STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INDEPENDENT CHILD ABUSE ) RELIEF ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-2255BID

) DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this case pursuant to notice before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on May 1, 1990, in Tallahassee, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: J. Lester Kaney, Esquire

Cobb Cole & Bell

150 Magnolia Avenue

Daytona Beach, Florida 32115-2491

For Respondent: Patrick L. Butler, Esquire

Department of Labor and Employment Security

117 Montgomery Building

2562 Executive Center Circle East Tallahassee, Florida 32399-0658

STATEMENT OF THE ISSUES

The issue is whether Petitioner is eligible to apply for funding for VOCA funds for projects in Flagler and Volusia Counties.

PRELIMINARY STATEMENT

A hearing was held in this cause on May 1, 1990. The parties introduced into evidence Exhibits 1 through 9 and called several witnesses. Due to the necessity to avoid delay, the parties stipulated to waive preparation and filing of the transcript. Both parties submitted their proposed findings of fact and exhibits. The proposed findings of fact of the parties have been read and considered, and Appendix A contains a list of those findings which were adopted and those which were rejected and why.

FINDINGS OF FACT

1. The federal Victims of Crime Act ("VOCA"), 42 U.S.C., Sections 10601- 10603, authorizes the granting of federal funds to individual states, including the State of Florida, for the purpose of awarding grants to eligible subgrantees who provide direct assistance to victims of crime. The U.S. Department of Justice, Office for Victims of Crime, has published guidelines for the implementation of the program.

   
   

2. The federal guidelines provide, among other things, that the state to which federal monies are granted has sole discretion as to which programs within the state shall be awarded subgrants, so long as the eligibility criteria in the federal act are met by any subgrantee.

   
   

3. The Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Crimes Compensation and Victim Witness Services ("the Bureau") is the agency of the State of Florida responsible for administering the VOCA subgrant program in Florida.

   
   

4. The Petitioner, Independent Child Abuse Relief Enterprises, Inc. ("I- CARE") is an organization based in Daytona, Florida, which is devoted to providing child abuse counseling and related services. In 1988-89, I-CARE was a VOCA grant recipient.

   
   

5. Ms. Jean Becker-Powell prepared the procedures and criteria for the 1990-91 VOCA grant program. These were published in two manuals, the Manual for Continuing Programs (Exhibit 8) and the Manual for New Programs. In addition, an application package was developed. (Exhibit 9) In late February 1990, the Bureau announced the 1990-91 VOCA grant program.

   
   

6. On March 1, 1990, the Bureau received a letter from I-CARE requesting a VOCA Grant Manual and related application forms. (See Exhibit 1).

   
   

7. On March 8, 1990, I-CARE received both a VOCA Grant Manual and package of application forms. The form package included the Notice of Intent for Submitting a Proposal as the first form in the package. (See Exhibits 3, 8 and 9).

   
   

8. A schedule of pertinent deadline dates was included in the VOCA Grant Manual received by I-CARE. The schedule of deadlines included the date for the Applicant's Conference on March 22, 1990, at which Conference, questions or problems about VOCA grant application procedures could be brought to the Bureau's attention. The deadline for filing the Notice of Intent was March 29, 1990 and the deadline for filing the applications for continuing programs was April 12, 1990.

   
   

9. At the Applicant's Conference, the Bureau was able to clarify most of the questions posed by the 50 or so potential applicants who attended the Conference. No substantive changes to the VOCA Grant Manual or forms were recommended by the attendees and the Bureau did not make any substantive revisions to the VOCA grant application requirements; and specifically, no comment or revisions were made on the Notice of Intent provisions.

   
   

10. I-CARE did not attend the Applicant's Conference.

    
    

11. The Notice of Intent provisions, found at Section II A-2 of the VOCA Grant Manual, state as follows:

    Notice of Intent to Submit a Proposal: A Notice of Intent to Submit a Proposal

    must be submitted by all programs intending to file a proposal or they will not be permitted to submit an application. Applicants must complete the entire form provided in the Application. The purpose of the Notice of Intent is to estimate the number of proposals and the total amount of money being requested. A Notice of Intent to Submit a Proposal does not constitute an application for VOCA funds.

    The Notice of Intent to Submit a Proposal must be signed by the appropriate agency representative designated to sign on behalf of the agency. The original Notice and one copy must be submitted for it to be accepted by the department. The deadline for accepting a Notice of Intent to Submit a Proposal is March 29, 1990, at 2:00 p.m. Eastern Standard Time.

    Notices arriving after this time will not be considered for funding and will be returned. (FAXED COPIES ARE NOT ORIGINALS AND THEREFORE WILL NOT BE

    ACCEPTED.) Continuation programs also requesting additional funds for an expansion program can combine the two requests on one Notice of Intent to Submit a Proposal.

    
    

    (See Exhibit 8 at page 10).

    
    

12. The Executive Director of I-CARE assumed that her letter dated March 1, 1990, which requested the VOCA Grant Manual and forms, was adequate to serve as the Notice of Intent required by the VOCA Grant Manual. The previous year, a Notice of Intent had not been required. The Executive Director of I-CARE was completely unaware of the specific requirements of the Bureau's Notice of Intent provisions until after the deadline of March 29, 1990. On or before April 12, 1990, I-CARE filed applications for a continuing program in Volusia County and a new program in Flagler County.

    
    

13. On March 30, 1990, the Bureau had not received a Notice of Intent form from I-CARE. Fearing that the Notice may have been delayed in the mail, the Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Crimes Compensation and Victim Witness Services telephoned I-CARE to inquire if I-CARE had mailed the Notice of Intent form.

    
    

14. The Executive Director of I-CARE indicated that she had expressed her intent to participate in her original letter but had not mailed in the form. Realizing that it had not complied with the Notice of Intent requirements, I- CARE quickly prepared and faxed a copy of the Notice of Intent to the Bureau which was received at 12:41 p.m. on March 30, 1990. (See Exhibit 4). The original of this Notice was received by the Bureau on April 2, 1990, well past the March 29, 1990 deadline.

15. The total amount of funds available for 1990-1991 VOCA grants is approximately $2.9 million. The amount requested by qualified applicants is approximately $3.4 million. More money was requested by applicants than was available.

    
    

16. I-CARE presented no evidence that the Bureau's requirement for applicants to file a Notice of Intent is arbitrary or capricious. No evidence was presented that this requirement was not applied similarly to the other 114 applicants. To the contrary, the requirement was applied to all five applicants whose applications appeared to be late. Only one was able to show compliance with the terms of the application. Those who could not prove their applications were received by the Bureau before the deadline were rejected.

    
    

17. There was no evidence that the Bureau's conduct involved any illegality, fraud, misconduct, or dishonesty or that its decision denying I- CARE's application was arbitrary or capricious.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding, by the authority of Subsections 120.53(5) and 120.57, Florida Statutes.

The grants in question are part of a federal program; however, the right to the hearing is guaranteed under Chapter 120, Florida Statutes. The Bureau has adopted a "request for bid" approach to distribution of these federal grants.

Even though state procurement statutes do not apply specifically to VOCA grants, the process adopted to distribute grants is analogous to the procedures of an invitation to bid. The grant applicants are in competition for awards.

The instructions for application constitute the request for bids and the criteria under which the applicants will be assessed. I-CARE did not challenge the terms of the application or the process. The issue is whether I-CARE met the procedural requirements and, if not, is I-CARE disqualified. The burden of proof is on the party attempting to alter the status quo and, in this case, I- CARE bears the ultimate burden of persuasion to show that the Bureau was unfair, biased, dishonest, arbitrary or capricious in its procedures or decision making. While the Bureau may exercise its discretion to evaluate VOCA grant applications to see which of them are the most qualified, its procedures must insure fairness to all and be applied uniformly and fairly.

The Petitioner argues for the first time in its proposed findings that the instructions for the grant applications were rules which the Bureau did not properly adopt. In that regard, Section 120.56, Florida Statutes, provides that Petitioner for a rule challenge shall be in writing and filed with the Director of the Division of Administrative Hearings. This Petitioner failed to file such a petition within the statutory time precluding the opposing party's response at the hearing and in the briefs by waiting until the post-hearing briefs to raise this matter.

The Bureau's "bid" approach to these grants to agencies, which essentially are personal service contracts, does not circumvent administrative remedies, but provides alternative means of challenging the decisions of the agency. Instead of a rule challenge, the applicants and other who are interested may challenge the bid specifications; and instead of a formal hearing pursuant to Section 120.57, supra, they are entitled to a hearing under Section 120.53(5), supra.

The Petitioner had a chance to challenge the bid specifications but did not do so. The Petitioner cannot try to alter the nature of these proceedings to permit that challenge. To permit such a process would nullify the time limits established by statute in Section 120.53(5), supra.

The evidence presented did not show that the Bureau's requirement that potential applicants send a Notice of Intent prior to sending an application was unreasonable, discriminatory, or not in accordance with the guidelines. The evidence presented did not show that establishment of a deadline was arbitrary or capricious. There was no evidence presented showing that the Bureau treated I-CARE differently from other applicants. The Bureau's decision to refuse acceptance of the Petitioner's untimely Notices of Intent was uniformly applied. The Petitioner failed to show that the Bureau acted illegally, fraudulently, oppressively or dishonestly in the adoption or application of its procedures.

As such, the Petitioner has failed to carry its burden.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that the Respondent enter a Final Order denying the Petition of Petitioner.

DONE and ENTERED this 11th day of May, 1990, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2255BID

Petitioner's Proposed Findings of Fact

(All paragraphs were unnumbered by Petitioner. The numbers used refers to the Hearing Officer's count of the paragraphs in order of appearance.)

Paragraph 1: Adopted, except for the last sentence which is irrelevant. Paragraph 2: Adopted.

Paragraph 3: Adopted with substantial rewording.

Paragraph 4: The first two sentences are adopted. The third sentence is irrelevant. The fourth sentence is adopted with rewording. The fifth sentence is irrelevant. The sixth sentence is adopted.

Paragraph 5 & 6: Adopted.

Paragraph 7: The first sentence is irrelevant. The second sentence is adopted. The remainder is irrelevant.

Paragraph 8: The first sentence is irrelevant and inaccurate as evidenced by these proceedings. The remainder is adopted.

Paragraph 9: Adopted with substantial rewording.

Respondent's Proposed Findings of Fact Paragraph 1-6: Adopted.

Paragraph 7: Adopted and divided into two paragraphs. Paragraph 8 & 9: Adopted.

Paragraph 10: Adopted in part. The second sentence is rejected as irrelevant.

Paragraph 11: Adopted.

Paragraph 12: Rejected as conclusion of law, and there is no evidence to support this qualified claim.

Paragraph 13: Adopted in part and remainder is substantially reworded. Paragraph 14: Adopted.

COPIES FURNISHED:

Stephen Barron, Esq. Patrick L. Butler, Esq. Department of Labor and

Employment Security

131 Montgomery Building 2562 Executive Center

Circle East Tallahassee, FL 32399-0658

J. Lester Kaney, Esq. Cobb Cole & Bell

150 Magnolia Avenue

Daytona Beach, FL 32115-2491

Hugo Menendez, Secretary Department of Labor and

Employment Security Berkeley Building, Suite 200 2590 Executive Center

Circle East Tallahassee, FL 32399-2152

Docket for Case No: 90-002255BID

Orders for Case No: 90-002255BID