STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY ABUSE )

SHELTER, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-2240

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Brooksville, Florida, on November 29, 1983. The issue for consideration at the hearing was whether Petitioner's bid to operate an abuse shelter in Department of Health and Rehabilitative Services Subdistrict III B should be approved.

APPEARANCES

For Petitioner: Linda Treiman, Esquire

11 North Main Street Brooksville, Florida 33512

For Respondent: James A. Sawyer, Jr., Esquire

Department of Health and Rehabilitative Services

1000 Northeast 16th Avenue, Building H Gainesville, Florida 32601

BACKGROUND INFORMATION

Pursuant to a Request for Proposal issued by Department of Health and Rehabilitative Services (HRS) District III authorities in May, 1983, petitioner, Hernando County Abuse Shelter, Inc. (HCAS), submitted an application to operate a spouse abuse shelter, under HRS contract, on June 3, 1983. This application was subsequently disapproved because of deficiencies in the package on June 16, 1983. Thereafter, on June 22, 1983, Petitioner submitted a written notice of protest followed up by a Formal Letter of Protest dated June 30, 1983. This latter protest constitutes a request for hearing.

At the hearing, Petitioner presented the testimony of Linda Tucker and Alice Mulrooney and introduced Petitioner's Exhibits 1 through 3. Respondent presented the testimony of Carol Laxton and introduced Respondent's Exhibits A through C.

FINDINGS OF FACT

1 In either April or May, 1983, HRS District III, Respondents in this case, advertised a request for proposals to operate a spouse abuse shelter in a subdistrict of HRS District III in accordance with the following schedule: The request for proposal (RFP) package was to be picked up by 5 p.m., May 20, 1983; the applicant was to notify HRS of its intent to submit a proposal by 5 p.m., May 20, 1983; and the proposal was to be filed with HRS no later than 5 p.m., June 3, 1983. The contract in question was for the period July 1, 1983 through June 30, 1984.

1. Linda Tucker, President of the Petitioner's Board of Directors, found out about the solicitation from her Vice President, Alice Mulrooney, who had received word of it through an administrative letter sent to her in her capacity of an officer on the County Rape Council.

   
   

2. Ms. Tucker and Ms. Mulrooney both telephonically spoke with Carol Laxton, the HRS official in Gainesville who was stewarding this solicitation. It was not clear which of the two spoke with her first. Ms. Tucker spoke with Ms. Laxton on May 20, 1983, and requested to be furnished with a copy of the RFP. Both Tucker and Mulrooney indicated they told Ms. Laxton that Petitioner was not yet incorporated. Both agree Ms. Laxton advised them the requirement for incorporation could be waived and that the proposal should be submitted anyway, including a letter from Petitioner's lawyer to the effect that the

   incorporation papers had been forwarded to the office of the Secretary of State.

   
   

3. On May 25, 1983, Petitioner contacted representatives of the Hernando County Commission relative to county funding of at least a portion of that local source of matching funds required to make up at least 25 percent or the overall proposed operating budget as required by Florida Statutes and as set out in the proposal. At that time, Petitioner was advised that while the Commission supported the Petitioner's proposal in concept and fully hoped to lend its financial support, it could not officially do so until after the county's budget hearings were completed and it was determined that the requested funds were in fact available. A letter to this effect was submitted to Ms. Laxton by the Chairman of the Commission on June 7, 1983. In the interim, before the proposal was submitted, both Ms. Tucker and Ms. Mulrooney discussed this possible defect, as well, with Ms. Laxton. Again, both ladies contend Ms. Laxton advised them this criterion could be waived, as well.

   
   

4. Petitioner submitted its proposal on time. However, at the time of submittal, the Petitioner was not in fact incorporated. The proposed corporate charter was forwarded to the Secretary of State on June 2, 1983 (a letter to this effect was sent the same day to Ms. Laxton by Petitioner's attorney), and approved on June 13, 1983. Also, at the time of submission, the proposal listed as budgeted resources donated land and two homes having a rental value of $4,800 per year as an in-kind resource, $182 as cash client contributions and $3,750 as a cash contribution by the Hernando County Commission. It is this last funding source that was committed in theory only and was not firm. Taken together, the three sources totaled $8,732, which would be slightly over 28 percent of the total yearly budget of $31,052. However, since the commitment from the County Commission was not firm and was contingent on funds being available, it could not be considered; and the remaining sum of $4,982 is only 16 percent of the budget.

   
   

5. Ms. Laxton admits talking with both Tucker and Mulrooney on several occasions about the proposal and the difficulties they were having. They

   indicated to her they were having problems getting incorporated, but that their attorney was working on it. She admits telling them to send whatever they had, which included a status letter from their attorney. She also admits stating to them that some requirements of the RFP could be waived, but does not think incorporation was one and is sure she did not tell them the matching funds requirement could be waived.

   
   

6. After hearing the evidence presented and considering it along with its relative probabilities and improbabilities, it is found that the Petitioner's representatives may have reasonably inferred the incorporation requirement could be waived. However, it is unlikely that Ms. Laxton would have even inferred anything as significant and sensitive as a matching fund requirement could be waived. If Ms. Tucker and Ms. Mulrooney inferred that from Ms. Laxton's comments, it was unfortunate, but in error.

   
   

7. In fact, the County Commission did ultimately approve a commitment to Petitioner in the amount of $3,750. They have also received additional cash contributions of $2,300 and additional in-kind contributions of $5,000. None of these latter resources were in hand or firmly committed by the June 3, 1983 proposal submission deadline, however. At the present time, Petitioner is operating a shelter without Respondent's funds. They have requested assistance from the successful bidder, but have been turned down. There is, however, substantial but non-financial community support for Petitioner's operation.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

   
   

9. Section 409.605(1)(c), Florida Statutes (1981), provides:

   
   

   1. In order to be certified and funded under this act, each center shall:

      (c) Receive 25 percent of its funding from one or more local, municipal, or county sources, public or private. Contributions in kind, whether materials, commodities, transportation, office space, other types or facilities, or personal services, may be evaluated and counted as part of the required local funding.

      
      

10. The statute does not require an applicant to be incorporated, but under the terms of the statute, in order to receive certification and funding from HRS, the facility must receive 25 percent of its funding from local sources. This requirement, being statutory in origin as opposed to a rule of the Respondent, cannot be waived.

    
    

11. As to the cutoff date for proposals, as set out in the RFP, and of which Petitioner was aware, it did not have firm commitments or available funding to constitute 25 percent of its budget. As such, it was not eligible for certification and funding under the statute. Consequently, Petitioner's protest is without merit.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Petitioner's protest be rejected.

RECOMMENDED this 4th day of January, 1984, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1984.

COPIES FURNISHED:

LINDA TREIMAN, ESQUIRE

11 NORTH MAIN STREET BROOKSVILLE, FLORIDA 33512

JAMES A. SAWYER, JR., ESQUIRE DEPARTMENT OF HEALTH AND

REHABILITATIVE SERVICES 1000 N.E. 16TH AVENUE BUILDING H

GAINESVILLE, FLORIDA 32601

MR. DAVID PINGREE SECRETARY

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

1323 WINEWOOD BOULEVARD

TALLAHASSEE, FLORIDA 32301

Docket for Case No: 83-002240

Orders for Case No: 83-002240