STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BORDEN, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-5847CVL

)

DEPARTMENT OF MANAGEMENT )

SERVICES, )

)

Respondent. )

)

FINAL ORDER

In accordance with Sections 120.57(4) and 287.133(3)(e)2.f, Fla. Stat. (Supp. 1996), this case was presented upon a joint stipulation of fact and law in lieu of a formal administrative hearing.

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner should be placed on the convicted vendor list.

PRELIMINARY STATEMENT

On November 21, 1996, the Department noticed Borden, Inc., that the Department had conducted an investigation pursuant to Section 287.133, Fla. Stat. (Supp. 1996), and determined that good cause existed to place Borden on the convicted vendor list. The Department notified Borden that Borden had the right, within 21 days of receipt of the notice, to petition for a formal hearing to determine whether it was in the public interest for Borden to be placed on the convicted vendor list.

On December 4, 1996, Borden filed a petition for formal administrative hearing with the Department to determine whether it was in the public interest for Borden to be placed on the convicted vendor list.

On December 12, 1996, the Department requested the Director of the Division of Administrative Hearings to assign an administrative law judge to conduct a proceeding to determine whether it was in the public interest to place Borden on the convicted vendor list. The assigned administrative law judge set final hearing for January 7, 1997.

On December 30, 1996, the parties' filed their Joint Stipulation and Agreed Upon Settlement addressing facts and law related to the issue of placement of Borden on the convicted vendor list.

The Joint Stipulation and Agreed Upon Settlement constitutes a disposition and settlement in accordance with Sections 120.57(4) and 287.133(3)(e)2.f, Fla. Stat. (Supp. 1996).

FINDINGS OF FACT

1. On May 31, 1990, Borden pled guilty to commission of a public entity crime, as defined by Section 287.133(1)(g), Fla. Stat. (Supp. 1996), for:

   
   

   1. a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within Peninsular Florida, lasting from the early 1970's through July, 1988;

      
      

   2. a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within the Florida Panhandle, lasting from the early 1970's through July, 1988; and

      
      

   3. a conspiracy to rig bids for the award and performance of contracts to supply dairy products for use at federal military installations within Peninsular Florida and the Commonwealth of Puerto Rico, and at the Kings Bay Naval Submarine Base in Georgia, lasting from the early 1970's through July, 1988.

      
      

2. As a corporate entity, Borden was culpable of the crimes committed by its employees or agents. However, as set out in more detail in the Joint Stipulation, when the crimes came to the attention of Borden's corporate management, Borden cooperated with state and federal investigations and prosecutions of the crimes, promptly terminated the employees and disassociated itself from individuals implicated in the crimes, and promptly paid the damages and penalties resulting from Borden's conviction.

   
   

3. As set out in more detail in the Joint Stipulation, Borden notified the Department of Management Services within 30 days of its conviction.

   
   

4. As set out in more detail in the Joint Stipulation, in addition to terminating the employees implicated in the crimes, Borden has instituted self- policing to prevent public entity crimes.

   
   

5. As set out in more detail in the Joint Stipulation, after a period of suspension by the Defense Logistics Agency of the federal government in relation to Borden's public entity crime, the suspension was terminated, and Borden's Dairy Division has been reinstated as a qualified government contractor.

   
   

6. As set out in more detail in the Joint Stipulation, Borden has demonstrated its good citizenship with the exception of the public entity crime of which it was convicted.

   
   

7. As set out in more detail in the Joint Stipulation, other than the public entity crime conviction itself, there was no evidence that it is in the best interest of the public to place Borden on the convicted vendor list.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 287.133(3)(e)2.f, Fla. Stat. (Supp. 1996), provides that an administrative law judge shall enter a final order adopting the stipulation, agreed settlement, or consent order of the parties constituting an informal disposition under Section 120.57(4), Fla. Stat. (Supp. 1996).

   
   

9. Section 287.133(3)(e)4., Fla. Stat. (Supp. 1996), provides that prompt payment of damages, cooperation with investigation, and termination of the employment or other relationship with the employee or other natural person

   responsible for a public entity crime shall create a rebuttable presumption that it is not in the public interest to place a person or affiliate on the convicted vendor list.

   
   

10. As set out in more detail in the Joint Stipulation, the facts of this case establish a rebuttable presumption that it is not in the public interest to place Borden on the convicted vendor list. As set out in more detail in the Joint Stipulation, the parties agree that there was no evidence to rebut the statutory presumption.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the Joint Stipulation and Agreed Upon Settlement is adopted, and it is

ORDERED that Borden, Inc., not be placed on the convicted vendor list. DONE AND ORDERED this 7th day of January, 1997, at Tallahassee, Florida.

J. LAWRENCE JOHNSTON, Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1997.

COPIES FURNISHED:

Terry A. Stepp

Assistant General Counsel Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Morris Weinberg, Jr., Esquire

Zuckerman, Spaeder, Taylor & Evans, L.L.P. Barnett Plaza, Suite 3140

101 East Kennedy Boulevard Tampa, Florida 33602

Paul A. Rowell, Esquire Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

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

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO JUDICIAL REVIEW

Any 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 a 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 district where the party resides. The notice of appeal must be filed within thirty days of rendition of the order to be reviewed.

Docket for Case No: 96-005847CVL

Orders for Case No: 96-005847CVL