99-004544 Precision Traffic Counting, Inc., D/B/A Buckholz Traffic vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, May 3, 2000.

Summary: The Department of Transportation showed good cause to revoke Respondent`s pre-qualification to bid on the Department`s construction projects.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PRECISION TRAFFIC COUNTING, )

INC., d/b/a BUCKHOLZ TRAFFIC, )

)

Petitioner, )

)

vs. ) Case No. 99-4544

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Larry J. Sartin, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings, in

Jacksonville, Florida, on February 28 and 29, 2000.

APPEARANCES

For Petitioner: M. Lee Fagan, Esquire

3030 Hartley Road, Suite 105

Jacksonville, Florida 32257

and

Robert Aguilar, Esquire

Smith, Metcalf, Aguilar & Sieron, P.A.

Post Office Box 855

Orange Park, Florida 32067-0855

For Respondent: Brian F. McGrail, Esquire

Brian A. Crumbaker, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent may revoke the

Petitioner's qualification to bid on Florida Department of

Transportation contracts for which pre-qualification is required

for one year because of events and correspondence described in a

Notice of Intent from Respondent dated October 6, 1999.

PRELIMINARY STATEMENT

On October 6, 1999, Respondent, the Department of

Transportation, issued a Notice of Intent to Revoke

Qualification to Ms. Burita Allen, President of Petitioner,

Precision Traffic Counting, d/b/a Buckholz Traffic. On October

22, 1999, Petitioner timely filed a Request for Formal Hearing

challenging the Notice of Intent to Revoke Qualification.

Petitioner's Request for Hearing was filed by Respondent

with the Division of Administrative Hearings on October 27,

1999. The Request was designated Case No. 99-4544 and was

assigned to the undersigned. The final hearing was scheduled

for February 28 through March 1, 2000, by Notice of Hearing

entered November 24, 1999.

At the formal hearing it was recognized that Respondent had

the burden of proof in this case. At the suggestion of the

undersigned and with the agreement of the parties, the style of

the case has not be modified to reflect this fact.

At the formal hearing Respondent presented the testimony of

ten witnesses and offered 15 exhibits. Respondent's exhibits,

numbered 1, and 3 through 14, were admitted into evidence.

Respondent's Exhibit number 23 was rejected. Petitioner

presented the testimony of one witness and offered 11 exhibits.

The exhibits, numbered 1 through 5, 9, and 14 through 18, were

accepted into evidence.

A transcript of the hearing was ordered. The Transcript

was filed March 29, 2000. Proposed orders were, therefore,

required to be filed on or before April 10, 2000. Both parties

timely filed Proposed Recommended Orders. The Proposed

Recommended Orders filed by the parties have been fully

considered in entering this Recommended Order.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, Precision Traffic Counting Inc., d/b/a

Buckholz Traffic (hereinafter referred to as "Buckholz

Traffic"), is a Florida Corporation with its office located in

Jacksonville, Duval County, Florida.

2. Buckholz Traffic is engaged in the business of, among

other things, installing traffic signals and signs, and related

construction work.

3. Burita Allen is the President and sole stockholder of

Buckholz Traffic. Ms. Allen runs the day-to-day operations of

Buckholz Traffic.

4. Buckholz Traffic is certified by the Department of

Transportation to bid and perform on construction contracts in

excess of $250,000.00. Buckholz Traffic has been working with

the Department of Transportation since 1966.

5. Respondent, Department of Transportation (hereinafter

referred to as the "Department"), is an agency of the State of

Florida. The Department is charged with the authority to, among

other things, award construction contracts and issued

certificates of qualification to bid on Department contracts

pursuant to Section 337.14, Florida Statutes.

B. Jeffrey Buckholz .

6. Jeffrey Buckholz holds a Florida Professional

Engineering license. Mr. Buckholz is also licensed as an

electrician in Florida.

7. Mr. Buckholz is an employee and principal of J.W.

Buckholz Traffic Engineering (hereinafter referred to as

"Buckholz Traffic Engineering"). Buckholz Traffic Engineering

is located in Jacksonville.

8. In his capacity with Buckholz Traffic Engineering, Mr.

Buckholz has performed engineering services for the Department

and has provided training to Department employees.

9. Mr. Buckholz is not technically an employee, officer,

or stockholder of Buckholz Traffic. Nor has Mr. Buckholz

received any compensation directly from Buckholz Traffic.

10. Despite the lack of formal relations with Buckholz

Traffic, Mr. Buckholz has performed services for Buckholz

Traffic and has held himself as representing Buckholz Traffic.

These actions have been taken with full knowledge and approval

of Buckholz Traffic. For example, Mr. Buckholz has used his

electrician's license to pull electrical permits required by

Buckholz Traffic to perform work Buckholz Traffic was

responsible for.

11. Mr. Buckholz also served as project manager on

projects for Buckholz Traffic, including the projects described,

infra .

12. Finally, Mr. Buckholz has allowed Buckholz Traffic to

utilize his name in an effort to utilize trade recognition of

his name.

13. Based upon Mr. Buckholz' actions, as described, infra ,

and Mr. Buckholz' testimony at hearing, Mr. Buckholz has

evidenced an inability to control anger and to act in a non-

aggressive, non-threatening manner. Mr. Buckholz, due to his

arrogance, has a difficult time following the directions of

others and does not react responsibly to anyone who he believes

is questioning his decisions.

C. The Haines Street Project .

14. The Department awarded a contract for work on the

Haines Street Expressway (hereinafter referred to as the "Haines

Street Project"). The Haines Street Expressway is located in

Jacksonville, Duval County, Florida. Duval County is located in

the Department's District 2.

15. The Standard Specifications for Road and Bridge

Construction, 1996 Edition (hereinafter referred to as the

"Standard Specifications"), applied to all work on the Haines

Street Project.

16. Standard Specification 8-5 provides the following:

8-5 Qualifications of Contractor's

Personnel.

. . . .

Whenever the Engineer shall determine that

any person employed by the Contractor is

incompetent, unfaithful, intemperate,

disorderly or insubordinate, such person

shall, upon notice, be discharged from work

and shall not again be employed on it except

with the written consent of the Engineer.

Should the Contractor fail to remove such

person or persons the Engineer may withhold

all estimates which are or may become due,

or may suspend the work until such orders

are complied with. . . .

This provision of the Standard Specifications provides

absolute authority in the Department to require that

contractors discharge persons employed by the

contractor under the circumstances specified.

17. The prime contractor on the Haines Street Project was

Hubbard Construction Company (hereinafter referred to as

"Hubbard"). Kevin Oswendel acted as the Project Manager for

Hubbard on the Haines Street Project.

18. Buckholz Traffic was one of the subcontractors on the

Haines Street Project. Buckholz Traffic's obligations as

subcontractor included the sale and installation of large signs

to be suspended over the Haines Street Expressway. Mr. Buckholz

acted as Project Manager for Buckholz Traffic on the Haines

Street Project.

19. The Department's Resident Engineer for the Haines

Street Project was David Sadler. The Department's Project

Manager for the Haines Street Project was Carrie Stanbridge, a

Florida licensed Professional Engineer. Ms. Stanbridge was

responsible for project implementation, project oversight,

project construction in accordance with the contract

specifications, Special Conditions, and the Standard

Specifications. Ed Lavant was an Inspector for the Department

on the Haines Street Project.

20. On or about November 4, 1998, work scheduled for the

Haines Street Project included the inspection of signs. The

unloading of beams and trusses for the signs had been scheduled

for November 3, 1998, but the manufacturer of the beams and

trusses was not able to meet the scheduled delivery time.

21. Any activity on the Haines Street Project which may

disrupt traffic was required to be performed consistent with a

Maintenance of Traffic Plan (hereinafter referred to as the

"MOT"). The MOT for the Haines Street Project originally

prepared by Hubbard had been modified prior to November 4, 1998,

by Mr. Buckholz. In particular, Mr. Buckholz had revised the

times in the MOT when traffic could be disrupted. The revised

MOT was in effect on November 4, 1998. The MOT provided that

there would be no disruption of traffic between 3:15 p.m. and

6:30 p.m.

22. There were no anticipated lane closures at the project

site after November 3, 1998, until midnight on November 5, 1998.

The scheduled unloading of beams and trusses on November 3,

1998, was, however, delayed and the first delivery truck arrived

on November 4, 1998. The truck arrived prior to 3:15 p.m. with

heavy steel support beams and trusses to be used for signs on

the Haines Street Project by Buckholz Traffic. Mr. Buckholz was

present during the delivery.

23. The subcontractor responsible for traffic control on

the Haines Street Project was Acme Barricades. Although Acme

Barricades did not know that MOT would be required on November

4, 1998, Acme Barricades was able to perform the required MOT

for the lane closure required for the truck to be offloaded.

Because of inadequate notice of the arrival of the truck,

however, special arrangements had to be made to provide the MOT

devices used.

24. Buckholz Traffic also expected a second delivery truck

later on November 4, 1998. Therefore, Mr. Buckholz stayed at

the site to await the second truck so that he could supervise

its unloading. All of the MOT devices that had been used for

the first truck, however, had been removed from the site.

Mr. Buckholz had informed Mr. Oswendel that there was no need

for Acme Barricades to return later in the day for the second

truck.

25. Mr. Lavant was aware that there were no MOT devices

available at the site and that it was approaching 3:15 p.m., the

cutoff time for lane closures provided in the MOT that Mr.

Buckholz had prepared for Hubbard. Therefore, Mr. Lavant

approached Mr. Buckholz and informed him that he would not be

allowed to offload the second truck after 3:15 p.m. because of

the disruption to traffic the offloading would cause by the lane

closure that would be required by the MOT.

26. Mr. Buckholz informed Mr. Lavant that he intended to

offload the second truck by parking the eighteen-wheel delivery

truck and an eighteen-wheel boom truck to be used to lift the

beams and trusses side-by-side on an on ramp which leads from

the Haines Street Expressway to the Hart Bridge. Mr. Buckholz

told Mr. Lavant that he intended to divert traffic entering the

on ramp around the trucks on a paved area between the ramp and

the through-traffic lanes that continued beyond the on ramp.

This area is referred to as a "gore area." The gore area is

marked by "chevrons" and there is an attenuator at the end of

the gore area. The gore area Mr. Buckholz intended to use was

not normally used for traffic but was intended as a buffer

between the on ramp and the through-traffic lanes on the Haines

Street Highway.

27. While it might have been possible to offload the

second truck without directly blocking the through-traffic lanes

that continued past the on ramp, there still would have been

disruption to the traffic using those lanes and Mr. Lavant had

the authority to insist on proper MOT compliance. There would

also have been disruption of traffic using the on ramp, which

was only 14 feet wide. The potential disruption of traffic

during the peak traffic rush hour caused a reasonable concern

about the safety of the unloading of the truck as proposed by

Mr. Buckholz.

28. Mr. Lavant decided that Mr. Buckholz' plan for

unloading the truck, which was anticipated to occur during the

peak traffic rush hour, would disrupt traffic flow and would not

be safe. This was a determination which the Department, and not

Mr. Buckholz, had the authority to make.

29. Mr. Buckholz' plan was also inconsistent with the MOT,

which he had prepared for approval by the Department, because it

would effectively close lanes during the prohibited period

between 3:15 p.m. and 6:30 p.m. and the safety devices

contemplated by the MOT were not available at the time that

Mr. Buckholz indicated he intended to offload the truck. The

MOT devices required included an arrow board closing the on ramp

lane, an off-duty law enforcement officer, and traffic cones.

30. When Mr. Lavant informed Mr. Buckholz that he could

not offload the truck when it arrived because his offload plan

was inconsistent with the MOT, Mr. Buckholz informed Mr. Lavant

that he was not going to close any traffic lane and, therefore,

the offloading of the truck would not be inconsistent with the

MOT. Mr. Buckholz insisted that he intended to offload the

truck despite Mr. Lavant's directive to the contrary.

31. Mr. Buckholz became more and more confrontational and

belligerent with Mr. Lavant and insisted that Mr. Lavant could

not stop him from offloading the second truck. It became

apparent to Mr. Lavant that Mr. Buckholz did not intend to

follow his direction.

32. Mr. Lavant realized that Mr. Buckholz intended to

offload the truck when it arrived regardless of his

instructions. Therefore, Mr. Lavant telephoned Ms. Stanbridge,

the Project Engineer, and requested that she come to the site.

33. Ms. Stanbridge discussed the matter with Mr. Buckholz

and informed him that he would not be allowed to offload the

truck in the manner he indicated he planned to follow.

Mr. Buckholz was no more cooperative with Ms. Stanbridge than he

had been with Mr. Lavant. Mr. Buckholz continued to insist that

he was not going to block any traffic lane and, therefore, he

intended to offload the truck when it arrived. Mr. Buckholz was

belligerent and uncooperative with Ms. Stanbridge.

34. Ms. Stanbridge felt physically threatened by Mr.

Buckholz. Due to Mr. Buckholz' behavior and his refusal to

comply with Ms. Stanbridge's instructions, Ms. Stanbridge

telephoned Mr. Sadler, the Resident Engineer, and requested that

he come to the site. He agreed.

35. Mr. Sadler spoke with Ms. Stanbridge and Mr. Lavant

when he arrived at the site. He then discussed the matter with

Mr. Buckholz. Mr. Buckholz told Mr. Sadler that he planned to

place the two trucks on the on ramp and offload the beams and

trusses when they arrived. Mr. Sadler informed Mr. Buckholz

that he would not be allowed to offload the truck because of the

disruption to traffic Mr. Buckholz' planned activity would

cause. Mr. Buckholz continued to be uncooperative and

belligerent toward Mr. Sadler.

36. Due to Mr. Buckholz' continued insubordination,

Mr. Sadler told Mr. Buckholz that he intended to telephone law

enforcement. Mr. Buckholz became enraged, "got into Mr.

Sadler's face," and began yelling at him.

37. Mr. Sadler telephoned law enforcement and also

telephoned Mr. Oswendel, Hubbard's Project Manager. Two law

enforcement officers arrived first. After Mr. Sadler informed

the law enforcement officers of the situation, they informed

Mr. Buckholz that the Department was in charge of the roads and,

therefore, they would support the Department's decision not to

allow Mr. Buckholz to place trucks on the on ramp.

38. Mr. Oswendel arrived between 4:00 p.m. and 4:30 p.m.

Mr. Oswendel attempted to discuss the matter with Mr. Buckholz

and explained to Mr. Buckholz that he was required to follow the

directions of the Department's employees. The discussion

quickly turned into a loud confrontation.

39. After having unsuccessfully argued his position with

three Department employees, law enforcement, and Mr. Oswendel,

Mr. Buckholz became enraged at Mr. Oswendel. Mr. Buckholz

threatened Mr. Oswendel with physical violence and suggested

that they go behind a building and resolve the matter by

fighting. Although Mr. Oswendel was also angry, Mr. Oswendel

refused Mr. Buckholz' unprofessional and uncivilized offer.

40. Mr. Oswendel instructed Mr. Buckholz that he was not

to offload the truck in the manner that he had informed the

Department he intended to use. He then informed Mr. Sadler that

he had instructed Mr. Buckholz not to perform any more work at

the site that day. Mr. Oswendel then left the site.

41. Mr. Buckholz remained at the site after Mr. Oswendel

had left. Mr. Buckholz did not take any action to indicate that

he intended to leave the site or that he would follow

Mr. Oswendel's direction not to perform any more work at the

site that day.

42. The second delivery truck finally arrived

approximately 7:00 p.m. Mr. Buckholz again requested that he be

allowed to unload the truck from the on ramp. When again told

that he could not use the on ramp, Mr. Buckholz requested and

was given permission to offload the truck from a side street

which ran next to the on ramp.

43. While it was reasonable for Mr. Buckholz to initially

contend that he should be allowed to offload the second truck

from the on ramp, it was apparent that the Department had

properly rejected his plan. Even having been told by three

Department employees, Hubbard's Project Manager, and law

enforcement that he could not use the on ramp to offload the

second truck, Mr. Buckholz continued to insist that he be

allowed to do so.

44. Mr. Buckholz has insisted that he reasonably believed

that he could offload the second truck safely and consistently

with the MOT and, therefore, had followed Department directives.

This assertion is rejected because it is not supported by the

evidence in this case. The evidence proved that it was

Mr. Buckholz' ego which was the real cause of Mr. Buckholz'

refusal to comply. Even if Mr. Buckholz had proved that he

reasonably believed that he could offload the second truck

safely and consistently with the MOT, his continued failure to

accept the directive of Department employees with authority to

refuse to allow offloading from the on ramp was not reasonable.

45. By letter dated November 10, 1998, Henry Haggerty, the

Department's District Construction Engineer, advised Hubbard

that Mr. Buckholz would not be allowed back on the project site

in any capacity. This directive was consistent with the

Department's authority under Standard Specification 8-5. The

letter indicated that Buckholz Traffic's failure to comply with

the Department's direction would "result in further contractual

action."

46. By letter dated November 10, 1998, Hubbard forwarded a

copy of Mr. Haggerty's letter to Mr. Buckholz and ordered

Mr. Buckholz to "conduct [himself] accordingly."

47. Mr. Oswendel also sent a letter to Buckholz Traffic

addressing Mr. Buckholz' unprofessional and uncivil behavior of

November 4, 1998. Mr. Oswendel explained his understanding of

the MOT requirements for the Haines Street Project and why

Mr. Buckholz' actions had been inconsistent with those

requirements. Mr. Oswendel informed Mr. Buckholz of the

following: "I must insist that you develop a professional

approach and civil demeanor toward Hubbard Construction, the

FDOT, and anyone associated with the contract. Your actions

yesterday were completely unacceptable."

48. No action was taken by Buckholz Traffic to correct

Mr. Buckholz' problem controlling his temper following the

November 4, 1998, incident on the Haines Street Project. Nor

was Mr. Buckholz disciplined in any manner by Buckholz Traffic

for his actions on November 4, 1998. Mr. Buckholz did not,

however, return to the project site.

D. The Baymeadows/Hampton Glen Project .

49. The Department awarded a contract for the installation

of mast-arm signals and curb cut ramps for wheelchair access in

a project referred to as the Baymeadows/Hampton Glen project

(hereinafter referred to as the "Baymeadows Project").

Baymeadows and Hampton Glen are located in Jacksonville.

50. The Standard Specifications governed all work on the

Baymeadows Project, including Standard Specification 8-5.

51. The prime contractor on the Baymeadows Project was

Buckholz Traffic. Mr. Buckholz was designated and acted as

Project Manager for Buckholz Traffic on the Baymeadows Project,

although Ms. Allen also communicated with the Department

concerning the project. A subcontractor was engaged by Buckholz

Traffic to perform the curb cut work on the project.

52. The Department's Resident Engineer for the Baymeadows

Project was David Sadler. The Department's Project Manager for

the Baymeadows Project was Stephanie Maxwell, a Florida licensed

Professional Engineer. Ms. Maxwell was responsible for project

implementation, project oversight, project construction in

accordance with the contract specifications, Special Conditions,

and the Standard Specifications.

53. Mr. Lavant and David Schweppe were Inspectors for the

Department on the Baymeadows Project. Mr. Schweppe had been

employed by the Department only since August 1998.

54. During the Spring of 1999 Mr. Lavant informed

Ms. Maxwell that curb cuts on the project were not in compliance

with contract specifications. Ms. Maxwell informed Buckholz

Traffic in a letter dated April 20, 1999, that the construction

of the curb cuts was not in compliance with the Roadway and

Traffic Design Standards. Ms. Maxwell informed Buckholz Traffic

that the curb cuts would have to be replaced.

55. Ms. Allen responded to Ms. Maxwell's letter by letter

dated May 1, 1999. Ms. Allen informed the Department that

"[Buckholz Traffic had] no intention of removing and

reinstalling the curb cuts without appropriate compensation and

additional contract time." Such demands are required to be made

after a contract is completed, not as a condition for contract

fulfillment.

56. Following receipt of Ms. Allen's letter, Ms. Maxwell

arranged a meeting with Mr. Buckholz to discuss the curb cuts.

The meeting was scheduled for May 28, 1999.

57. Ms. Maxwell and Mr. Schweppe went to the project site

on May 28, 1999, for the scheduled meeting. Mr. Buckholz was

already there waiting for them.

58. Ms. Maxwell, Mr. Schweppe, and Mr. Buckholz went to

two of the defective curb cuts and Ms. Maxwell explained to

Mr. Buckholz why the curb cuts were insufficient. At some

point, Mr. Buckholz stated that the inspection of the curb cuts

was the worst inspection job he had ever seen. Mr. Schweppe

responded by saying that the construction job was the worst that

he had ever seen.

59. Mr. Buckholz, who does not take any criticism lightly,

especially from anyone that he considers "inferior" to himself,

became very upset about Mr. Schweppe's comment about the

construction of the curb cuts. Mr. Buckholz got very close to

Mr. Schweppe and began yelling and cursing at him. Mr. Buckholz

was physically threatening and attempted to provide a physical

altercation with Mr. Schweppe. Neither Mr. Schweppe nor

Ms. Maxwell responded in kind to Mr. Buckholz.

60. While the comments by Mr. Buckholz concerning the

Department's inspection and the comments by Mr. Schweppe

concerning the construction by the subcontractor that performed

the curb cut work were unnecessary, Mr. Buckholz' response was

in no way justified or professional.

61. Ms. Maxwell attempted to get the discussion back on

track by moving to a third curb cut. She crossed the street to

the sidewalk to the location of the third curb cut. Mr.

Schweppe followed.

62. Mr. Buckholz followed Mr. Schweppe continuing to yell,

curse, threaten, and attempting to provoke Mr. Schweppe. When

Mr. Buckholz reached the sidewalk, he continued to walk away

from the curb cut and the road down into a swale or ditch next

to the sidewalk. Mr. Buckholz told Mr. Schweppe to come down

into the ditch so he could "whip his ass." Mr. Buckholz

continued to challenge Mr. Schweppe. At some point Mr. Schweppe

did respond to Mr. Buckholz by telling him that "there is plenty

of room right here," in reference to where Mr. Schweppe was

standing.

63. After it became apparent to Mr. Buckholz that

Mr. Schweppe was not going to come to him, he returned to where

Ms. Maxwell and Mr. Schweppe were standing waiting for him. As

soon as he got to Mr. Schweppe, Mr. Buckholz struck Mr. Schweppe

two times in the face with his fist without warning,

provocation, or any justification. Nothing that Mr. Schweppe

had done gave Mr. Buckholz even the slightest cause to strike

Mr. Schweppe.

64. Mr. Buckholz simply struck Mr. Schweppe because he had

lost total control of himself and believed that resolving a

confrontation by resorting to physical violence was acceptable

conduct. Even at the formal hearing of this case, Mr. Buckholz

continued to express his belief that such conduct is an

acceptable way to resolve differences.

65. After being "sucker" punched by Mr. Buckholz,

Mr. Schweppe grabbed Mr. Buckholz in an effort to prevent him

from any further attack. Mr. Schweppe was able to wrestle

Mr. Buckholz to the ground, where he held him until he thought

Mr. Buckholz was calming down. At no time did Mr. Schweppe

strike Mr. Buckholz.

66. After Mr. Schweppe received assurances from

Mr. Buckholz that he had calmed down, Mr. Schweppe let

Mr. Buckholz up. Mr. Schweppe had Mr. Buckholz pinned face down

by his neck. When Mr. Schweppe released Mr. Buckholz, he did

not push his face into the dirt. Mr. Schweppe and Ms. Maxwell

immediately crossed the street to return to Ms. Maxwell's

automobile so that she could telephone the police. Mr. Buckholz

followed them and attempted to attack Mr. Schweppe again, but

Ms. Maxwell attempted to stand in his way. When she did,

Mr. Buckholz grabbed Ms. Maxwell by her arms and shoved her

aside.

67. Mr. Buckholz continued to yell, curse, and threaten

Mr. Schweppe, who had turned to face him.

68. Ms. Maxwell, who was reasonably concerned about her

safety and that of Mr. Schweppe, telephoned law enforcement.

Mr. Schweppe filed a complaint against Mr. Buckholz and he was

eventually arrested. Mr. Schweppe suffered serious injuries to

his face which required medical attention as a result of Mr.

Buckholz' attack.

69. Following the May 28, 1999, assault on Mr. Schweppe,

the Department sent a letter dated June 1, 1999, to Ms. Allen

informing her that "Mr. Jeffery Buckholz was no longer allowed

to be present at the job site in any capacity. Failure on the

part of Buckholz Traffic to comply with this directive will

result in additional actions under the contract." This letter

was from Greg Xanders, the State Construction Engineer for the

Department.

70. Mr. Xanders' letter of June 1, 1999, and the directive

therein, was authorized by, and consistent with, Standard

Specification 8-5.

71. Buckholz Traffic was also directed to provide proof

that Mr. Buckholz would no longer be a threat to Department

employees before Mr. Buckholz was allowed to return to any

Department project job site. In light of Mr. Buckholz' actions,

this request was reasonable.

E. Buckholz Traffic's Response to the Department's June 1,

1999, Directive .

72. Ms. Allen responded to the Department's June 1, 1999,

letter on behalf of Buckholz Traffic by letter dated June 6,

1999. Ms. Allen's response was as arrogant and unreasonable as

the conduct of Mr. Buckholz that precipitated the June 1, 1999,

letter. Based upon a reading of Ms. Allen's June 6, 1999,

letter as a whole, Buckholz Traffic essentially told the

Department it intended to take no action with regard to

correcting Mr. Buckholz' conduct. Instead of indicating any

concern over Mr. Buckholz' inappropriate conduct, Ms. Allen

stated, in part, the following:

We fully intend on completing this and other

FDOT assignments using the same staff that

was initially assigned to the projects.

Consequently, we directly challenge your

self-serving interpretation of Section 8-5

of the Standard Specification and will not

cooperate with directives that are issued

without due process and that fly in the face

of basic freedoms guaranteed in the US

Constitution.

Ms. Allen went on to state the following, which

summaries the attitude of Buckholz Traffic concerning

its unwillingness to give the Department any

assurances that Mr. Buckholz would not be a threat to

the safety of other Department employees:

So what do I need to clear Mr. Buckholz'

good name, a "letter of normalcy" from a

shrink or a "certificate of contriteness"

from the local Baptist Church?"

73. Ms. Allen and Buckholz Traffic responded to the

legitimate fears of the Department about Mr. Buckholz' conduct

with sarcasm rather than in a meaningful way. Ms. Allen and

Buckholz Traffic made no effort to cooperate with the Department

or attempt to correct a problem with a person that had

consistently held himself out as an important part of Buckholz

Traffic.

74. Buckholz Traffic told the Department it would not

comply with the directive the Department was authorized to issue

pursuant to Standard Specification 8-5.

75. By letter dated June 17, 1999, Mr. Xanders responded

to Ms. Allen's June 6, 1999, letter. Mr. Xanders informed Ms.

Allen that the Department welcomed any explanation of the

incident she wished to give. Mr. Xanders also suggested that

legal counsel for Buckholz Traffic, if any, could contact

Department legal counsel to provide an explanation. Mr. Xanders

restated the Department's directive, clarifying that the

directive only pertained to construction work by Mr. Buckholz

and not his engineering work. Ms. Allen made no effort to

respond to Mr. Xanders' offers.

F. Mr. Buckholz' Return to Baymeadows .

76. A meeting was scheduled for August 11, 1999, between

Ms. Maxwell and representatives of the City of Jacksonville

(hereinafter referred to as the "City"). The meeting had been

scheduled to turn on the newly installed traffic signals.

77. In direct contravention to the Department's directive

to Buckholz Traffic that Mr. Buckholz not return to the

Baymeadows Project site, Mr. Buckholz returned to the site on

August 11, 1999, to attend the meeting Ms. Maxwell had scheduled

with the City. At no time did Ms. Allen, Mr. Buckholz, or

anyone else on behalf of Buckholz Traffic request permission of

the Department for Mr. Buckholz to return to the project site.

78. Mr. Buckholz and Ms. Allen fully understood that

Mr. Buckholz was not to return to the Baymeadows Project site.

Despite their understanding of the Department's reasonable

directive, Mr. Buckholz claimed to have returned to the site at

the invitation of representatives of the City. He also claimed

to have returned to the site to assist the City with the

installation of traffic light timing software he had prepared

and not in any capacity with Buckholz Traffic. Testimony in

support of Mr. Buckholz' claims was not convincing. Nor was the

evidence concerning the necessity that Mr. Buckholz be on the

site during a meeting with Department employees convincing.

79. Mr. Buckholz simply chose to ignore the Department's

directive not to return to the site. Mr. Buckholz continued to

believe that his actions on May 28, 1999, were justified and

failed to consider the harm his conduct had caused to Department

employees. Mr. Buckholz arrogantly volunteered his services to

the City so that he could flaunt the Department's directive not

to appear at the site. Had Mr. Buckholz given the Department's

directive any consideration, he could have waited for the City

and Department to complete their meeting and then meet with City

representatives to perform any work required of him.

G. The Department's Reaction to the Failure of Buckholz

Traffic to Comply with the Directive of June 1, 1999 .

80. Mr. Xanders has been responsible for providing policy

and procedure guidelines for the Department's Districts,

carrying out construction programs, and providing training and

quality assurance initiatives.

81. In his capacity as State Construction Engineer,

Mr. Xanders reviewed Mr. Buckholz' conduct described supra , and

the reactions of Buckholz Traffic to Department directives

concerning Mr. Buckholz' conduct. Mr. Xanders reviewed and

relied upon correspondence from Ms. Allen dated May 1, 1999,

May 16, 1999, and June 6, 1999.

82. Based upon the foregoing, the Department informed

Buckholz Traffic by letter dated October 6, 1999, that the

Department was revoking Buckholz Traffic's qualification to bid.

CONCLUSIONS OF LAW

A. Jurisdiction .

83. The Division of Administrative Hearings has

jurisdiction of the parties to, and the subject matter of, this

proceeding. Section 120.57, Florida Statutes (1997).

B. The Burden and Standard of Proof .

84. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

proceeding. Antel v. Department of Professional Regulation , 522

So. 2d 1056 (Fla. 5th DCA 1988); Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino

v. Department of Health and Rehabilitative Services , 348 So. 2d

249 (Fla. 1st DCA 1977).

85. In this proceeding, it is the Department that is

asserting the affirmative: that there is good cause for the

Department to revoke the qualification of Buckholz Traffic to

bid on Department contracts for which prequalification is

required by Section 337.14, Florida Statutes; and to declare

that Buckholz Traffic is prohibited from bidding on any other

construction or maintenance contract and from acting as a

material supplier, subcontractor, or consultant on any

Department contract or project during the period of revocation

pursuant to Section 337.16, Florida Statutes, and Rule 14-

22.012, Florida Administrative Code. The Department, therefore,

had the ultimate burden of proof.

86. Buckholz Traffic has argued that the standard of proof

which the Department was required to meet in this case was the

"clear and convincing" standard because an action to revoke a

certificate of qualification is in effect a license revocation

proceeding. In support of this argument, Buckholz Traffic

relies on Capeletti Brother, Inc. v. Department of

Transportation , 362 So. 2d 346 (Fla. 1st DCA 1978) and related

cases, and cases dealing with actions to revoke business and

professional licenses.

87. Cases dealing with actions to revoke business and

professional licenses are distinguishable from this case and the

Capeletti Brother decision concerning the revocation of a

certificate of qualification has been superceded by Section

337.167, Florida Statutes, adopted by the Legislature in 1983:

(1) A certificate to bid on a department

contract, or to supply services to the

department, is intended to assist the

department in determining in advance the

performance capabilities of entities seeking

to supply goods and services to the

department and is not a "license" as defined

in s. 120.52. The denial or revocation of a

certificate is not subject to the provisions

of s. 120.60 or s. 120.68(3). The

provisions of ss. 120.569 and 120.57 are

applicable to the denial or revocation of

such certificate.

See White Construction Co., Inc. v. Department of

Transportation , 526 So. 2d 998 (Fla. 1st DCA 1988).

88. Based upon the foregoing, it is concluded that the

Department was required to meet its burden of proof in this case

by the preponderance of the evidence. J.W.C. Co. , supra .

89. The Department met its burden in this case. The

Department also met the higher burden of clear and convincing,

even though it was not required to do so.

C. Certificates of Qualification .

90. Any persons desiring to bid on proposed Department

construction contracts in excess of $250,000.00 are required to

be certified by the Department as qualified pursuant to Section

337.14, Florida Statutes, and Rule 14-22.011, Florida

Administrative Code, prior to bidding. Buckholz Traffic has

been certified qualified by the Department.

91. Section 337.16(2), Florida Statutes, provides ground

for the Department to revoke the qualification of any contractor

to bid for "good cause":

(2) For reasons other than delinquency in

progress, the department, for good cause . .

. may deny, suspend or revoke any

certificate of qualification.

Section 337.16(2), Florida Statutes, goes on to list

several examples of what constitutes "good cause," but

provides that the examples do not constitute an

exclusive list of what constitutes "good cause." None

of the specified examples apply to this matter.

92. The conduct supporting a determination of "good cause"

contemplated by Section 337.16(2), Florida Statutes, must be

conduct of the "contractor or the contractor's official

representative."

93. Rule 14-22.012(1), Florida Administrative Code,

provides that a determination that a contractor's qualification

to bid should be revoked for good cause also constitutes a

determination of non-responsibility to bid on any construction

or maintenance contract and a bar from acting as a material

supplier, subcontractor, or consultant on any Department

contract or project during the period of revocation.

D. Good Cause Exists in This Case .

94. Much of the argument of the parties in their Proposed

Recommended Orders has been devoted to the standard of proof and

the scope of the appropriate charges against Buckholz Traffic.

Regardless of what standard of proof is applied and even

restricting the actions which can be considered in determining

whether good cause for the Department's proposed revocation

exists in this case to Ms. Allen's letter of June 6,1999, the

evidence proved that good cause exists in this case to revoke

Buckholz Traffic's certificate of qualification.

95. First, the actions of Mr. Buckholz alone constitute

good cause for the Department's actions. Mr. Buckholz' actions

indicated a pattern of abusive, intemperate, disorderly, and

insubordinate conduct in dealing with Department employees.

While Mr. Buckholz may not have technically been an employee of

Buckholz Traffic, he was treated as an important and integral

part of the Buckholz Traffic. Mr. Buckholz refused to follow

proper Department directives, committed an assault and battery

against a Department employee, and refused to follow a directive

of the Department not to return to the Baymeadows site. At no

time has Mr. Buckholz taken any action to give the Department

assurances that the conduct he displayed during 1998 and 1999

will not continue.

96. Secondly, the actions of Buckholz Traffic in dealing

with Mr. Buckholz also constitute good cause for the revocation

of its qualification to bid. Buckholz Traffic was aware of

Mr. Buckholz' problem controlling his temper as early as

November 1998 when he lost control at the Haines Street Project.

97. Buckholz Traffic's June 6, 1999, response to

Mr. Xander's letter of June 1, 1999, directly challenges the

directions of the Department and clearly indicates the intent of

Buckholz Traffic to take no action to ensure that further acts

of violence are not perpetrated against Department employees by

Mr. Buckholz.

98. The Department had the authority pursuant to Standard

Specification 8-5 to direct Buckholz Traffic not to allow

Mr. Buckholz to return to a Department construction project

until some assurances were given to the Department that Mr.

Buckholz could control his temper. Buckholz Traffic not only

made no effort to comply with this directive, it indicated it

had no intention of doing so. These actions constitute "good

cause" as used in Section 337.16, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

revoking the qualification to bid of Precision Traffic Counting,

d/b/a Buckholz Traffic, for a period of one year from the date

of the final order and that Precision Traffic Counting, d/b/a

Buckholz Traffic be considered non-responsible to bid on any

construction or maintenance contract and to act as a material

supplier, subcontractor, or consultant on any Department

contract or project during the period of the revocation.

DONE AND ENTERED this 3rd day of May, 2000, in Tallahassee,

Leon County, Florida.

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of May, 2000.

COPIES FURNISHED:

M. Lee Fagan, Esquire

3030 Hartley Road, Suite 105

Jacksonville, Florida 32257

Robert Aguilar, Esquire

Smith, Metcalf, Aguilar & Sieron, P.A.

Post Office Box 855

Orange Park, Florida 32067-0855

Brian F. McGrail, Esquire

Brian A. Crumbaker, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas F. Barry, Secretary

Attn: James C. Myers, Clerk

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.