan, the residential densities are those allowable for the City’s R-2 and R-3 Zoning Districts. Under section 3.2.3, office use is permitted as minor or major office parks, limited to those permitted in the City’s C-1 Zoning District, and limited to a maximum of 25,000 square feet. Under section 3.2.4, minor to neighborhood commercial uses are permitted, limited to those permitted in the City’s C-1 Zoning District, and limited to neighborhood commercial with a maximum of 25,000 square feet. Section 3.3 of the PUD’s conceptual development narrative provides that uses are limited to those permitted within the R-2, R-3, and C-1 zoning districts of the City Code, as amended November 1997. It also states that permitted uses “will be listed by Standard Industrial Code [SIC] number, where applicable, or specify a definition of other permitted uses not listed by SIC numbers.” Section 7.2 of the PUD lists 64 SICs permitted in C-1, and none cover telecommunications support structures.1/ There also is no SIC for billboards. Section 4.6.2 of the PUD’s general development standards, under signs, specifically prohibits them. There is no similar prohibition of cell towers. Section 4.5.5 of the PUD’s general development standards, under non-residential building and site design, states: “All electrical and telecommunication utilities shall be located underground, except for antennas which may be located on rooftops so long as the roof design screens any rooftop equipment from view from public rights of way.” Section 10-425(c)(1) of the City’s Land Development Code, known as the Telecommunications Siting Ordinance, which governs the siting of cell towers, was adopted in November 1996. The ordinance was amended in 1999; but, from its inception, it allowed cell towers in any zoning district so long as the tower met the requirements of section 10-425.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Planning Commission approve Wright/AT&T’s type B site plan, with the DRC’s conditions. DONE AND ENTERED this 20th day of April, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 20th day of April, 2011.
Findings Of Fact The Respondent, Larry C. Griggs, is licensed as a certified general contractor, holding license number CG C001910. During the years 1979, 1980 and 1981 the Respondent was president of Kramer Homes, Inc., and in this capacity he acted as contractor for the construction of a project in Dade County known as Woods Landing. Kramer Homes, Inc., entered into subcontracts in connection with the Woods Landing project, and listed itself as contractor on these subcontracts. Kramer Homes, Inc., also caused the notice of commencement to be published, and it obtained the construction loan and paid some of the bills incurred. The Respondent, however, failed to qualify Kramer Homes, Inc., with the Construction Industry Licensing Board. The Respondent admitted the above facts, but explained that he had no intent to violate the construction industry licensing law. He asserts that he was confused as to the proper practice because he owned and operated both Kramer Homes, Inc., and his other corporation, Larry C. Griggs, Inc., which he did qualify. During the course of the Woods Landing project, funding problems developed which resulted in the failure of the Respondent to pay 16 creditors for materials furnished or services performed at Woods Landing when payment was due. Subsequently however, the Respondent has caused payment to be made, or has made arrangements for payment, to all such creditors except for five. The creditors remaining unpaid are Miami Comfort Air, Style Light, Inc., Gem Cabinet Company of Miami, Inc., World Tile Company, and Dixie Clamp and Scaffold, Inc. On approximately September 11, 1981, the Respondent issued a check on a Woods Landing account, payable to Miami Comfort Air, in the amount of $5,000. Previously, on July 31, 1981, the Respondent had acknowledged the debt due Miami Comfort Air, and had made arrangements to pay $8,000 by September 1, 1981. The check for $5,000 was in partial payment of the total debt. The check for $5,000 issued by the Respondent on September 11, 1981, to Miami Comfort Air was returned unpaid by the bank marked not sufficient funds. When the Respondent learned that this check had not been paid, he failed to make it good or to make suitable arrangements for payment of the amount due Miami Comfort Air. The Respondent contends that be believed that there were sufficient funds in his account when he issued the $5,000 check to Miami Comfort Air. He explained that his bank, County National Bank of South Florida, became insecure with the financial aspects connected with the Woods Landing project, and withdrew interest from his account without advising the Respondent, at or about the time he issued the check to Miami Comfort Air. He asserts that it is his intention to pay all of the creditors of this project, and he established his payment record of the creditors who had been paid as of the date of the hearing. Miami Comfort Air has reduced its claim against the Respondent to judgment which the Respondent has not paid, but has elected to appeal, although he did not appear in court to defend the claim when suit was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Larry C. Griggs, be found guilty of violating Sections 489.129(1)(d), (g), (j) and Section 489.129(1)(c) to wit Section 455.227(1)(a), Florida Statutes, and that he be assessed an administrative fine of $250 on Count 1, $100 on Count 11 and $1,000 on Count 111, for a total fine of $1,350. THIS RECOMMENDED ORDER entered on this the 24th day of January, 1983. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Blvd. Fort Lauderdale, Florida 33306 James L. Wall, Jr., Esquire 407 Lincoln Road Miami Beach, Florida 33139 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Conclusions There is competent substantial evidence to support a conclusion that Miami-Dade County owed a duty of care that was breached when its bus driver ran a red traffic signal, directly and proximately causing the Claimant’s permanent and severe injuries. ATTORNEY’S FEES AND LOBBYIST’S FEES: In compliance with Section 768.28(8), Florida Statutes, but not with Section 3 of this claim bill, Claimant’s attorney has submitted a closing statement affirming that the attorney’s fees are 25 percent of the amount of the award, and that the lobbyists' fees are an additional 6 percent. The Claimants have entered into an agreement to pay costs that was approved by the guardian and the court. Costs are expected to range between $25,783.29, the amount as of January 15, 2007, to $75,783.29 by the end of the claim bill process. LEGISLATIVE HISTORY: This is the first time that a claim bill has been filed to compensate Schneidine Theogene. RECOMMENDATIONS: For the reasons set forth in this report, I recommend that Senate Bill 56 (2008) be reported FAVORABLY. Respectfully submitted, cc: Senator Dave Aronberg Representative Carlos Lopez-Cantera Faye Blanton, Secretary of the Senate Eleanor M. Hunter Senate Special Master House Committee on Constitution and Civil Law Mark Kruse, House Special Master Counsel of Record
The Issue The issue is whether Respondent should deny Petitioner's application for a sign permit, because the proposed site is not zoned commercial and, therefore, fails the requirement for commercial zoning in Subsection 479.111(2), Florida Statutes (2007),1 and the location does not qualify as an un-zoned commercial/industrial area within the meaning of Subsection 479.01(23).
Findings Of Fact Respondent is the state agency responsible for regulating outdoor signs at the proposed site. The proposed site is located at 2505 West Bella Vista Street, Lakeland, Florida. Petitioner is a Florida corporation engaged in the business of full-service advertising in the state, including road-side signs or billboards. On March 21, 2008, Petitioner submitted an application for an outdoor advertising permit for two structures with four sign faces identified in the record by application numbers 57095, 57096, 57097, and 57098. On March 31, 2008, Respondent issued a Notice of Denied Application (the Notice). The Notice notified Petitioner of proposed agency action to deny the permit application. The Notice states two grounds for the proposed denial. The first ground alleges the “Location is not permittable under land use designations of site [sic]” within the meaning of Subsection 479.111(2). The second ground alleges the “Location does not qualify as unzoned commercial/industrial area” within the meaning of Subsection 479.01(23). Section 479.111 applies to signs located within the interstate highway system and the federal-aid primary highway system (the regulated highway system). The proposed site is located within the regulated highway system adjacent to Interstate 4 in Polk County, Florida. Subsection 479.111(2), in relevant part, authorizes signs within the regulated highway system which satisfy one of two disjunctive requirements. A sign must be located in either a “commercial-zoned” area or must be located in a “commercial- unzoned” area and satisfy a statutorily required use test.2 The term “commercial-unzoned” is defined in Subsection 479.01(23). However, a determination of whether the proposed site satisfies the statutory use test for a “commercial-unzoned” area is not necessary if the proposed site is found to be in a “commercial-zoned” area. The Legislature has not defined the term “commercial-zoned” area, and Respondent has cited no rule that defines the term. The issue of whether the proposed site is in a “commercial-zoned” area is an issue of fact and is not within the substantive expertise of Respondent. Even if the definition were within the substantive expertise of Respondent, Respondent explicated no reasons in the evidentiary record for deference to agency expertise. The evidentiary record explicates reasons for not deferring to purported agency expertise in this case. Respondent previously approved a sign permit from the same applicant on the same property. Petitioner spent $23,000.00 to move the previously approved sign so that both the proposed and existing signs could be permitted on the same property. It is undisputed that the proposed site is located on property zoned as Leisure Recreational in the Polk County Comprehensive Plan. It is also undisputed that Leisure Recreational “allows for multiple uses including commercial.”3 However, Respondent interprets the Leisure Recreational designation to be an “unzoned-commercial” area, because “The subject parcel is not explicitly zoned commercial. ”4 Respondent apparently has adopted a titular test for determining whether the proposed site is “commercial-zoned.” If the zoning designation does not bear the label “commercial,” Respondent asserts it is not “commercial-zoned” within the meaning of Subsection 479.111(2). The fact-finder rejects that assertion and applies a functional test to determine whether the local zoning label permits commercial use. A preponderance of the evidence supports a finding that the local zoning label of Leisure Recreational means the proposed site is “commercial-zoned” within the meaning of Subsection 479.111(2). Credible and persuasive expert testimony shows that the Leisure Recreational zoning designation specifically designates the proposed site for commercial uses, within the meaning of Subsection 479.01(23),5 including retail structures up to 20,000 square feet, bars, taverns, marinas, and fishing camps. The commercial uses allowed under the Leisure Recreational zoning designation are not discretionary with county planning staff but are permitted as a matter of right. Much of the dispute and evidence in this proceeding focused on two use tests that Respondent performed in accordance with Subsections 479.01(23)(a) and (b). However, the statutory use test applies only to site locations that are “commercial- unzoned.” Findings of fact pertaining to the accuracy of the use tests utilized by Respondent are unnecessary because they are inapposite to “commercial-zoned” property such as the proposed site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the application for a sign permit. DONE AND ENTERED this 8th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 8th day of April, 2009.
The Issue Whether the Department of Transportation's decision to award the contract contemplated in its Invitation to Bid ITB-DOT-06/07- 9025-GB (Purchase of Radio Equipment) is contrary to the agency's governing statutes, the agency's rules or policies, or the proposal specifications.
Findings Of Fact On September 28, 2006, the Department issued the Invitation to Bid, ITB-DOT 06/07-9025-GB (ITB) for the purchase of radio equipment. The ITB contemplated that one five-year contract would be awarded. The ITB reserved to the Department the right to accept or reject any and all bids, and reserved the right to make an award without further discussion of the bids submitted. The ITB reserved to the Department the right to reject any response not in compliance with the requirements of the ITB. The Bid Sheet of the ITB stated: NOTE: In submitting a response, the bidder acknowledges they have read and agree to the solicitation terms and conditions and their submission is made in conformance with those terms and conditions. ACKNOWLEDGMENT: I certify that I read and agree to abide by all terms and conditions of this solicitation and that I am authorized to sign for the bidder. I certify that the response submitted is made in conformance with all requirements of the solicitation. Likewise, the Special Conditions of the ITB provided in pertinent part: ADDITIONAL TERMS AND CONDITIONS No conditions may be applied to any respect of the ITB by the prospective bidder. Any conditions placed on any aspect of the prospective bidder may result in the bid being rejected as a conditional bid (see "RESPONSIVENESS OF BIDS"). DO NOT WRITE IN CHANGES ON ANY ITB SHEET. The only recognized changes to the ITB prior to bid opening will be a written addenda issued by the Department. RESPONSIVENESS OF BIDS Bids will not be considered if not received by the Department on or before the date and time specified as the due date for submission. All bids must be typed or printed in ink. A responsive bid is an offer to provide the items specified in this Invitation to Bid in accordance with all requirements of this Invitation to Bid. Bids found to be non-responsive will not be considered. Bids may be rejected if found to be irregular or not in conformance with the specifications and instructions herein contained. A bid may be found to be irregular or non-responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, modifying the bid specifications, submitting conditional bids or incomplete bids, submitting indefinite or ambiguous bids, or executing forms or the bid sheet with improper and/or undated signatures. Other conditions which may cause rejection of bids include evidence of collusion among bidders, obvious lack of experience or expertise to provide the required items, and failure to perform or meet financial obligations on previous contracts. * * * 23) PRODUCT REQUIREMENTS/SPECIFICATIONS Items furnished shall be standard products of the manufacturer or their suppliers, shall be new, unused, clean, and free from any defects or features affecting appearance, serviceability, or the safety of the user in normal intended use. Any deviation from specifications indicated herein must be clearly pointed out; otherwise, it will be considered that items offered are in strict compliance with these specifications, and successful bidder will be held responsible therefore. Deviations must be explained in detail on separate attached sheet(s). * * * 32) WARRANTY A warranty is required on all items purchased against defective materials, workmanship, and failure to perform in accordance with required industry performance criteria, for a period of not less than two (2) years from the date of acceptance by the purchaser. Any deviation from the criteria must be documented in the bid response or the above statement shall prevail. The State of Florida PUR 1001 (General Instructions to Respondents) was also included in the ITB. The General Instructions to Respondents specified that all responses to the ITB are subject to the following sections of the ITB, which, in case of conflict, shall have the following order of precedence: 1) Technical Specifications; 2) Special Conditions; Instructions to Respondents (PUR 1001); 4) General Conditions (PUR 1001), and 5) Introductory Materials. Section 9 of the General Instructions provides in pertinent part: Respondent's Representation and Authorization. In submitting a response, each respondent understands, represents, and acknowledges the following (if the respondent cannot so certify to any of the following, the respondent shall submit with its response a written explanation of why it cannot do so). * * * The product offered by the respondent will conform to the specifications without exception. The respondent has read and understands the Contract terms and conditions, and the submission is made in conformance with those terms and conditions. The ITB specifications also included information about what must be included in the bid to be considered responsive: This specification includes required equipment that the vendor shall provide to be compliant with the bid. This specification also includes non-required equipment that FDOT considers important but not critical to obtaining a successful bid. Vendors can elect to bid on any or all of these non-required equipment items. Bidding on non- required items does not affect the bid evaluation process however the Vendor will be held to the contract requirements and technical specifications for all bid products. All required and non-required equipment items are identified in the specification compliance matrix at the end of this technical specification. Required Equipment. The vendor shall supply all of the required types of equipment. There is also optional equipment that is required though it may not be procured with each order. An example of such a required, optional piece of equipment is the mobile radio dual control head. Non-Required Equipment. To ensure a successful bidding process FDOT has identified radio equipment that they consider important but not critical to the success of this contract. This equipment is fully specified in this document and if a vendor elects to bid any non-required equipment item, they must comply with the associated specifications. An example of such a non-required piece of equipment is the low-band VHF portable radio. Specifications 4.2.1.22.1 (with respect to portable radios) and 4.3.1.22.1 (with respect to mobile radios) both included the requirement that "[t]he last channel selected shall appear as the selected channel after the radio is turned back on. The last selected scan mode shall also reinitiate after the radio is turned back on." With respect to warranties, the specifications provided: VENDOR WARRANTY Parts and Labor Warranty. The vendor shall warranty all parts and accessories against defects in materials and workmanship while under normal use and service by FDOT personnel. Parts shall include but not be limited to all products, all product subsystem LLRUs disassembled by trained FDOT maintenance personnel, and all product accessories. The vendor labor necessary to diagnose and repair a defect shall be provided by the vendor at no cost to FDOT. Defective parts may be repaired by the vendor or replaced with new parts. The vendor shall also be responsible for return shipping costs to FDOT of a repaired or replaced part. 2.2 Warranty Period. Parts and Labor. With the exception of portable battery power ratings, the vendor shall warranty all parts and labor for 5 years. Portable Radio Battery Power Rating. The vendor shall warranty parts and labor associated with the portable radio power rating for 18 months. If during this 18 month period the battery power rating falls below 80% of the specified battery power rating the battery shall be replaced with a new battery. No bidder challenged the specifications contained in the ITB. On November 8, 2006, Vertex Standard submitted its response to the ITB. Four other vendors submitted proposals, including Midland. Four of the responding bidders, including Vertex Standard, were found to be non-responsive in part because they did not bid on all of the required items identified in the RFP. Midland's proposal contained a signed copy of the Bid Sheet referenced in paragraph 4, acknowledging the solicitation terms and certifying that its proposal is made in conformance with all requirements of the solicitation. However, Midland's proposal also contained a page entitled "Midland Radio Corporation Exceptions to Technical Requirements for Florida Department of Transportation Purchase of Radio Equipment ITB-DOT-06/07-9025-GB." On this page, Midland indicated that it "takes exceptions to the following Technical Requirements" of the ITB: Exception to 4.2.1.22.1 Midland Radio Corporation Model 80- 125/425 Portable Radios return to the programmed scan mode after On/Off/On Cycle. Exception to 4.2.4.5 Midland Corporation Model 81-391 Smart Rapid Charger meets Technical requirements for 4.2.4.5.1, 4.2.4.5.2, 4.2.4.5.3, and 4.2.4.5.4. Analyzer Functions is under review for a possible future function. Exception to 4.3.1.22.1 Midland Radio Corporation Titan Series Mobile Radios return to programmed scan mode after On/Off/On cycle. Exception to 8.2 Midland Radio Corporation warrants our Base Tech Base/Repeater stations for a period of five (5) years from date of purchase against defects in material and workmanship. Midland Radio Corporation warrants or [sic] Titan mobile radio, and our Midland portable radio products for a period of three years from date of purchase against defects in material workmanship. On the page following the "Exceptions," was a Warranty Certificate for Midland's equipment. The Warranty Certificate stated that all mobiles, portables and Titan Vehicular Repeaters were warranted for a period of three years. Base-Tech II Base/Repeater Stations were warranted for five years. With respect to accessories, Midland's Warranty Certificate stated that rechargeable batteries would be warrantied for 18 months; battery chargers for 1 year; and all other accessories for 120 days. Vertex Standard did not take exception to the five-year warranty requirement. Representatives from Vertex Standard were required to check with officials at their headquarters overseas in order to bid on a project requiring a five-year warranty. While Vertex Standard's representative indicated that there was additional cost to the company in providing a five-year warranty, the company decided to absorb the cost of the additional two years. No specific dollar amount attributable to the additional warranty period was identified. The responses to the ITB were reviewed by an evaluation committee comprised of Randy Pierce, Roger Madden and Brian Kopp. These three gentleman were also instrumental in developing the ITB in the first place. The evaluation committee members independently reviewed the responses submitted by the vendors and met collectively to compare the individual scores. Randy Pierce, who was the primary author of the ITB, determined that the five-year warranty specification was an error on his part that should have been addressed before the ITB was finalized. The committee members looked at the industry standard for warranties and determined that most failures occur in the first year and that the industry standard for warranties was two to three years. Similarly the requirement that radios return to the last channel selected had been included in the specifications because a prior vendor had included this option on equipment the Department now owned. The committee members determined that this requirement was a minor issue that would not affect the overall function and performance of the radio equipment, but could be addressed through training. On November 20, 2006, a Radio Bid Evaluation Response Justification Attachment (Justification Attachment) was prepared by Randy Pierce, Roger Madden and Brian Kopp. In this document, the evaluation team members reported that four vendors, including Vertex Standard, failed to comply with Specification Section 3.3 requiring the vendor to bid all required types of equipment. Based on this failure, all four were disqualified. The Justification Attachment also indicated that these four vendors were also non-compliant with several technical specifications in the ITB. The Committee determined that Midland Radio was the only vendor that bid on all required products. The Justification Statement stated in pertinent part: Midland, the fifth and remaining vendor bid all required products. Midland took exception to the following: Midland took exception to Specification Sections 4.2.1.22.1 and 4.3.1.22.1 regarding the start-up configuration of Portable and Mobile Radios. FDOT has reviewed the exceptions and agree [sic] to them. Midland took exception to Specification Sections 4.2.4.5 regarding the portable radio smart charger. This charger is not a required product and FDOT will therefore not award this item. Midland took exception to Specification Section 8.2 regarding the Warranty Period for Portable and Mobile Radios. The specified warranty period is five years, however Midland has bid a 3 year warranty period for Portable and Mobile Radios. FDOT has determined that the 3 year warranty period offered by Midland meets or exceeds the current industry standards. Therefore, FDOT agrees to the exception. With the agreed to exceptions Midland is the only compliant bidder and therefore they are selected. On November 27, 2006, the Department posted its notice of intent to award the contract to Midland. On November 30, 2006, Vertex Standard filed its Notice of Intent to Protest the intended award. On December 11, 2006, Vertex filed its Petition requesting a hearing pursuant to Section 120.57(1), Florida Statutes.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Vertex Standard's petition. DONE AND ENTERED this 30th day of April, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 30th day of April, 2007. COPIES FURNISHED: C. Denise Johnson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Michael P. Donaldson, Esquire Daniel Hernandez, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Stacy M. Schwartz, Esquire Eric D. Isicoff, Esquire Isicoff, Ragatz & Koenigsberg 1200 Brickell Avenue, Suite 1900 Miami, Florida 33131 Alexis M. Yarbrough, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Interim Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
The Issue Appellant raises three issues on appeal: (1) whether there is competent substantial evidence to support the Resolution; (2) whether the Commission departed from the essential requirements of the law by incorrectly applying and interpreting the law governing the application; and (3) whether the Commission denied Appellant due process by concluding that the application lacked sufficient detail necessary for a complete review. The parties agree, however, that the due process argument need not be addressed in this Final Order.
