09-001232 Department Of Business And Professional Regulation, Division Of Florida Land Sales, Condominiums, And Mobile Homes vs. Waterfront Park Corporation Status: Closed Recommended Order on Friday, October 30, 2009.

Summary: The Division failed to prove that the Cooperative did not use its "best efforts" to obtain and maintain adequate insurance to protect its property.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF FLORIDA LAND SALES, )

CONDOMINIUMS, AND MOBILE HOMES, )

)

Petitioner, )

)

vs. ) Case No. 09-1232

)

WATERFRONT PARK CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

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

by Administrative Law Judge Carolyn S. Holifield, on April 29,

2009, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: William R. Wohlsifer, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Kerry H. Brown, Esquire

Post Office Box 15223

St. Petersburg, Florida 33733-5223

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent used its "best efforts" to obtain and maintain adequate insurance to protect its property in accordance with Subsection 719.104(3), Florida

Statutes (2008), 1 as alleged in the Notice to Show Cause; and,

if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

By Notice to Show Cause dated February 6, 2009, Petitioner,

Department of Business and Professional Regulation, Division of

Florida Land Sales, Condominiums, and Mobile Homes ("Division"),

alleges that Respondent, Waterfront Park Corporation

("Association"), was in violation of Subsection 719.104(3),

Florida Statutes, by failing to obtain and maintain adequate

insurance to protect the Association's property. According to

the Notice to Show Cause, the foregoing allegation was based on

evidence that was presented to the Division, and, if true, "is

good and sufficient cause for the Division to enter a cease and

desist order, impose civil penalties, and take affirmative

action which in the judgment of the Division will carry out the

purposes of Chapter 719, Florida Statutes."

Respondent challenged the allegation in the Notice to Show

Cause by filing a Response to Notice to Show Cause and Request

for Formal Hearing. The case was forwarded to the Division of

Administrative Hearings on March 10, 2009, and was scheduled

for an April 29, 2009, hearing. 2

On March 23 and April 17, 2009, Respondent filed motions

requesting leave to amend its previously-filed responses to the

Notice to Show Cause. Both motions were granted. Pursuant to

an Order issued April 27, 2009, Respondent was granted leave to

file the Second Amended Response to Notice to Show Cause and

Request for Formal Hearing ("Second Amended Response"), which

effectively superseded the previously-filed responses.

Prior to hearing, the parties filed a Joint Pre-Hearing

Stipulation ("Pre-Hearing Stipulation") in which they stipulated

to facts which required no proof at hearing. Also, in the

Pre-hearing Stipulation, Respondent withdrew the defenses raised

in paragraphs 7 and 8(e) of the Second Amended Response. The

specific section referenced was the "constitutional defense

based on the guarantee [in the Florida Constitution] that all

political power is inherent in the people."

At the final hearing, Petitioner called three witnesses:

Cheryl Carson, Investigation Specialist II, with the Department;

and Victor Buhler and George William Sherman, owners of units in

Waterfront Park. Petitioner's Exhibits 1 through 10 were

admitted into evidence. Respondent presented the testimony of

two witnesses: Robert Kendrick, president and treasurer of the

Waterfront Park Association; and Roger Ashley, owner of a unit

in Waterfront Park. Respondent's Exhibits 1 through 9 were

admitted into evidence.

No transcript of the hearing was filed. By stipulation of

the parties, Proposed Recommended Orders were filed on May 11,

2009. Respondent also filed a Supplemental Memorandum of Law. 3

In response to Respondent's request, on May 28, 2009, Petitioner

filed a letter clarifying paragraphs 14, 18, 19 and 21 of

Petitioner's Proposed Recommended Order. 4 The post-hearing

documents filed by the parties have been considered in

preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Waterfront Park Corporation, is a

non-profit Delaware corporation, organized in 1956, registered

as a foreign for-profit corporation, and doing business in the

State of Florida.

2. The Association is subject to the regulatory

jurisdiction of Petitioner, Department of Business of Business

and Professional Regulation, Division of Florida Land Sales,

Condominiums, and Mobile Homes.

3. The Association is responsible for operating the common

elements of the Waterfront Park Corporation Co-operative

Apartment ("Cooperative").

4. The Cooperative is located in St. Petersburg, Florida,

about one block from Tampa Bay and consists of three buildings

with a total of 35 residential units.

5. The Cooperative's governing documents include the

Waterfront Park Corporation Co-operative Apartment Perpetual Use

and Equity Contract ("Equity Contract"), the Association's

By-Laws, and its Articles of Incorporation.

6. Section 6(3) of the Equity Contract provides that

"[t]he Cooperative agrees that, to the limit of its resources,

it will . . . adequately insure all of the property of the

Cooperative against fire, storm, tornado and public liability."

7. Article 8 of the Association's Articles of

Incorporation provides that "[t]he management of the affairs of

the corporation shall be conducted by its Board of Directors

["Board"] in accordance with the requirements of its By-Laws."

8. Paragraph 51 of the Association's By-Laws provides, in

part, the following: "The Board of Directors shall, from time

to time, fix and determine the sum or sums necessary and

adequate for the continued ownership and operation of the

project. They shall determine the amounts required for capital

items . . ., and for operating items such as taxes, insurance,

repairs, betterments and operating expenses."

9. Prior to April 15, 2006, the Association maintained

casualty insurance through Allstate Insurance Company

("Allstate") over its property, including windstorm, general

liability, and fire coverage for the three buildings.

10. Sometime prior to January 17, 2006, the Association

was notified that Allstate was canceling the Association's

casualty policy, effective April 15, 2006.

11. At the Association's meeting on January 17, 2006,

members were advised that Allstate, who handled the "building

insurance," had canceled its policy. Following this

announcement, there was a discussion regarding: (1) the impact

on members if the Association did not or could not secure

insurance; (2) the possibility of the Association's being

self-insured; and (3) cost and possibility of the Association's

obtaining insurance.

12. During the January 17, 2006, meeting, the president

and treasurer of the Board, Robert Kendrick, advised Association

members that, at the present time, the only company that might

insure the Association was Citizens Insurance Company

("Citizens"), the State's insurer of last resort. Mr. Kendrick

further advised the members that if insurance were obtained

through Citizens, the premiums would be at least two to three

times what the Association paid in 2005.

13. Sometime prior to the January 17, 2006, meeting,

Mr. Kendrick received information about the cost of obtaining

insurance through Citizens. This information was provided to

him by telephone from the agency that had provided the

Association's Allstate coverage. Although Mr. Kendrick received

the Citizen's quote by telephone and wrote it down, he did not

include it in the Association's proposed 2006 budget.

Mr. Kendrick's reason for not including the premium cost for

coverage by Citizens was that he had not received a written

quote.

14. The budget presented at the January 17, 2006, annual

meeting had been prepared before the Association was notified

that its Allstate policy was being canceled. Therefore, the

amount of insurance premium budgeted for 2006 was similar to the

Allstate insurance premium. At the January 17, 2006, annual

meeting, the vote to approve the budget, with an insurance

premium budgeted similar to the Allstate premium, was unanimous.

15. On or about March 30, 2006, an insurance agent or

broker with Insurance Technologies Corporation provided the

Association with a written quote for coverage through Citizens.

The quote offered the following coverage through Citizens:

property damage, including windstorm, at the limit of $3.5

million for the three buildings with a $2,500 general deductible

and a five percent windstorm deductible for an annual premium of

$17,773.

16. The cost of the annual premium cost for property

damage insurance, including windstorm, was significantly higher

than the amount budgeted for the year. Therefore, no insurance

was purchased for the period after April 15, 2006, when

Allstate's coverage expired.

17. Mr. Kendrick did not include the Citizen's premium

quote in the proposed 2007 Association budget or any property

coverage other than $2,500 for general liability and directors'

and officers' coverage. Mr. Kendrick determined to not include

other insurance coverage because of the cost of additional

coverage. 5

18. Since Allstate canceled its policy, the Association

has not purchased any alternative coverage.

19. The coverage limit for the Association's property

under the Allstate policy that was canceled, effective April 15,

2006, was for an amount less than $3.5 million. However, the

price quotes for the alternative coverage for the Association's

property was based on $3.5 million.

20. In or about December 2007, about one year and nine

months after Allstate canceled the Association's casualty

policy, the Association's Board solicited casualty policy quotes

from brokers, Tampa Bay Insurance and its successor, MSM

Insurance. The broker provided the Association with a quote

from Century Surety and another one from Lloyd's of London.

21. Mr. Kendrick's understanding was that the broker he

contacted would go out into the market and get the best quote

available. In fact, the cover letters from the broker on both

the Century Surety quote and the Lloyd of London's quote stated,

"I assure you that I have tried every angle to get you the best

possible pricing available." In accordance with the foregoing,

Mr. Kendrick reasonably relied on the broker to provide the

Board with the lowest price for casualty insurance, including

windstorm coverage.

22. The Century Surety December 12, 2007, "property"

quote, which excluded coverage for wind/hail and theft, was

$11,964.61.

23. The Lloyd's of London January 21, 2008, 6 quote was

$37,441.39 for "Commercial [Property] Wind" coverage. The

amount quoted by Lloyd's of London was more than six times the

amount of the Allstate premium for similar coverage and

approximately double the Citizens premium quote from the prior

year.

24. When Mr. Kendrick received the quotes from Century

Surety ($11,964.61) and Lloyd's of London ($37,441.39), he

believed that the two policy amounts were to be added together

for a combined premium of almost $50,000. However, at hearing,

Mr. Kendrick admitted that his belief may have been incorrect

and that the quote from Lloyd's of London may have been a

revised premium for all coverage.

25. At the Association's 2008 annual meeting, four

proposed budgets were presented to the members to vote on.

26. Proposed Budget 1 for 2008 reflected $2,000 as being

the total premium for all forms of insurance for 2008. The

source of this estimate is unknown. The total cost of Proposed

Budget 1 for 2008 was $61,400.00.

27. Proposed Budget 2 reflected a cost of $22,000 for

"insurance" and, also listed as a separate line item, $42,000

for "security." Although Proposed Budget 2 did not specify, the

$42,000 included not only the cost of a security guard, but also

other significant line item increases, including the estimated

$22,000 for insurance coverage. The total cost of Proposed

Budget 2 for 2008 was $119,400.

28. According to Mr. Kendrick, the proposed 2008 budgets

were prepared in late 2007 and before he received the above-

referenced quotes from Tampa Bay Insurance and MSM. Therefore,

the $22,000 for insurance coverage, including windstorm

coverage, was merely an estimated cost. The source from which

that estimate was obtained is unclear.

29. Proposed Budget 1 was approved by the members on

an 11 to three vote, with five abstentions.

30. In October 2009, Mr. Kendrick, acting on behalf of the

Board, obtained another quote for casualty insurance, including

windstorm coverage, from MSM. The quote provided by MSM and

dated October 28, 2008, was for $59,972.39 and was from the

carrier, Lloyd's of London. The quote was itemized as follows:

(1) annual premium of $56,000; (2) taxes and fees of $3,722.39;

and (3) the agency fee of $250.

31. At the Association's 2009 annual general meeting, two

proposed budgets were presented on which the shareholders could

vote. Of the numerous line items, there are only three

differences between Proposed Budget 1 and Proposed Budget 2.

Proposed Budget 1 reflected $2,000 for insurance, $4,000 for

security, and $3,600 for administrative purposes, while Proposed

Budget 2 included a significant increase in each of those line

items. Proposed Budget 2 reflected $60,000 for insurance,

$40,000 for security, and $6,000 for administrative purposes.

Based on the foregoing, Proposed Budget 2, which totaled

$157,500, exceeded Proposed Budget 1, which totaled $61,100, by

$96,400.

32. The two proposed budgets for 2009 appeared on the same

sheet and included a "note" regarding the impact of each of the

two budgets on the members' ownership fees. According to the

"note," Proposed Budget 1 would result in no change in the

members' maintenance fees, and Proposed Budget 2 would result in

a 260 percent increase in members' maintenance fees.

33. On January 20, 2009, during the Association's annual

meeting, the members approved Proposed Budget 1, described in

paragraph 31 and which totaled $61,100. That budget, which

included no casualty insurance, was approved by a 12-to-one vote

of the members. The votes of two shareholders were not counted,

because no proper proxies from them had been received as of the

meeting date.

34. Except as noted above, no other efforts to obtain

windstorm coverage were undertaken by Mr. Kendrick on behalf of

the Board.

35. At all times relevant to this proceeding, the

Association did not have sufficient funds to purchase casualty

insurance. Moreover, the majority of the owners of the units

were unwilling and/or unable to pay additional assessment.

36. On April 14, 2009, about two months after the action

in this case was filed, the Board purchased a broad form

casualty policy which covered damage to the Association's

property, excluding windstorm. The policy was purchased from

Chubb Insurance Company for an annual premium of $6,222.88.

37. Prior to filing its Notice to Show Cause, the Division

provided the Association with an opportunity to provide proof of

its intent to comply with Subsection 719.104(3), Florida

Statutes. The Division also gave the Association several

reasonable extensions of time in which to provide proof of its

intent to comply with the above-referenced provision. 7

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2009).

39. Subsection 719.501(1), Florida Statutes, authorizes

the Division to enforce and ensure compliance with the

Cooperative Act, Chapter 719, Florida Statutes, and rules

related to that chapter.

40. Subsection 719.501(1), Florida Statutes, which

enumerates the Division's powers and duties, provides, in

pertinent part, the following:

(1) . . . In performing its duties, the

[D]ivision shall have the following powers

and duties:

* * *

4. The division may impose a civil

penalty against a developer or association,

or its assignees or agents, for any

violation of this chapter or related

rule. . . A penalty may be imposed on the

basis of each day of continuing violation,

but in no event shall the penalty for any

offense exceed $5,000. By January 1, 1998,

the division shall adopt, by rule, penalty

guidelines applicable to possible violations

or to categories of violations of this

chapter or rules adopted by the division.

The guidelines must specify a meaningful

range of civil penalties for each such

violation of the statute and rules and must

be based upon the harm caused by the

violation, the repetition of the violation,

and upon such other factors deemed relevant

by the division. For example, the division

may consider whether the violations were

committed by a developer or owner-controlled

association, the size of the association,

and other factors. . . It is the

legislative intent that minor violations be

distinguished from those which endanger the

health, safety, or welfare of the

cooperative residents or other persons and

that such guidelines provide reasonable and

meaningful notice to the public of likely

penalties that may be imposed for proscribed

conduct . . . .

41. In this case, the Division alleged that the

Association violated Subsection 719.104(3), Florida Statutes, by

failing to use its "best efforts" to "obtain and maintain

adequate insurance to protect Association property." The

Division appears to contend that adequate insurance for the

Association's property is casualty insurance, including

windstorm coverage.

(3) INSURANCE.--The association shall use

its best efforts to obtain and maintain

adequate insurance to protect the

association property. The association may

also obtain and maintain liability insurance

for directors and officers, insurance for

the benefit of association employees, and

flood insurance. A copy of each policy of

insurance in effect shall be made available

for inspection by unit owners at reasonable

times.

(a) Windstorm insurance coverage for a

group of no fewer than three communities

created and operating under chapter 718,

this chapter, chapter 720, or chapter 721

may be obtained and maintained for the

communities if the insurance coverage is

sufficient to cover an amount equal to the

probable maximum loss for the communities

for a 250-year windstorm event. Such

probable maximum loss must be determined

through the use of a competent model that

has been accepted by the Florida Commission

on Hurricane Loss Projection Methodology.

Such insurance coverage is deemed adequate

windstorm insurance for the purposes of this

section.

42. The clear and unambiguous language in Subsection

719.103(3), Florida Statutes, requires the Association to "use

its best efforts" to "obtain and maintain" adequate insurance on

its property.

43. The term "best efforts" is not defined in Chapter 719,

Florida Statutes, or any related chapter, and no court decisions

have interpreted Chapter 719, Florida Statutes. However, case

law provides some guidance as to what "best efforts" require.

44. In Faith v. Faith , 709 So. 2d 600 (Fla. 3rd DCA 1998),

a property settlement agreement clearly contemplated that the

former husband would use his best efforts to close a real

property transaction. The agreement provided that, "if despite

his best efforts and through no fault of his own," the

transaction did not close, the settlement agreement would have

to be renegotiated. When the former husband went back to the

table, the seller raised the price of the property. Based on

the increased price, the former husband determined that the deal

was not financially viable and, thus, abandoned the deal. The

court held that where the independent economic analysis was not

contradicted, the husband was not obliged to proceed with the

transaction. Id.

45. As noted above, Subsection 719.103(3), Florida

Statutes, requires that the Association use its "best efforts"

to obtain and maintain adequate insurance to protect its

property. That provision is not an absolute and unequivocal

mandate that the Association obtain and maintain insurance. For

example, Subsection 719.106(1)(k), Florida Statutes, which

mandates certain coverage provides:

Bylaws; cooperative ownership.--

(1) MANDATORY PROVISIONS.—-The bylaws or

other cooperative documents shall provide

for the following, and if they do not, they

shall be deemed to include the following:

* * *

(k) Insurance or fidelity bonds. - The

association shall obtain and maintain

adequate insurance or fidelity bonding of

all persons who control or disburse funds of

the association. The insurance policy or

fidelity bond must cover the maximum funds

that will be in the custody of the

association or its management agent at any

one time. As used in this paragraph, the

term "persons who control or disburse funds

of the association" includes, but is not

limited to those individuals authorized to

sign checks, and the president, secretary,

and treasurer of the association. The

association shall bear the cost of bonding

and insurance. [Emphasis added]

46. The undisputed evidence established that, at all times

relevant hereto: (1) the Association did not have funds to

purchase the insurance premiums for casualty insurance; and

(2) the unit owners voted against budgets that would provide for

such coverage, thereby, indicating that they were unwilling to

have their assessments increased.

47. Applying the principle enunciated in Faith , "best

efforts" takes into consideration the economic viability of

undertaking a course of action. In this case, "best efforts"

does not require that the Association purchase an insurance

policy at any cost. This is particularly true where, as in this

case, the undisputed evidence established that the Association

did not have sufficient financial resources to purchase the

casualty insurance with windstorm coverage.

48. The Division contends that the foregoing is the

coverage required under Subsection 719.104(3)(a), Florida

Statutes.

49. Subsection 719.103(3)(a), Florida Statutes, provides

that a group of "no fewer than three communities" created and

operated under Chapters 718, 719, 720 or 721, Florida Statutes,

may obtain and maintain "windstorm insurance coverage" for those

communities and sets the amount of that coverage. 8 This

provision does not mandate that windstorm insurance be obtained

and maintained; it merely authorizes the designated number of

communities to join forces to purchase and maintain windstorm

insurance coverage for their communities. Chapter 719, Florida

Statutes, includes numerous provisions which require

associations to perform certain duties or responsibilities.

Several such mandates included in Section 719.104, Florida

Statutes, are as follows: (1) Subsection 719.104(2)(a),

provides that associations "shall maintain" copies of the

certain documents as part of its official records;

(2) Subsection 719.104(2)(b), Florida Statutes, provides that

official records of associations "shall be maintained within the

state" and "shall be made available to unit owners within

5 working day after receipt of written request"; (3) Subsection

719.104(2)(c), Florida Statutes, provides that the official

records of the association "shall be open to inspection by any

association member"; and (4) Subsection 719.104(4), Florida

Statutes, provides that association's board of directors "shall

mail or furnish by personal delivery to each unit owner a

complete financial report."

50. In this enforcement proceeding, the Division seeks to

impose a civil penalty or fine of not more than $5,000 on

Respondent. Such a fine is penal in nature and, thus, to

prevail in this enforcement proceeding, the Division must prove

the alleged violation by clear and convincing evidence.

51. Clear and convincing evidence has been described by

the Supreme Court of Florida as follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Inquiry Concerning a Judge No. 93-62 , 645 So. 2d 398, 404

(Fla. 1994), quoting Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

52. To prevail, the Division must show by clear and

convincing evidence that the Association failed to "use its best

efforts" to obtain and maintain adequate insurance to protect

the Association's property.

53. The Division did not meet its burden of proof as the

evidence did not clearly or convincingly establish the

allegation made in the Notice to Show Cause.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Department of Business and

Professional Regulation, Division of Florida Land Sales,

Condominiums and Mobile Homes, enter a final order: (1) finding

that Respondent, Waterfront Park Corporation, did not violate

Subsection 793.104(3), Florida Statutes; and (2) rescinding the

Notice to Show Cause.

DONE AND ENTERED this 30th day of October, 2009, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of October, 2009.

ENDNOTES

1/ All statutory references are to Florida Statutes (2008),

unless otherwise noted.

2/ The case was initially assigned to Administrative Law Judge

Daniel M. Kilbride, but was transferred to the undersigned on

April 16, 2009.

3/ Respondent filed a Memorandum of Law on April 29, 2009.

4/ Petitioner indicated that this clarification was written in

response to a request by Respondent. In its letter, Petitioner

requested that the Administrative Law Judge "accept the

clarification that Mr. Kendrick's testimony was that he was

aware of an estimate from Citizens in February 2006, but did not

receive a firm quote until March 31, 2006." The letter went on

to explain that, "[t]his testimony was proferred to explain why

Citizens' price quote was not included in the 2006 proposed

budget, nor reported to the unit owners at the annual meeting

held in January 2006, but for Mr. Kendrick's the limited

statement that, [t]he only company that possibly might insure us

is Citizens Insurance Co." Finally, the letter requested the

correction of a scrivener's error in paragraph 21 of

Petitioner's Proposed Recommended Order.

5/ This determination and decision were likely impacted by the

majority of the Association's members' previous opposition to

purchasing insurance coverage that would increase their

assessments.

6/ The cover letter regarding this quote is mistakenly dated

January 21, 2007; the correct date is January 21, 2008.

7/ The extensions granted by the Division extended the time to

provide proof from September 9, 2008, to September 30, 2008,

then to October 15, 2008, and, finally, to November 3, 2008.

8/ If windstorm insurance coverage is obtained under this

provision, the coverage must be "sufficient to cover an amount

equal to the probable maximum loss for the communities for a

250-year windstorm event."

COPIES FURNISHED :

Michael Cochran, Director

Division of Florida Land Sales,

Condominiums, and Mobile Homes

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Joseph H. Lang, Esquire

Baynard, McLeod and Lang, P.A.

669 First Avenue North

St. Petersburg, Florida 33701

Kerry H. Brown, Esquire

Post Office Box 15223

St. Petersburg, Florida 33733-5223

William R. Wohlsifer, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

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.