STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHERN ROOFING COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-4862CVL

)

DEPARTMENT OF MANAGEMENT )

SERVICES, )

)

Respondent. )

)

FINAL ORDER

This Order is entered pursuant to Subsection 287.133(3)(e), Florida Statutes, adopting the stipulation of the parties in the above-styled case. As stipulated, no final hearing was held.

APPEARANCES

For Petitioner: James C. Alfonso, Esquire

2522 West Kennedy Boulevard Tampa, Florida 33609

For Respondent: Cindy Horne, Esquire

Department of Management Services 4050 Explanade Way, Suite 260

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner, Southern Roofing Company, Inc., should be placed on the Convicted Vendor List, as provided in Section 287.133, Florida Statutes.

PRELIMINARY STATEMENT

After receiving notice from the Respondent, Department of Management Services (DMS), the Petitioner, Southern Roofing Company, Inc. (Southern), filed its Petition alleging that it would not be in the public interest for DMS to place the company on the Convicted Vendor List. The case was referred to the Division of Administrative Hearings for disposition.

After the formal hearing was scheduled, the parties submitted a Joint Stipulation which covered all statutory factors and which disposed of the issues entirely. The hearing was cancelled, and this Final Order adopts the parties' stipulation (with exhibit references deleted), as follows:

FINDINGS OF FACT

1. On March 22, 1995, Southern was convicted of the commission of a public-entity crime, as defined within Subsection 287.133(1)(g), Florida Statutes. Southern pled guilty to one count of 18 U.S.C., Section 371, Conspiracy to Defraud the United States, in the United States Court for the Middle District of Florida.

   
   

2. Pursuant to Subsections 287.133(3)(a) and (b), Florida Statutes, Southern made timely notification to DMS and provided details of the convictions.

   
   

3. On September 20, 1995, DMS issued a notice of intent, pursuant to Subsection 287.133(3)(e)1., Florida Statutes.

   
   

4. On October 3, 1995, pursuant to Subsection 287.133(3)(e)2., Florida Statutes, Southern timely filed a Petition for Formal Administrative Hearing to determine whether it is in the public interest for Southern to be placed on the State of Florida Convicted Vendor List.

   
   

5. Subsection 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor upon the Convicted Vendor List.

   
   

6. Subsection 287.133(3)(e)3.d., Florida Statutes, establishes "[p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the Convicted Vendor List. Southern paid restitution, fines and court costs totaling $30,193.00.

   
   

7. Subsection 287.133(3)(e)3.e., Florida Statutes, establishes "[c]ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. According to Ernest F. Peluso, Assistant United States Attorney, since early in 1994, George Peterson, President of Southern, provided active, accurate and meaningful support to the federal investigation. Mr. Peterson willingly provided documents, records and statements to illuminate the extent of the conspiratorial plan.

   
   

8. Mr. Peterson fully cooperated with DMS in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes.

   
   

9. Subsection 287.133(3)(e)3.f., Florida Statutes, establishes "[d]isassociation from any other persons or affiliates convicted of the public entity crime" as a mitigating factor. This subsection is not applicable.

   
   

10. Subsection 287.133(3)(e)3.g., Florida Statutes, establishes "[p]rior or future self-policing by the person or Florida affiliate to prevent public entity crimes" as a mitigating factor. Southern retained Michael N. Kavouklis, Esquire, to act as an ombudsman or clearinghouse for the receipt of information pertaining to any wrongdoing involving the solicitation of compensation or gratuities to customers. Each employee has received a copy of a notice directing them to report such actions to Mr. Kavouklis. The notice has also been posted in the work place as a reminder.

    
    

11. Subsection 287.133(3)(e)3.h., Florida Statutes, establishes "[r]einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. Southern was not debarred from contracting with any governmental entity.

12. Subsection 287.133(3)(e)3.i., Florida Statutes, establishes "[c]ompliance by the person or affiliate with the notification provisions of paragraph (a) or paragraph (b)" as a mitigating factor. Southern provided notice of the public entity crime violation by letter on February 17, 1995. This occurred before its conviction on March 22, 1995.

    
    

13. Subsection 287.133(3)(e)3.j., Florida Statutes, establishes "[t]he needs of public entities for additional competition in the procurement of goods and services in their respective markets" as a mitigating factor. Public entities have a frequent and continuing need for roofing services.

    
    

14. Subsection 287.133(3)(e)3.k., Florida Statutes, establishes "any demonstration of good citizenship" as a mitigating factor. Southern provided numerous documents detailing its involvement in numerous community and charitable activities.

    
    

15. This Joint Stipulation provides a full and complete factual basis for determining whether Southern should be placed on the Convicted Vendor List. In light of the facts and criteria set forth in subsection 287.133(3)(e)3.a.-k., Florida Statutes, there are no disputes issues of material fact between DMS and Southern which would require a formal hearing.

    
    

16. Both parties concur that it is not in the public interest to list Southern on the Convicted Vendor List, pursuant to Section 287.133, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction in this matter pursuant to Section 120.57(1) and Subsection 287.133(3)(e)2., Florida Statutes.

18. Subsection 287.133(3)(e)1., Florida Statutes, provides: (e)1. Upon receiving reasonable information

    from any source that a person has been convicted, the department shall investigate the information and determine whether good cause exists to place that person or an affiliate of that person on

    the convicted vendor list. If good cause exists, the department shall notify the person or affiliate in writing of its intent to place the name of

    that person or affiliate on the convicted vendor list, and of the person's or affiliate's right to a hearing, the procedure that must be followed, and the applicable time requirements. If the person or affiliate does not request a hearing, the department shall enter a final order placing the name of the person or affiliate on the convicted vendor list. No person or affiliate

    may be placed on the convicted vendor list without receiving an individual notice of intent from the department.

    
    

19. When a person or affiliate requests a formal hearing, the case is referred to the Division of Administrative Hearings, which must conduct a

    hearing and issue a Final Order under expedited deadlines. However, any time after the filing of the Petition, the parties may informally dispose of the case, pursuant to Section 120.57(3), Florida Statutes; and the Hearing Officer must enter a Final Order adopting the parties' stipulation, as provided in Subsection 287.133(3)e)2.f., Florida Statutes.

    
    

20. The parties' stipulation in this case addresses all of the factors for determining whether it is in the public interest to place a person or affiliate on the Convicted Vendor List. That stipulation is adopted, and it is hereby,

ORDERED that Petitioner, Southern Roofing Company, Inc., shall not be placed on the Convicted Vendor List.

DONE and ORDERED this 3rd day of November, 1995, in Tallahassee, Florida.

MARY W. CLARK, 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 3rd day of November, 1995.

COPIES FURNISHED:

James C. Alfonso, Esquire 2522 W. Kennedy Boulevard Tampa, FL 33609

Cindy Horne, Esquire

Department of Management Services 4050 Explanade Way, Suite 260

Tallahassee, FL 32399-0950

William H. Lindner, Secretary Department of Management Services 4050 Esplanade Way

Tallahassee, FL 32399-0950

Paul A. Rowell, Esquire General Counsel

Department of Management Services 4050 Esplanade Way

Tallahassee, FL 32399-0950

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 95-004862CVL

Orders for Case No: 95-004862CVL