02-003373 Larry Holley Tree And Lawn Spraying, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, March 11, 2003.

Summary: Petitioner`s violations of Section 337.16(2), Florida Statutes, and Rule 14-22.0141, Florida Administrative Code, are adequate to support a finding that Petitioner is non-responsible.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY HOLLEY TREE AND LAWN )

SPRAYING, INC., )

)

Petitioner, )

)

vs. ) Case No. 02 - 3373

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMM ENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a formal hearing in this cause

in Live Oak, Florida, on February 3, 2003. The following

appearances were entered:

APPEARANCES

For Petitioner: Lar ry Holley, President

Larry Holley Tree and

Lawn Spraying, Inc.

Route 11, Box 588

Lake City, Florida 32502

For Respondent: Barbara G. Hines, Esquire

Department of Transportation

605 Suwanne e Street

Haydon Burns Building, Mail Stop 58

Tallahassee, Florida 32399 - 0458

Angela T. Miller, Esquire

Department of Transportation

1109 South Marion Avenue

Mail Stop 2008

Lake City, Florida 32025 - 5874

STATEMENT OF THE ISSUE

The issue for determination is whether the Respondent should

declare the Petitioner "non - respon sible" for a period of one year;

and, accordingly, ineligible to bid on any Respondent contract or

perform as a material supplier, subcontractor, or consultant with

regard to any Respondent contract for that period of time.

PRELIMINARY STATEMENT

By lette r dated July 30, 2002, the Respondent's

representative notified the Petitioner that the Respondent

intended to declare the Petitioner non - responsible, pursuant to

Section 337.16, Florida Statutes, and Rule 14 - 22.0141, Florida

Administrative Code, for a per iod of one year because of the

behavior, conduct, and work performance of the Petitioner's

president.

On August 8, 2002, the Petitioner's request for a formal

administrative hearing with regard to the Respondent's intended

action was received by the Res pondent.

Subsequently, on August 22, 2002, the case was forwarded to

DOAH for formal proceedings.

During the final hearing, the Petitioner presented four

exhibits and the testimony of one witness. The Respondent

presented the testimony of eight witnes ses and seven exhibits.

The Transcript of the proceeding was filed with DOAH on

February 19, 2003.

The parties' post - hearing submissions have been reviewed

and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. On July 30, 20 02, the Respondent sent the Petitioner a

Notice of Intent to declare the Petitioner non - responsible to bid

on or be connected in any way for a period of one year with any

contract issued by the Respondent. Reasons for the intended

action, as cited in the Notice were: 1) numerous incidents

involving unprofessional behavior on the part of the Petitioner's

president in his relations with the Respondent's employees in the

course of performing contractual work for the Respondent; 2) the

attempt by the Petition er's president to avoid contractual

responsibility in a previous agreement with the Respondent by

insisting that the Respondent's employees perform functions

allocated to the Petitioner by the agreement; 3) attempts by the

Petitioner's president to dictate which of the Respondent's

employees would oversee contracts involving the Petitioner;

4) attempts by the Petitioner's president to remove the

Respondent's employees from supervision of contracts involving the

Petitioner when the employees disagreed w ith him; 5) substandard

performance by the Petitioner as evidenced by contractor field

performance scores on contracts with the Respondent; and 6) the

attempts of the Petitioner's president to receive payment from the

Respondent at the rate paid for more l ucrative "spot" applications

as opposed to less highly paid "strip" applications when the

contractual arrangement provided that the Respondent would

determine the applicable rate. This activity by the Petitioner

resulted in an unnecessary administrative b urden to the

Respondent's contract manager.

2. The Petitioner's president has threatened, intimidated,

and displayed unprofessional behavior toward Respondent's

employees. By letter dated October 1, 2001, he called the

Respondent's employees "incompet ent" and avowed that "this is like

letting the thief watch the vault or putting the dog inside the

chicken pen, at best, letting the blind lead the blind. Please

Lord, help their ignorance."

3. By letter to the Respondent dated May 3, 2002, the

Petitio ner's president accused the Respondent's employees of going

"to the very depths of evil or unfair competition - selective

enforcement."

4. By letter to the Respondent dated May 20, 2002, the

Petitioner's president accused the Respondent's personnel of "evil

and corrupt abuse of power by a handful of revengeful men" and

avowed that the Respondent selectively enforced its contracts and

inflicted evil.

5. Several letters continued in the same vein from the

Petitioner's president to the Respondent over ensuing months in

which the Petitioner's president referred to various of the

Respondent's employees as stupid, incompetent, slothful,

unknowledgeable, inexperienced, ignorant, ungodly, and wicked.

6. On July 3, 2002, the Petitioner's president called the

Respond ent's maintenance yard and spoke with the Respondent's

employees, subjecting them to a tirade of extreme profanity,

accusations, and threats.

7. On another occasion, the Petitioner's president told the

Respondent's employees that he would resolve a prob lem with a

Respondent's employee with something Petitioner's president had

under his truck seat. The involved Respondent's employees assumed

that the Petitioner's president was referencing a weapon under the

seat of the truck.

8. In the course of a Jul y 11, 2002, meeting, the

Petitioner's president became loud and abusive to the extent that

he could be heard through the walls of the Respondent's facility

where the meeting was conducted.

9. Effected Respondent's employees were intimated by the

Petitione r's president and took his various threats and harangues

of retaliation seriously.

10. As established by the conduct of the Petitioner's

president at the final hearing, where he frequently referenced a

recent stroke as the reason for his emotional manner , the

Petitioner's president presents as unstable and threatening to

others who disagree with him.

11. The Petitioner's president attempted to avoid the

Petitioner's responsibilities under contracts with the Respondent,

seeking to have the Respondent's e mployees tell the Petitioner's

employees what to do on the job in the performance of contractual

duties. Such an action by the Respondent's employees was

appropriately considered by them to be beyond the scope of their

responsibilities, since the agreemen ts between the Petitioner and

the Respondent basically specified that the Respondent determined

the scope of work to be done while the Petitioner determined the

methods to accomplish the specified tasks. Supervision of a

contractor's employees is the duty of the contractor, not the

Respondent.

12. The Petitioner's contractor field performance scores on

Respondent contracts E2E47 and E2E27 were 48 and 51, respectively,

well below the Respondent standards of acceptability that begin

with a minimum score of 70 out of a possible 100 points. The

scores were merited based on the Petitioner's failure to timely

clean up tree trimmings, tree limbs, rubble and debris near

roadways where such trash presented potential safety hazards to

the motoring public.

13. On Respondent contract E2D95, the Petitioner's president

knew that the scope of work involved spraying herbicide on a

"spot" basis and a "strip" basis with the Respondent to determine

which type would be applicable to each particular work order it

issued to the Petitioner under the contract. Despite these

requirements of the contract, the Petitioner's president attempted

to receive payment for the "spot" or higher - priced application

when compliance with contractual provisions required that

Petitioner accept payment at the lesser rate for "strip"

application. By not complying with the contract in this respect,

the Petitioner's president created unnecessary administrative

burdens for the Respondent's contract manager.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these proceedings.

Sections 120.569 and 120.57(1), Florida Statutes.

15. The Respondent is asserting that the Petitioner in

this case is non - responsible. Affirmati on of that issue must be

supported by a preponderance of the evidence in these

proceedings. Agrico Chemical Company v. State Department of

Environmental Regulation , 365 So. 2d 759 (Fla. 1st DCA 1979).

16. The Respondent's notice of intent to declare the

Petitioner non - responsible is issued pursuant to Section 337.16,

Florida Statutes, and Rule 14 - 22.0141, Florida Administrative

Code.

17. Section 337.16(2), Florida Statutes, in pertinent

part, reads as follows:

(2) For reasons other than delinquency in

progress, the department, for good cause, may

determine any contractor not having a certificate

of qualification nonresponsible for a specified

period of time or may deny, suspend, or revoke any

certificate of qualification. Good cause

includes, but is n ot limited to, circumstances in

which a contractor or the contractor's official

representative:

(a) Makes or submits to the department false,

deceptive, or fraudulent statements or materials

in any bid proposal to the department, any

application for a ce rtificate of qualification,

any certification of payment pursuant to

s. 337.11(10), or any administrative or judicial

proceeding; . . . .

18. The Petitioner has violated statutory proscriptions of

Section 337.16(2), Florida Statutes, due to failure to com ply

with contract requirements of payment or performance as

exemplified by the Petitioner's demands for and attempts to

obtain higher payment spot spraying as opposed to the agreed -

upon strip spraying rates of payment in contracts E2E47 and

E2E27.

19. R ule 14 - 22.0141, Florida Administrative Code, reads in

pertinent part, as follows:

14 - 22.0141 Contractor Non - Responsibility.

(1) Contractors who wish to bid for the

performance of construction contracts less than or

equal to $250,000, or any maintenance contracts,

are presumed to be responsible bidders unless the

Department determines that good cause exists to

declare the contractor non - responsible, which

shall include the following:

(a) One of the circumstances specified in Section

337.16(2), Florida St atutes, occurs:

(b) The contractor or its affiliate defaulted on

any contract, or the contract surety assumed

control of or financial responsibility for, any

contract of the contractor;

(c) The contractor's qualification to bid is

suspended, revoked, or denied by any public agency

or semi - public agency;

(d) The contractor made or submitted to the

Department false, deceptive, or fraudulent

statements, certifications, or materials in any

claim for payments or any information required by

any Department cont ract;

(e) The contractor failed to comply with contract

requirements, or failed to follow Department

direction in the execution of a contract;

(f) The contractor did not pay its subcontractors

or suppliers in a timely manner or in compliance

with contrac t documents;

(g) The contractor or affiliate(s) has been

convicted of a contract crime, as provided in

Section 337.165, Florida Statutes;

(h) An affiliate of the contractor has previously

been determined by the Department to be non -

responsible, and the s pecified period of

suspension, revocation, or denial remains in

effect;

(i) The contractor has demonstrated instances of

poor or unsatisfactory performance, deficient

management resulting in project delay, poor

quality workmanship, a history of payment of

liquidated damages, untimely completion of

projects where liquidated damages were not paid,

uncooperative attitude, contract litigation,

claims, or defaults;

(j) When the Department determines that any other

circumstance constituting "good cause" under

S ection 337.16(2), Florida Statutes, exists.

(2) Determination of Contractor Non -

Responsibility. The Contractor will be determined

to be non - responsible and ineligible to bid on

Department contracts for a period of time, based

on the seriousness of the d eficiency.

(a) Examples of factors affecting the seriousness

of a deficiency are:

1. Impacts on project schedule, cost, or quality

of work;

2. Unsafe conditions allowed to exist;

3. Complaints from the public;

4. Delay or interference with the bidding

process;

5. The potential for repetition;

6. Integrity of the public construction process;

and

7. Effect on the health, safety, and welfare of

the public.

20. Again, the Petitioner's unprofessional and bizarre

behavior, failure to comply with contract requirements, attempts

to evade or allocate the Petitioner's responsibilities to the

Respondent's employees, and below acceptable performance scores

is sufficient to determine that the Petitioner is in violation

of provisions of Rule 14 - 22.0141, Florida A dministrative Code.

RECOMMENDATIONS

Based on the foregoing Findings of Fact and Conclusions of

Law it is

RECOMMENDED:

That a final order be entered finding the Petitioner to be

non - responsible due to violations of Section 337.16(2), Florida

Statutes , a nd Rule 14 - 22.0141, Florida Administrative Code .

DONE AND ENTERED this 11th day of March, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The D eSoto 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 11th day of March, 2003.

COPIES F URNISHED :

Barbara G. Hines, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Stop 58

Tallahassee, Florida 32399 - 0458

Larry Holley

Larry Holley Tree and

Lawn Spraying, Inc.

Route 11, Box 588

Lake City, Florida 3202 4

Angela T. Miller, Esquire

Department of Transportation

1109 South Marion Avenue

Mail Stop 2008

Lake City, Florida 32025 - 5874

James C. Myers, Clerk of the Agency Proceedings

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail S top 58

Tallahassee, Florida 32399 - 0450

Pamela Leslie, General Counsel

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Stop 58

Tallahassee, Florida 32399 - 0450

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.

LARRY HOLLEY

LARRY HOLLEY TREE &

LAWN SP RAYING, INC.

RTE 11 BOX 588

LAKE CITY FL 32024