STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT LITOWITZ, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1604BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

and )

)

JAMES C. COLROSS, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on April 28 and 29, 1987, in Tallahassee, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Byron B. Mathews, Jr., Esquire

Paul H. Amundsen, Esquire Monroe-Park Tower Suite 1090

101 North Monroe Street Tallahassee, Florida 32301

For Respondent: Robert Powell, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

For Intervenor: Michael J. Cherniga, Esquire

101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32301

BACKGROUND AND PROCEDURAL MATTERS

On March 20, 1987, Robert Litowitz filed a letter notifying the Department of Health and Rehabilitative Services of his intent to protest a bid award for a real property lease to be the departments' disability determination office in Miami, Florida. A timely formal written protest of the bid award was filed with

the Department of Health and Rehabilitative Services on March 30, 1987. On April 14, 1987, the case was forwarded to the Division of Administrative Hearings for formal proceedings.

At the final hearing, Petitioner testified on his own behalf and presented the testimony of the following witnesses: Linda Treml, an employee of Department of Health and Rehabilitative Services who served as the contact person" for the bid; Grace Dabolish, an employee of Department of Health and Rehabilitative Services who served as a member of the bid evaluation team; Janet Robinson, area program manager for the disability determination office in Miami; Harvey Bernstein, a traffic engineer for Metro Dade County; Dorea Sowinski, an employee of Department of Health and Rehabilitative Services who served on the bid evaluation team; George Smith, senior management analyst for Department of Health and Rehabilitative Services; and W. T. Etzel, Jr., a real estate broker from Miami. The Petitioner's Exhibits, numbered 1 through 9, were admitted into evidence. The Respondent and the Intervenor presented a joint case. The Intervenor testified on his own behalf and presented the testimony of the following witnesses: Vincent Mele, a real estate broker from Miami; Janet Robinson; Linda Treml; and George Smith. The Intervenor's Exhibit 1 was admitted into evidence.

After the hearing, the Petitioner and Intervenor filed Proposed Recommended Orders. The Respondent filed a notice joining the intervenor's Proposal. These have been carefully considered in the preparation of this Recommended Order and specific rulings on the Proposed Findings of Fact are included in the attached Appendix.

ISSUE

The central issue in this case is whether the bid for the Department of Health and Rehabilitative Services Lease No. 590:1871 to provide office space in Dade County, Florida, should be awarded to either Petitioner or Intervenor.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. The Petitioner, Robert Litowitz (hereinafter "Litowitz"), in response to an invitation to bid advertised by the Department of Health and Rehabilitative Services (hereinafter "HRS"), timely filed a bid submittal form offering to lease real property located at 11401 SW 40th Street (also known as Bird Road), Miami, Florida. This lease was to be for a five-year term with two one-year renewal options.

   
   

2. The net square footage for the lease required by HRS was 14,781 + 3 percent with the geographical boundary designated by the invitation to bid being described as follows:

   
   

   All bid should be for existing office space located within the following boundaries: On the North, S.W., 48th Street. On the South,

   S. W., 88th Street. On the East, Palmetto Expressway, and on the West, S.W., 117th Street.

   This description contained an error in that the western boundary line should have been 117th Avenue not 117th Street. This minor discrepancy was noted at both of two pre-bid conferences conducted by HRS.

   
   

3. The Intervenor, James C. Colross (hereinafter "Colross"), also timely filed a bid submittal form offering to lease real property described as Building "B," 9495 Sunset Drive (Southwest 72nd Street), Miami, Florida.

   
   

4. Prior to the bid opening date, February 17, 1987, employees of HRS conducted two pre-bid conferences. At these conferences the bid package was reviewed and explained to all potential bidders present. Litowitz attended the pre-bid conference held the last week in January 1987. At this pre-bid conference Litowitz received the bid package and advised employees of HRS that he would be submitting property located on Bird Road for consideration for lease No. 590:1871.

   
   

5. Linda Treml was the HRS employee who served as the contact person for the bid for Lease No. 590:1871. Ms. Treml conducted the pre-bid conferences and answered questions from potential bidders regarding the bid submittal forms.

   
   

6. Several months earlier, perhaps during the summer 1986, Litowitz had met with Linda Treml regarding the possible lease of the Bird Road site, Ms. Treml had advised Litowitz that, at that time, HRS was not looking for space but that Litowitz would be added to their mailing list for future bid opportunities. Ms. Treml toured the Bird Road property with Litowitz as a courtesy visit for his inquiry.

   
   

7. The bid submittal form for Lease No. 590:1871 required the proposed space be in an existing building. "Existing" was defined to specify the entire space to be dry and capable of being physically measured to determine net rentable square footage. Both the Colross and the Litowitz properties met this definition for an existing building at the time of the bid submittals.

   
   

8. The bid submittal form for Lease No. 590:1871 required a minimum of 90 parking spaces to include a minimum of 80 full size spaces and 4 spaces meeting the Standards For Special Facilities For Physically Disabled found in Chapter 130-1, Florida Administrative Code. The required parking spaces did not have to be reserved for the exclusive use of HRS. Colross offered 62 exclusive spaces on site with 50 additional exclusive parking spaces located one block from the proposed facility. The Colross site plan for Building B (the bid property) established over 90 non-exclusive parking spaces available on site. The Litowitz property also had 90-plus non-exclusive parking spaces on site. HRS requested a clarification for the 50 exclusive spaces offered off-site by Colross. The verbal clarification was reduced to writing to confirm such spaces, if needed, would be at no cost to HRS. This written confirmation was not issued until March 31, 1987.

   
   

9. HRS established a bid evaluation team to review the bids submitted for Lease No. 590:1871. This team, comprised of Janet Robinson, Dorea Sowinski, and Grace 0abolish, visited both the Litowitz and Colross properties. Subsequent to the site tours, they met in a conference room at Janet Robinson's office to discuss the bid evaluation process. This team was to make a recommendation as to which bid was the lowest and best. The recommendation was to be made based upon the evaluation criteria set forth in the bid submittal form. No other criteria were to be employed by the evaluation team. HRS has no guidelines which specified how each team member is to apply the evaluation criteria. The team recommendation would then be reviewed by George Smith and his superiors.

10. Linda Treml advised the evaluation team not to consider the Litowitz property because it was outside the geographical boundary established by the invitation to-bid. The Litowitz property located on Bird Road is, in fact, outside of the advertised boundaries.

    
    

11. The bid advertisement required the property to be considered for Lease No. 590:1871 to be within the stated geographical area.

    
    

12. HRS did not, by act or omission, encourage Litowitz to prepare and submit a bid for a property known to be outside the defined boundary. HRS did not advise Litowitz that a property outside of the defined boundary would be disqualified.

    
    

13. The bid evaluation criteria assigned a weighing value of 10 percent to the proximity of the offered space in the central or preferred area of the map boundaries. Litowitz mistakenly concluded that even though his property was not within the boundaries that he would lose only the 10 percent weighing factor when his property would be evaluated. HRS did not, by act or omission, affirm this erroneous interpretation.

    
    

14. Because the Litowitz property was not within the defined geographical boundary, HRS disqualified the Litowitz bid. Accordingly, the Colross bid was the only bid left for consideration and was selected for Lease No. 590:1871. The interested parties were notified of this selection on or about March 19, 1987.

    
    

15. The Colross bid included a higher rental fee than the Litowitz bid.

    
    

16. HRS rejected a third bid for Lease No. 590:1871 submitted by Brookhill Capital Resources (hereinafter "Brookhill") since it was missing certain documents which had to be submitted by the time of the bid opening. The Brookhill bid included a lower rental fee than the Litowitz bid. The Brookhill property was within the advertised boundary.

    
    

17. HRS selected the Colross property and deemed it the lowest and best bid since the Litowitz and Brookhill properties had to be disqualified. Members of the bid evaluation team preferred the Colross property for Lease No. 590:1871.

    
    

18. HRS did not waive the boundary requirement for Lease No. 590:1871.

    
    

19. Employees of HRS completed a bid synopsis which listed data on all three bidders for lease no. 590:1871 even though two of the bidders, Litowitz and Brookhill, had been disqualified,

    
    

20. HRS reserved the right to reject any and all bids when such rejection would be in the interest of the State of Florida.

    
    

21. Janet Robinson as the managing administrator of the disability determination office set the geographical boundaries for the invitation to bid. The boundaries were established in consideration of the needs and desires of the employees of the disability determination office.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

23. Section 255.25(3)(a), Florida Statutes, provides, in part:

    
    

    No state agency shall enter into a lease as lessee for the use of 2000 square feet or more of space in a privately owned building except upon advertisement for and receipt of competitive bids and award to the lowest and best bidder.

    
    

    The guidelines of the bidding procedure required by Section 255.25 Florida Statutes are set forth in Rule 13M-1.015(5) Florida Administrative Code. This Rule provides, in part:

    
    

    1. The user agency alone shall reserve the right to accept or reject any or all bids submitted and if necessary reinitiate

       procedures for soliciting competitive proposals.

       * * *

       1. The evaluation shall be made by the user agency.

       2. Selection (deemed to be the lowest and best bid) shall be made by the user agency.

       
       

       Additionally, this rule requires an agency to specify, in the bid solicitation, the general area in which the desired space is to be located. The record in this case established HRS met its burden to advertise the general geographical area in which the property for Lease No. 590:1871 was to be located. That the advertisement contained a minor error proved of no consequence since all interested parties were apprised of the correct boundary. The location of the boundary was never in dispute.

       
       

24. Additionally, the appropriateness of the boundaries was not timely challenged. Rule 10-13.011, Florida Administrative Code, specifies that the notice for an intent to protest must be filed within 72 hours of the notice of the agency decision. Thereafter, within 10 days from the initial intent to protest, a formal written protest must be filed. In the case at issue, Petitioner followed the required procedure but did not challenge the appropriateness of the boundary. The formal protest did not address the boundary issue except as it related to the issues of waiver and estoppel. Moreover, the parties' prehearing stipulation did not recognize the appropriateness of the boundaries as an issue to be resolved. Consequently, factual matters relating to the appropriateness of the boundary set by HRS have not been included. Clearly, under Rule 13M-1.015, Florida Administrative Code, HRS has the authority, and indeed must exercise the authority, to set geographical boundaries for its proposed lease spaces.

    
    

25. As an unsuccessful, disqualified bidder, Litowitz had legal standing to challenge the bid award to Colross. This is true because had Litowitz been able to prove either waiver or estoppel, he would have emerged as the lowest bidder. As the potential lowest bidder, Litowitz has a substantial interest in the bid award . Preston Carrol Company, Inc. v. Florida Keys Aqueduct Authority, 400 So.2d 524 (Fla. 3rd DCA 1981).

26. Rule 10-13.012, Florida Administrative Code, authorizes HRS to waive minor irregularities in an otherwise valid bid or proposal. A minor irregularity is defined to be a variation which does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders. Clearly, HRS did not consider the boundary criteria to be a minor irregularity. To totally disregard the advertised boundary would erode the integrity of the public bidding process. The mere fact that HRS did not, in advance, advise Litowitz that his property could not be considered does not constitute a waiver. Petitioner failed to prove the allegations of his formal protest i.e., that HRS told Litowitz to submit the bid because the boundaries did not count or would be only 10 percent of the bid evaluation. Even Litowitz's own testimony confirmed HRS neither told him the bid would or would not be considered. If the Bird Road property had been considered, Litowitz would have enjoyed a benefit not shared by other bidders and potential bidders. There may be many properties outside of the boundary which could offer lower rental rates. To do justice to the bidding process, other properties outside the boundary would have to be given an opportunity to bid if a waiver of the boundaries were possible.

    
    

27. The doctrine of estoppel may be applied against an agency of the state only in exceptional circumstances. A Petitioner claiming estoppel must establish the following elements:

    
    

    1. A representation as to a material fact that is contrary to a later-asserted position;

    2. Reliance on that representation; and

    3. A change in positions detrimental to the party claiming estoppel, caused by the repre- sentation and reliance thereon.

    
    

    Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212 (Fla. 1st DCA 1986). In the case at issue Litowitz has not established HRS changed its position as to any represented material fact. HRS is not required to "pre- disqualify" bidders. HRS did not advise Litowitz his property would be considered. HRS did not advise Litowitz his property would not be considered.

    There is no duty by law or rule requiring HRS to make such disclosures in advance of the bid opening. Additionally, there is no evidence to suggest that the omission of such a disclosure was done to mislead Litowitz or to favor one bidder over another. Since Litowitz has not established even the first element of estoppel, the claim must fail.

    
    

28. Section 120.57(1)5, Florida Statutes, provides for an award of a reasonable attorney's fee if a pleading, motion, or other paper is signed in violation of the section. This section specifies:

The signature of a party, a party's attorney, or a party's qualified representative constituted a certificate that he has read the pleading, motion, or other paper and that, to the best of his knowledge, informa- tion, and belief formed after reasonable inquiry, it is not interposed for an improper purposes, such as to harass or to cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper is

signed in violation of these requirements, the hearing officer, upon motion or his own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or

other paper, including a reasonable attorney's fee.

At the conclusion of the final hearing in this cause, Colross moved for the imposition of costs and attorney's fees against Petitioner. There is no basis in the record to suggest Petitioner filed the formal protest for the impermissible reasons outlined in Section 120.57(1)5, Florida Statutes.

Consequently, Colross' request for costs and fees must be denied Based on the foregoing, it is

RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a Final Order confirming the award of Lease No. 590:1871 to James C. Colross as the lowest and best bidder.

DONE and RECOMMENDED this 8th day of June 1987 in Tallahassee, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 8th day of June 1987.

APPENDIX

Inasmuch as the issues of waiver and estoppel have been resolved against Petitioner, many of the proposed findings of fact have been rendered moot. Had either waiver or estoppel been established, such findings may have been relevant to speak to a justification for rebidding the project, but under the facts of this case the proposed findings are unnecessary and irrelevant. Accordingly, they have not been addressed in the Recommended Findings of Fact of this Order.

Rulings on Petitioner's Proposed Findings of Fact:

1. Paragraph 1 is accepted in substance. See Background and Procedural Matters.

2. Paragraph 2 is accepted in Findings of Fact Paragraphs 1 and 2.

3. Paragraph 3 is accepted. See Background and Procedural Matters.

4. Paragraph 4 is accepted in Findings of Fact Paragraphs 2 and 7.

5. Paragraph 5 is accepted in substance in Findings of Fact Paragraph 5.

6. Paragraph 6 is rejected as contrary to the weight of the evidence. See Findings of Fact Paragraph 11 (Petitioner's Exhibit 1, Transcript p. 244).

7. Paragraph 7 is accepted in substance in Findings of Fact Paragraph 2.

8. Paragraphs 8 and 9 are accepted but are unnecessary and irrelevant to the disposition of the matter; therefore, they are

   not addressed in a Finding of Fact.

9. Paragraph 10 is accepted in Findings of Fact Paragraph 21.

10. Paragraphs 11, 12, 13, 14, 15, and 16 are accepted but are unnecessary and irrelevant to the disposition of the matter; therefore, they are not addressed in a Finding of Fact.

11. Paragraphs 17, 18, 19, 20, 21, and 22 are rejected as unnecessary, irrelevant and argumentative.

12. Paragraph 23 is accepted in substance in Findings of Fact Paragraphs 3, 14, and 15.

13. Paragraph 24 is rejected as contrary to the weight of the evidence. Moreover, since HRS did not waive the boundary requirement, Paragraph 24 is, in substance, unnecessary and irrelevant.

14. Paragraph 25 is accepted and addressed in substance in Findings of Fact Paragraph 21.

15. Paragraph 26 is rejected as unnecessary and irrelevant.

16. Paragraph 27 is rejected as unnecessary and irrelevant.

17. Paragraph 28 is rejected as unnecessary and irrelevant.

18. Paragraphs 29, 30, 31, 32, 33, 34, and 35 are rejected as irrelevant, argumentative, unnecessary, and outside the scope of the issue of this matter.

19. Paragraph 36 is accepted in substance in Findings of Fact Paragraph 3.

20. Paragraph 37 is accepted in substance in Findings of Fact Paragraph 1.

21. Paragraph 33 is accepted in substance in Findings of Fact paragraphs 1 and 10.

22. Paragraph 39 is rejected as unnecessary.

23. Paragraphs 40, 41, 42, 43, 44, 45, 46, 47, and 48 are rejected as unnecessary and irrelevant.

24. Paragraph 49 is rejected as irrelevant, argumentative, and unsupported by the weight of evidence.

25. Paragraph 50 is accepted in substance in Findings of Fact Paragraph 9.

26. Paragraph 51 is accepted but is unnecessary and irrelevant to the disposition of this matter.

27. Paragraphs 52, 53, and 54 are rejected as irrelevant and unnecessary.

28. Paragraphs 55 is accepted in Findings of Fact Paragraph 9.

29. Paragraph So is accepted but is unnecessary and irrelevant to the disposition of this case.

30. Paragraph 57 is accepted in Findings of Fact Paragraph 9.

31. Paragraph 53 is rejected as irrelevant.

32. Paragraph 59 is rejected as irrelevant, unnecessary and argumentative.

33. Paragraph 60 is accepted as irrelevant and unnecessary.

34. Paragraph 61 is rejected as irrelevant and unnecessary.

35. Paragraph 62 is rejected as irrelevant and unnecessary.

36. Paragraph 63 is rejected as irrelevant and unnecessary.

37. Paragraphs 64-67 are accepted in substance and addressed in Findings of Fact Paragraphs 5 and 6.

38. Paragraph 68-73 are accepted to the extent the allegations have been addressed by Findings of Fact Paragraphs 4 and 5; the balance of Paragraphs 68-

73 is rejected as irrelevant, unnecessary, and contrary to the weight of the evidence.

1. Paragraph 74 is rejected. It restates proposed finding of fact Paragraph 6. See response Paragraph 6.

2. Paragraph 75 is accepted to the extent-the allegations are addressed in Findings of Fact Paragraph 4, 5, and 13; the balance of Paragraph 75 is rejected as irrelevant and unnecessary.

3. Paragraph 76 is rejected as unnecessary, argumentative and contrary to the weight of the evidence.

4. Paragraphs 77, 78, and 79 are rejected as irrelevant and unnecessary.

5. Paragraph 80 is accepted in Findings of Fact Paragraph 4.

6. Paragraphs 91, 82, and 83 are accepted to the extent the allegations are addressed in Findings of Fact Paragraphs 9, 10, and 12; the balance of Paragraphs 81, 82, and 83 is rejected as unnecessary.

7. Paragraphs 84, 85, 36, 87, 8, 89, and 90 are rejected as unnecessary and irrelevant.

8. Paragraphs 91, 92, 93, and 94 are accepted to the extent addressed in Findings of Fact Paragraph 9, 10, 14, and 17; the balance of Paragraphs 91-94 is rejected as unnecessary and irrelevant.

9. Paragraphs 95 and 96 are rejected as irrelevant, unnecessary and argumentative.

10. Paragraph 97 is accepted in Findings of Fact Paragraphs 14, 15, and

    16.

11. Paragraph 98 is accepted in Findings of Fact Paragraph 19.

12. Paragraph 99 is rejected as irrelevant and unnecessary.

13. Paragraphs 100-104 are rejected as irrelevant and unnecessary

14. Paragraph 105 is accepted in Findings of Fact Paragraph 8.

15. Paragraph 106 is accepted in substance in Findings of Fact Paragraph

1. Whether additional off site parking for HRS' exclusive use would be charged an additional fee is irrelevant since the bid did not require exclusive parking and since the Colross property met the on site parking requirement (Findings of Fact Paragraph 8).

   1. Paragraphs 107-111 are rejected as irrelevant, unnecessary and contrary to the weight of the evidence.

   2. Paragraph 112 is accepted in Findings of Fact Paragraph 7.

   3. Paragraphs 113-115 are rejected as contrary to the weight of the evidence.

   4. Paragraph 116 is accepted in Findings of Fact Paragraph 15.

   5. Paragraphs 117-124 are rejected as unnecessary, irrelevant and argumentative.

   6. Paragraph 125 is rejected as contrary to the weight of the evidence since Litowitz's bid must be disqualified.

Rulings on the Proposed Findings of Fact of the Intervenor:

1. Paragraphs 1 is accepted in Findings of Fact Paragraph 1 and 2.

2. Paragraph 2 is accepted but is unnecessary to the determination of the issue in this matter.

3. Paragraph 3 is rejected as unnecessary.

4. Paragraphs 4 and 5 are accepted but are unnecessary to the determination of the issue in this matter.

5. Paragraph 6 is accepted in Findings of Fact Paragraph 5.

6. Paragraph 7 is accepted in Findings of Fact Paragraph 20.

7. Paragraph 8 is accepted in Findings of Fact Paragraph 2.

8. Paragraph 9 is accepted in substance in Findings of Fact Paragraphs 11,

   12 and 18.

9. Paragraph 10 is rejected as an argument more appropriately inludable as a Conclusion of Law.

10. Paragraph 11 is accepted in Findings of Fact Paragraph 21.

11. Paragraph 12 is accepted in substance in Findings of Fact Paragraph

    21.

12. Paragraphs 13-15 are rejected as unnecessary, irrelevant, and

    argumentative.

13. Paragraph 16 is accepted in substance in Findings of Fact Paragraphs

    1.

14. Paragraph 17 is accepted in Findings of Fact Paragraph 5.

15. Paragraph 18 is accepted in Findings of Fact Paragraphs 5 and 6.

16. Paragraphs 19-23 are accepted to the extent addressed in Findings of

    Fact Paragraphs 4 and 5; the balance of Paragraphs 19-23 is unnecessary.

17. Portions of Paragraphs 24 are accepted in Findings of Fact Paragraph 4; the balance of Paragraph 24 is rejected as contrary to the weight of the evidence.

18. Material portions of Paragraph 25 are accepted in Findings of Fact Paragraph 4, the balance of Paragraph 25 is rejected as unnecessary.

19. Paragraph 26 is rejected as unsupported by the weight of the evidence.

20. Paragraphs 27 and 28 are accepted but are unnecessary to the determination of the issue in this cause.

21. Paragraph 29 is accepted in substance in Findings of Fact Paragraphs 4, 5 and 12.

22. Paragraphs 30 and 31 are rejected as unnecessary.

23. Paragraph 32 is accepted in Findings of Fact Paragraph 9.

24. Paragraphs 33 and 34 are rejected as unnecessary.

25. Paragraph 35 is accepted in Findings of Fact Paragraph 4.

26. Paragraph 36 is accepted in Findings of Fact Paragraph

27. Paragraph 37 is accepted in Findings of Fact Paragraph 3.

28. Paragraph 38 is accepted in Findings of Fact Paragraph 16.

29. Paragraph 39 is accepted in Findings of Fact Paragraphs 1 and 3.

30. Paragraphs 40-42 are rejected as unnecessary.

31. Paragraphs 43 is accepted in Findings of Fact Paragraph 16.

32. Paragraph 44 is accepted in Findings of Fact Paragraphs 9.

33. Paragraph 45 is rejected as unnecessary.

34. Paragraphs 46 and 47 are rejected as irrelevant and unnecessary.

35. Paragraphs 48-49 are accepted in substance in Findings of Fact Paragraphs 9, 10 and 11.

36. Paragraph 50 is rejected as unnecessary.

37. Paragraphs 51-54 are rejected as irrelevant and unnecessary.

38. Paragraph 55 is accepted in Findings of Fact Paragraph

39. Paragraphs 56-66 are accepted but are unnecessary to the determination of the issue in this cause. See Findings of Fact Paragraph 15.

40. Paragraph 67 is accepted in Findings of Fact Paragraph 7.

41. Paragraph 68 is accepted in Findings of Fact Paragraph 8.

42. Paragraph 69 is accepted in Findings of Fact Paragraph 8.

43. Paragraph 70 is accepted in substance in Findings of Fact Paragraph 8.

44. Paragraph 71 is accepted in Findings of Fact Paragraph 8.

45. Paragraphs 72-75 are rejected as unnecessary.

46. Paragraph 76 is accepted in Findings of Fact Paragraph 8.

47. Paragraph 77 is rejected as unnecessary.

48. Paragraphs 78-83 are rejected as irrelevant and unnecessary.

49. Paragraph 84 is accepted to the extent addressed in Findings of Fact Paragraph 13; the balance of Paragraph 84 is unnecessary.

50. Paragraphs 85-88 are rejected as irrelevant, unnecessary and argumentative.

COPIES FURNISHED:

Byron B. Mathews, Jr., Esquire Paul H. Amundsen, Esquire Monroe-Park Tower Suite 1090

101 North Monroe Street Tallahassee, Florida 32301

Robert Powell, Esquire Assistant General Counsel Department of HRS

1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700

Michael J. Cherniga, Esquire

101 East College Avenue

P. O. Drawer 1838 Tallahassee, Florida 32301

Gregory L. Coler, Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 87-001604BID

Orders for Case No: 87-001604BID