16-002843 Department Of Transportation vs. Zfi Engineering And Construction, Inc. Status: Closed Recommended Order on Wednesday, October 12, 2016.

Summary: The Department of Transportation established that Respondent violated Department rules and created an unsafe road condition on a road widening project in Polk County.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. Case No. 1 6 - 2843

ZFI ENGINEERING AND

CONSTRUCTION, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

D. R. Alexander, Administrative Law Judge of the Division

of Administrative Hearings (DOAH ) , conducted a hearing in this

case on July 18 and 19 , 2016, by video teleconferencing at sites

in Lakeland an d Tallahassee, Florida.

APPEARANCES

For Petitioner : Ri chard E. Shine, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Ta llahassee, Florida 32399 - 0458

For Respondent: April A. Atkins, Esquir e

Kirwin Norris, P.A.

Suite 301

15 West Church Street

Orlando, Florida 32801 - 3351

STATEMENT OF THE ISSUE

The issue is whether Respondent's constructi on activities

vi olate d Department standards and create d an unsafe road

condition , as alleged in the Department's Amended Violation and

Notice to Show Cause - Non - Compliance with Permit Conditions

(Notice to Show Cause) issued on March 1, 2016.

PRELIMINARY STATEMENT

The Notice to Show Cause alleg es Respondent , an engineering

firm, violated the terms of two construction permits and created

an unsafe road condition while performing work on State Road 655

in Polk County (County) . It f urther alleges Respondent's

construction activities violated in nine respects Florida

Administrative Code Rules 14 - 96.007(8) and 14 - 96.011(1)(b). The

Notice to Show Cause require s that Respondent demonstrate

satisfactory progress of the road construction within 60 days or

Department action w ill be initiated to require the Construction

Performance Bond insurance company to complete the work .

Respondent timely requested a hearing and the matter was

transmitted by the Department to DOAH to schedule a formal

hearing.

At the hearing, the Department presented the testimony of

two witnesses. Department Exhibits 1 through 6, 7 - 1, 7 - 2, 7 - 6,

7 - 8, 7 - 9, 8, 9, 11, and 12 were accepted in evidence.

Respondent presented the testimony of five witnesses .

Respondent's Exhibits A1 , A2, A4 through A 7 , B1 through B6, C1,

C3, D1 through D6, and Rebuttal Exhibits 1 through 3 were

accepted in evidence.

A four - volume T ranscript of the hearing was prepared.

Proposed f indings of f act and c onclusions of law (PROs) were

filed by the parties, and they have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

A. Background

1. The Department is the state agency responsible for

regulating access to the state highway s ystem . See § 335.182,

Fla. Stat. T o ensure that the motoring public is safe , t he

Department has adopted and incorporated by reference design

standards, standard specifications, and a Plans Preparation

Manual (PPM) that must be adhered to by contractors when working

on state roads . See Fla. Admin. Code R. 14 - 96. 008 .

2. Respondent is an Orlando engineering firm whose

principal is Zhi "George" Guo, a registered professional

engineer. The Guo family is the fee simple owner of a 37 - acre

tract of land located at 5615 Recker Highway (State Road 655) in

an unincorporated part of the Coun ty .

3. Around eight years ago, Mr. Guo began t he process of

developing the family property as a business park to be known as

the Recker Highway Business Park Development . To provide access

to the property from State Road 655, Mr. Guo was required to

cons truct turn lanes, widen from two lanes to four lanes around

1,700 feet of road way , construct pave d and unpaved shoulders,

and install guardrails and sod. The Department considers road

widening to be a major project. Because all work was within the

Depart ment's right - of - way, a driveway connection permit and

drainage connection permit were required. The project begins at

Station 594.00 and ends at Station 611.00 on State Road 655.

4 . O n October 16, 2008, Mr. Guo submitted to the

Department an Access A ppli cation for a driveway connection

permit.

5. Among other things, the Access A pplication identifies

the engineer of record (EOR) , general contractor (GC) , and

certified engineer inspector (CEI) on the project. The EOR

signs the plans and verifies that al l work will be in accordance

with Department standards. The GC is essentially the manager of

the project and is responsible for its overall coordination.

The CEI is responsible for making all inspection work on the

project to ensure that the GC is perfor ming work according to

the permitted plans. This requires th at the CEI be on the job

site to observe and verify work done by the GC. The CEI must

also submit daily reports to the Department documenting

activities that take place each day while work is be ing

performed . When all work is completed, t he CEI requests that

the Department make a final inspection and issue a final

acceptance of the work . Although the CEI is normally one

person, t he CEI can be a combination of multiple people if they

have a Cons truction Training and Qualification Program (CTQP)

certification required to complete the components of the work ,

e.g. , earthwork, asphalt, and maintenance of traffic (MOT).

6 . Mr. Guo's Access Application indicated he would serve

as EOR and GC . It did n ot identify who would be the CEI, but

Mr. Guo does not deny that he served as CEI. Notably, Mr. Guo

submitted daily reports and assumed the duties and

responsibilities normally associated with that position.

Mr. Guo has never managed a highway constr uction project such as

this , although he has done design work on several highway

projects, mainly related to drainage - improvement work . As the

GC, Mr. Guo signed and sealed the permitted drawings.

7. As a general rule, different individuals serve as th e

EO R , GC, and CEI . If the CEI is also the GC, there are no

checks and balances to ensure the project is built according to

the permitted plans. According to the Department's expert, it

is unethical for one person to serve as GC, EO R , and CEI on the

same project. However, t he expert had no explanation as to why

the Department issued a permit to Mr. Guo under these

circumstances , and the Department cited no rule or statute that

prohibits this arrangement . The charging document does not

allege any wrongdo ing in this respect.

8. Mr. Guo was concerned about an apparent conflict of

interest created by him being the owner of the property, EOR,

GC, and CEI. Accordingly, he hired two outside laboratories to

perform materials testing, and he used two of his emp loyees , one

certified in earthwork and the other in MOT , but neither in

asphalt , to act in his stead. There is no evidence that Mr. Guo

informed the Department that he had delegated any CEI inspection

responsibilities to other individuals. A lthough he as serts a

request was made for the Department to inspect the paving

progress as it was installed , there is no record of such a

request. Indeed, Mr. Guo had no reason to assume, as he did,

that the Department permit inspector would "fully perform the

inspect ion work ." If this were so, there would be no need for

the CEI to perform any inspections on asphalt work.

9. After being informed by the Department that a drainage

construction permit was required, o n January 28, 2009, Mr. Guo

filed a second application for that type of permit.

10 . After additional information was provided by the

applicant , o n December 14, 2012, or around four years later,

the Department issued to Mr. Guo Driveway/Connection Permit

No. 2008 - A - 190 - 0071 and Drainage Connection Permi t No. 2009D -

190 - 0003 . The permit conditions required , among other things,

that all work be performed in accordance with current Department

standards, specifications, and permit provisions; the driveway

connection not be used until final acceptance was giv en by the

Department ; the applicant be totally responsible for the cost of

all work performed inside the Department's right - of - way; and t he

applicant accept all conditions of the permit, once work began.

At hearing, Mr. Guo agreed t hat he must comply with all permit

conditi o ns.

1 1 . A pre - construction meeting was conducted on January 2,

2014. Mr. Guo attended the meeting and acted as the EOR, GC,

and C EI for the applicant. Among other things, t he purpose of a

pre - construction meeting is to discuss the conditions in the

permit and to answer any questions that an applicant may have

before work beg ins . See also Fla. Admin. Code R. 14 - 96.003(2).

At the meeting, Mr. Guo was given a copy of the construction

guidelines , which spell out exactly what a contrac tor must do

before, during, and after construction. He was also given a

copy of " Minimum CEI On Site Inspections and Notifications , "

which identif ies the specific duties of the CEI . These

documents are also attached to his permits.

1 2 . A t the heart of t his controversy is a dispute over the

actions taken by the Department's permit inspector while

monitoring the project . A permit inspector is assigned to

monitor the work on all state highway projects. The

Department's Bartow District Office has only one permit

inspector , Steve Logan, who is responsible for 400 lane miles of

road in the County. Mr. Logan must drive through all the jobs

that are under construction in the County and bring matters to

the attention of the CEI on each project to ensure complia nce

with the Department's permitted plans, including items such as

traffic control, lane closures, and spot slope measurements. He

must also observ e and verify the work done by the CEI , accept

and review the daily reports submitted by the CEI , forward th o s e

reports to the p ermits d irector at the District Office , and work

as the Department's communication contact with the contractor.

He also receives asphalt mix designs from the CEI and forwards

them to the Materials Depart ment for approval.

13. M r. Logan replaced another permit inspector in

February 2015, or just before the friction course of asphalt was

placed on the roadway. The friction course is the third and

final layer of road surface . When he assumed the position,

Mr. Logan understood the Depar tment had previously inspected the

first two layers of road surface , i.e., the installation of an

eight - inch lime rock base and a one and one - half inch s tructural

asphalt layer. However, he knew that no final acceptance had

been given since all work was n ot yet completed.

1 4 . Mr. Logan holds an asphalt level 1 CTQP certification ,

is currently an engineer intern, and is scheduled to take the

professional engineer examination in April 2017. The

certification means that Mr. Logan is qualified to perform

acc eptance tests for asphalt work on highways.

1 5 . Mr. Logan does not have authority to accept or reject

any of the roadway construction on a permitted project.

Authority to issue a final acceptance letter l ies w ith the

p ermits d irector in the District Off ice. A letter is normally

issued after the p ermits director , permit inspect o r , CEI,

contractor , and Department maintenance team jointly inspect the

project after all work is completed. Mr. Logan himself made no

final inspection.

B. The Work To Date

1 6 . The asphalt paving work began in March 201 4 , the final

course was laid in March 2015, and the last corrective work was

completed in July 2015 . Mrs. Asphalt, LLC, was the paving

contractor used on the job. Although a final inspection was

never performed, one of Respondent 's employees made final

payment and released Mrs. Asphalt after the July 2015 corrective

work was completed . A release and final payment are normally

given after all paving work has been approved and accepted by

the Department. Although he was not on the site in July 2015,

Mr. Guo contends Mr. Logan gave final approval for the work at

that time .

17. In April, May, October, and November 2015, the

Department sent a punch list of items to Mr. Guo to be completed

by his firm. A punch list identifies deficiencies that need to

be corrected before a final inspection is made. It does not

inform the CEI on how to resolve the deficiencies , and it places

the permittee on notice that final acceptance will not be given

until the items o n the list a re corrected . Slope deficiencies

were not noted until several months after the corrective work

was completed when a Department project administrator happened

to be driving on the road a fter a heavy rain and observed

ponding on many sections of the roadway .

1 8 . Mr. Guo met with the Department in early December 2015

in an effort to address not only the items in the punch lists

but also the sloping concerns . O n December 11, 2015, he

submitted an alternative solution of spot repair. The

Department rejected this proposal, as th e proposed repairs would

negatively impact surrounding asphalt that was constructed at a

different slope. Mr. Guo submitted a second alternative

solution, which would allow him to mill out (remove) 1.5 inches

of pavement and overlay th e friction course at 1.5 inches with a

two percent slope. The Department rejected this proposed

solution , as the best solution was to "remove what was out

there."

1 9 . The Department has never issued a final acceptance

letter for the project.

20. The Not ice to Show Cause , as amended, was issued on

March 1, 2016.

C . The Charges

2 1. The Department is authorized to initiate an

enforcement action whenever work on a state road does not

conform to the permitted plans or violates the PPM . See Fla.

Admin. C ode R. 14 - 96.007(8). The Notice to Show Cause alleges

that "the majority of paved areas, paved and unpaved shoulders,

slopes, guardrail and other items" do not comply with Department

standards or abide by the permitted plans. It further alleges

this crea tes "an unsafe road condition" and constitutes a

violation of Department rules. The Department estimates the

cost to correct these violations is between $4 3 0,000.00 and

$650,000.00. Although Respondent disputes this amount , it is

unnecessary to resolve t hat issue at this time.

22 . State Road 655 is an undivided , two - lane arterial

highway probably built around 100 years ago when different

design standards applied . According to current PPM standards, a

two - lane state highway must have a minimum eight - foot - wide

shoulder that includes a minimum five - foot - wide paved section

constructed with a two percent negative slope for the turn lane

and a six percent negative slope for the paved shoulder area .

See Dep't Ex. 8. The negative slopes allow water to drain of f

the road. A construction tolerance of no more than .2 percent

is allowed. Id. To conform to these s tandards, Respondent's

permitted plans call for the same slopes on travel lanes and

shoulders.

23. Although State Road 655 probably had a slope of one to

one and one - half percent when it was first built, and paving

slopes on the pre - existing lanes b eing widened are not exactly

two percent, any current overlaying of the road requires a two

percent slope. Mr. Guo contends he was told by two permit

ins pectors, "Chris" and Steve, that a slope of two percent or

less was acceptable. Mr. Logan denies this assertion.

2 4 . There are nine items in the charging document , which

identify necessary changes to reduce the hazard ous roadway

conditions and correct th e improper construction . Items one,

two, four, and seven relate to improper pavement slope s and

improper paved and unpaved shoulder slopes on both the east and

west sides of the roadway. Item three identifies a missing

paved shoulder on the west side of the roadway . Item s five and

six identify the absence of a stabilized shoulder (material

placed adjacent to a paved shoulder) on the east side of the

roadway and the lack of any sod on the same shoulder. Item

eight alleges the guardrail in front of the cr oss drain is

deficient. To avoid flooding, i tem nine alleges the shallow

ditch on the east side of the roadway should be relocated closer

to the Department's right - of - way line and the roadside slopes

should be modified, as shown in the permitted drawings. While

not containing a specific charge, a tenth item warns Respondent

that other issues may arise before final acceptance is given.

2 5 . T he more persuasive evidence s upports a finding that

the slopes and shoulders identified in items one, two, four, and

seven do not conform to the plans or PPM . Mr. Guo's own daily

reports for the friction course corroborate th is finding. Those

reports reflect the slopes are two percent or less for the

travel lanes and four percent for the shoulder slopes. Th is is

cont rary to the plans , which call for a two percent slope for

travel lanes and a six percent slope for shoulders , with not

more than a .2 percent deviation . The absence of appropriate

negative slopes can create dangerous ponding conditions on the

highway. Th erefore, the charges in items one, two, four, and

seven have been proven.

2 6 . The more persuasive evidence s upports a finding that

the work described in items five, six, and eight has not been

performed . If not co mpleted , t hese deficiencies can create a

safety hazard and cause soil erosion. The refore, the charges in

these three items have been proven. At hearing, Respondent

admit ted that this work has not been performed and agrees to

complete the work after the paving dispute is resolved .

2 7 . The m ore persuasive evidence supports a finding that

the charge in item nine has been proven. W hen a roadway is

widened, and a drainage ditch is located adjacent to the

original roadway, to avoid possible flooding, the ditch must be

relocated closer to the Dep artment's right - of - way and roadside

slopes must be modified . Although Mr. Guo contends otherwise,

t his work is an integral part of any road construction project.

Mr. Guo has proposed an alternate design to address this item.

D . Respondent's Contention s

2 8 . Respondent first contends that sections of other

nearby state roads are not built to current s tandards and

therefore the exact standards required by the PPM should not

apply. Respondent identified various locations on State Road

655 and other state roads within a five - mile radius of the

project that do not have an exact two percent slope . See Resp.

Ex. C1, pp. 1 - 6 ; Resp. Rebut. Ex. 2. B ecause of this slope

variation, Respondent asserts strict compliance with the PPM and

plans should not be require d. Consistent with this argument,

Respondent admits that any pre - existing travel lanes on State

Road 655 with slopes of 1.6 to 1.8 percent were overlaid with

new asphalt using the same slope measurements. But t his concern

s hould have been raised at the p re - con struction meeting before

work began, and not after the paving was completed and a Notice

to Show Cause i ssued. The contention is rejected, as the

evidence supports a finding that a permittee is required to

build to current standards, regardless of t he condition of the

existing roadway.

2 9 . In its PRO, Respondent argues the Department is

equitably estopped from enforcing the requirement that the final

paved surface have a slope of exactly two percent; the

Department waived the requirement that the final paved surface

have a slope of exactly two percent through representations made

by Department employees; its liability, if any, was extinguished

because Mr. Logan accepted the work; and the actions and

representations of Mr. Logan render the Departmen t liable for

the as - built conditions. 1/ These contentions are based mainly on

the premise that Mr. Logan made representations to the

subcontractor and/or Respondent's employees regarding the

quality of the paving work and gave final approval after the

cor rective w ork was completed in July 2015 .

30 . The friction course was installed over a three - day

period during the week of March 18, 2015. The asphalt was

installed by Mrs. Asphalt. On the first day, Mr. Guo arrived on

site two hours after work began an d on the other days he was not

on site at a ll times . However, James Bearden, who is

Respondent's foreman , and one other employee , Kerry Bearden,

were on site at all times . Neither is certified to inspect

asphalt. Except for the afternoon of the second d ay, Mr. Logan

was present at all times.

31. Using a four - foot calibrated smart level, Mr. Logan

performed spot checks on the slopes while the asphalt was being

laid , while J ames Bearden made slope checks every 25 feet or so .

Mr. Bearden c onfirmed that Mr. Logan did not "check it as often"

as he did. Although the spot checks he made appeared to be

"acceptable," Mr. Logan did not perform any spot check s after

the rolling was completed , and he did not write down any

measurements that he took. At one poin t, Mrs. Asphalt's foreman

request ed information regarding the target slope . Mr. Logan

informed him he should check with the c lient to obtain that

information. Mr. Logan did not advise anyone that the work

w ould pass final inspection .

32. During th e Ma rch paving work , Mr. Guo took no

measurements, but after the paving was completed, he was

observed making a few sloping measurements. Normally, the CEI

will make numerous checks while the paving is being laid to

ensure that the subcontractor is providing quality work and the

equipment is adequate to perform the job.

33. Respondent asserts , unpersuasively, that by allowing

Mr. Logan to inspect the asphalt paving , function as the asphalt

inspector on site, and give final approval, the Department

interfere d with the road construction. The facts belie this

contention. At no time did Mr. Logan interfere with, or

prevent, the contractor from taking slope or depth measurements.

Although Mr. Logan would sometimes tell the subcontractor that

work was not accep table , h e did not order the subcontractor to

fix the unacceptable work. This is the responsibility of the

CEI.

3 4 . Mr. Logan told Mrs. Asphalt's foreman that the

July 2015 corrective work looked "good," but he was not asked by

anyone if the subcontra ctor could be paid and released , or if

his characterization of the work as "good" constituted final

acceptance of the work. Contrary to Respondent's assertion, no

representation was made by Mr. Logan that he was giving final

approval. In fact, t here has never been a request by the CEI

for the Department to make a final inspection.

3 5 . It is evident from Mr. Guo's testimony that he either

misunderstood the type of oversight provided by a permit

inspector, or he never sought clarification on that issue bef ore

the work began. It is the CEI's responsibility to be present on

the job site to observe and verify the GC's work. This means

that Mr. Guo , or his certified designees , if any, and not the

Department, are responsible for all inspections and to provide

daily reports documenting the work activities that take place

each day.

3 6 . Mr. Guo believed the subcontractor "only listen[s] to

Steve," and the subcontractor "report[ed] directly to Mr. Logan"

for "quality [control] decisions" rather than the CEI . As to

the July 2015 corrective work , Mr. Guo instructed " the

subcontractors [to] completely follow the instruction[s] from

Steve" in making the necessary corrections to the slopes. He

also believed, incorrectly, that all asphalt inspection work had

been del egated to Mr. Logan and assumed that Mr. Logan was

essentially supervising the project. In other words, he turned

over all responsibility for inspecting the asphalt to the permit

inspector. But as the record shows, Mr. Logan only made

sporadic measuremen ts, he had no authority to approve the work,

and he did not direct the subcontractor's performance, reject

its work, or put a stop work order on the project.

3 7 . James Bearden attended a meeting with Department

personnel in November 2015 . He recalled tel ling John Hayes, a

Department construction engineer, that he paid and released the

subcontractor after Mr. Logan "okayed the work." Mr. Hayes

responded that "Steve didn't have authority to authorize that

asphalt." Mr. Hayes did not testify, and Mr. Beard en's

representation to Mr. Hayes that the work had been approved is

incorrect.

CONCLUSIONS OF LAW

3 8 . The Department has the burden of proving by a

preponderance of the evidence the violations in the Notice to

Show Cause should be sustained . See Fla. Dep 't of Transp. v.

J.W.C. Co., Inc. , 396 So. 2d 778 , 788 (Fla. 1st DCA 1981) (as the

party asserting the affirmative of the issue, DOT has burden of

proving its entitlement to the requested relief ).

3 9 . The Department has developed and adopted uniform

mini mum standards and criteria for the design and construction

of public roads , including standards, specifications, and a PPM .

See § 3 34.044(10)(a ) , Fla. Stat. ; Fla. Admin. Code R. 14 - 96.008.

Respondent has agreed to abide by these standards and criteria.

4 0 . The Department alleges in its charging document that

Respondent has violated in nine respects rules 14 - 96.007 (8) and

14 - 96.011 (1)(a),(b) and (c) .

41 . Rule 14 - 96.007(8) provides in pertinent part as

follows:

(8) Failure by the applicant to abide by

th e conditions that are applicable after

permit issuance shall be just cause for the

Department to or der alteration of the

connection, or to revoke the permit and

close the connection at the expense of the

applicant, subject to the provisions of this

rule ch apter, or for the Department to have

the necessary modifications made and seek

payment from the applicant. The permit

requirements shall be binding on the

applicant, the applicant's successor's heir,

and assigns . . . .

4 2 . Rule 14 - 96.011 provides in re levant part as follows:

(1) Validity of existing permits. All

connection permits issued by the Department

after July 1, 1988, remain valid until

modified pursuant to the criteria set forth

in this rule chapter. The Department will

initiate action to mod ify any permit or

existing permitted connection if any of the

following occurs:

(a) A significant change.

(b) The connection was not constructed at

the location or in accordance with the

design specified in the permit.

(c) Permit conditions are not m et by the

permittee.

4 3 . By a preponderance of the evidence, the Department has

proven the charges in the Notice to Show Cause.

4 4 . Respondent contends, however, that the Department is

equitably estopped from requiring a correction to the paving

slope because Mr. Logan represented that the paving looked

"good" when it was completed in July 2015.

4 5 . In order for the doctrine to apply, th ree elements

must be present: (a) a representation as to a material fact

that is contrary to a later asserted pos ition; (b) reliance on

that representation; (c) a change in position detrimental to the

party claiming estoppel, caused by the representation and

reliance thereon. See, e.g. , Hoffman v. Dep't of Mgmt. Servs. ,

964 So. 2d 163 , 166 ( Fla. 1st DCA 2007 ). Thes e elements must be

proven by clear and convincing evidence. Castro v. E. Pass

Enterprises, Inc. , 881 So. 2d 699, 700 (Fla. 1st DCA 2004).

Equitable estoppel will apply against a governmental entity only

in rare instances and under exceptional circumstanc es. Ass 'd

Indus. Insur. Co. v. Dep't of Labor & Emp . Sec. , 923 So. 2d

1252, 1255 (Fla. 1st DCA 1994).

4 6 . The evidence shows that after the last corrective work

was completed in July 2015 , Mr. Logan informed Respondent that

the paving looked "good , " ba sed upon some spot checks made

before the new asphalt was rolled. There is no evidence , much

less clear and convincing evidence, that Mr. Logan gave final

acceptance for the project, or represented that the work would

pass final inspection at a later time . Because no

representation was made, t he do ctrine does not apply.

4 7 . Respondent also argues that the Department waived the

right to require the final paved surface to have a slope of

exactly two percent slope . Waiver is commonly defined as the

intenti onal or voluntary relinquishment of a known right , or

conduct giving rise to an inference of the relinquishment of a

known right . Sentry Ins. v. Brown , 424 So. 2d 780, 784 (Fla.

1st DCA 1982). The question of waiver is an issue of fact.

Davis v. Davis , 123 So. 2d 377, 381 (Fla. 1st DCA 19 60 ).

4 8 . Respondent argues that waiver applies because the

Department failed to maintain a two percent slope on pre -

existing lanes of traffic on State Road 655 , Mr. Logan gave

final approval for all paving work , two p ermit inspectors

allegedly told Mr. Guo that slopes of two percent or less would

be acceptable , and the Department failed to enforce th e two

percent requirement on several nearby roadway projects .

49. The facts previously found support a conclusion that

the Department did not intentionally or voluntarily waive its

right to require th at all work be performed in accordance with

the plans and PPM . The argument is rejected.

50 . All other arguments not specifically addressed have

been considered and rejecte d.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Transportation e nter a

final order sustaining the charges in the Notice to Show Cause

and requiring Respondent , within 60 days, to de monstrate

satisfactory progress in completing the road construction .

Otherwise, the Department may initiat e action to effect the

satisfactory completion of the work at Respondent's expense .

DONE AND ENTERED this 12th day of October, 2016 , in

Talla hassee , Leon County, Florida.

S

D . R. ALEXANDER

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 t he Clerk of the

Division of Administrative Hearings

this 12 th day of October , 2016.

ENDNOTE

1/ These contentions were not stated in legalistic form until the

PRO was filed. Apparently w ithout the benefit of counsel,

Mr. Guo prepared and filed bot h his request for a hearing and a

unilateral pre - hearing statement. Three working days before the

hearing, he requested a continuance in order to initiate

discovery. Because no emergency was shown, and given the

Department 's concern that the corrective w ork should be completed

as quickly as possible, the request was denied. The next day, a

former employee, Yanling "Caroline" Wang, was authorized to

appear as a qualified representative on behalf of Respondent.

Later that day, Respondent's counsel filed a notice of

appearance .

COPIES FURNISHED:

James C. Boxold, Secretary

Department of Transportation

Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(eServed)

Andrea Shulthiess , Clerk of Agency Proceedings

D epartment of Transportatio n

Mail St ation 58

60 5 Suwannee Street

Tallahassee, Florida 32399 - 0 4 5 0

(eServed)

T om Thomas , General Counsel

Department of Transportation

Mail St ation 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(eServed)

Richard E. Shine, Esquire

Departme nt of Transportation

Mail St ation 58

605 Suwannee Street

Ta llahassee, Florida 32399 - 0458

(eServed)

April A. Atkins, Esquire

Kirwin Norris, P.A.

Suite 301

15 West Church Street

Orlando, Florida 32801 - 3351

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.