) Case No. 00-1783BID
vs. )
Respondent. )
This cause came on for a disputed-fact hearing on June 5, 2000, in Tallahassee, Florida, before Ella Jane P. Davis, a duly- assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Michael E. Kinney, Esquire
N. Wes Strickland, Esquire Foley & Lardner
For Respondent: Kelly A. Bennett, Esquire
Petitioner protests the method by which Respondent Department of Transportation (DOT) advertised RFP-DOT-99/00-3002 and RFP-DOT-99/00-3003 and the specifications contained in the
RFP's SCOPE OF SERVICES, Sections 1.7.2, 2.0-A, 14.0-A, 14.0-B, and 14.0-C.
Petitioner Burns International Guard Services, Inc., of Florida, d/b/a NYCO (NYCO) timely-filed its Notice of Intent to File a Formal Written Protest and Formal Written Protest.
The case was referred to the Division of Administrative Hearings by Respondent DOT on or about April 27, 2000. Potential intervenors were notified.
By stipulation of the parties, the disputed-fact hearing was scheduled for June 5, 2000.
At hearing, the parties stipulated to some facts. Petitioner presented the oral testimony of Kenothy (Ken)
Chandler, Joseph (Joe) Huff, and Mark Thomas, and had Exhibit P-3 admitted in evidence.
Respondent presented the oral testimony of Richard Norris and Alan Reese, and had Exhibit R-10 admitted in evidence.
Exhibit R-10 is the deposition of Constance Crawford.
Joint Exhibits 1-4 were admitted in evidence.
A Transcript of the proceedings was filed on July 18, 2000.
The parties had agreed to file their proposed recommended orders within five days of the filing of the Transcript.
Respondent's Proposed Recommended Order was timely filed on July 24, 2000.
Petitioner's Proposed Recommended Order was filed one day late on July 25, 2000.
Respondent moved to strike Petitioner's Proposed Recommended Order as untimely. No response in opposition has been filed by Petitioner. However, the undersigned detects no advantage gained by Petitioner nor prejudice to Respondent to have occurred due to the late filing, and Section 120.57(3), Florida Statutes, provides for 10 days in which to file proposals. Therefore, the Motion is denied. Petitioner's proposal has been considered simultaneously with Respondent's proposal.
The subject Requests for Proposal (RFPs) are RFP-DOT- 99/00-3002 and RFP-DOT-99/00-3003, commonly referred-to as the 2000 RFPs.
These RFPs seek suppliers of security guards for rest areas and welcome centers maintained by DOT in its District III. That District currently is administered by "east" and "west" segments of Interstate Highway 10, with "east" corresponding to RFP 3003 and "west" corresponding to RFP 3002.
NYCO is a supplier of security guard services for industrial, health care, general, and retail establishments in Florida, Alabama, and Mississippi.
Ken Chandler is Administrator and Operational Manager for NYCO.
Since 1994, NYCO has bid on DOT RFPs for the same project and has provided security guard services for District III.
Generally speaking, security guards are non-skilled persons who work at or near minimum wage. Higher standards for its security guards imposed by prior DOT contracts requiring law enforcement training and certification have resulted in NYCO paying off-duty law enforcement officers at a considerably higher rate of pay to work at DOT's facilities.
The 2000 RFPs constitute "contractual services contracts" governed by Chapter 287, Florida Statutes. They also are "standard scope of services contracts," which means they are developed on a statewide basis with District input.
NYCO's first contract with DOT was awarded July 1, 1994, for two years. The second was awarded July 1, 1996, for two years. For the first contract, specifications were mailed to Mr. Chandler three months in advance of the bid submittal date. For the second contract, NYCO, as the incumbent contract holder, was notified that specifications were ready for pick-up. NYCO had to submit a written request for the RFP package.
The 1999 RFP was advertised on the Florida Communities Network (FCN) and, according to Richard Norris, DOT District III Contract Administrator, RFP packages also were sent to all proposers for the prior contract because he had promised to do
so when that set of bids had all been rejected. Apparently, no such promise was made for the 2000 RFPs. (TR-103).
FCN is a website maintained by the Florida Department of Management Services for the purpose of advertising public contracts.
During the course of NYCO's most recent contract, NYCO employee Joe Huff regularly checked with DOT personnel to ensure that the security which NYCO was already providing was going along well. Both Mr. Chandler and Mr. Huff assumed NYCO would be alerted during these conversations as to when it could request the specifications for the next round of contracts, the 2000 RFPs.
DOT employee Lloyd Tharpe submitted technical aspects of the 2000 RFPs to Richard Norris on or about December 23, 1999.
Mr. Huff testified that he made contact with DOT personnel, including Mark Thomas, Tom Williams, Charlie Ward, Rufus Baron, and Milton Blake, on February 7, February 14, February 15, February 21, and February 29, 2000. While Mr. Huff maintained that on nearly every occasion he asked if the DOT employee to whom he was speaking knew when the new RFP specifications would be ready, his testimony on the precise contents of these conversations is a little vague. He based his recollection on notes in his day planner which merely listed the name of a city, and he then assumed that he spoke with whomever
he usually contacted in that city. He could not recall the exact content of these conversations.
None of the foregoing DOT employees corroborated that they had been asked about the 2000 RFP specifications by
Mr. Huff.
It was not established that any of Mr. Huff's contacts were with DOT's procurement office, which Mr. Huff knew advertises the RFPs.
DOT District Maintenance Engineer Mark Thomas stated that he only became aware on or about February 29, 2000, that the 2000 RFP was being advertised.
Mr. Huff was told on February 29, 2000, by Mark Thomas that the 2000 RFPs were "on the street" and that the mandatory pre-bid conference would be held March 2, 2000.
NYCO attended the mandatory pre-bid conference for the 2000 RFPs on March 2, 2000.
On March 3, 2000, NYCO timely filed its Notice of Intent to Protest the specifications of the 2000 RFPs.
The deadline for submitting proposals in response to the 2000 RFPs was March 9, 2000. NYCO submitted a bid proposal timely, but found it difficult to prepare in such a short time frame.
On March 13, 2000, NYCO timely filed its Formal Written Protest of certain specifications of the 2000 RFPs.
The specifications challenged in this case were developed by the Department's State Maintenance Office. They read as follows:
1.7.2 Qualifications of Key Personnel
Those individuals (as identified in Section
12 of Exhibit "A" Scope of Services) who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Contract Manager. Where State of Florida registration, certification, or license is deemed appropriate, as identified in Exhibit "A" Scope of Services, a copy of the registration, certificate, or license shall be included in the proposal package.
2.0-A Services to be Provided by Contractor
A. Provide uniformed, armed Security Officers licensed pursuant to F.S. 493, to provide security services.
14.0 Eligibility Criteria
All Security Officers and Contract Supervisors employed by the Contractor under this Contract are required to meet the following requirements.
Training Requirements:
Must be a graduate of a certified United States federal, state, county, or local law enforcement agency training program, a correctional officer training program, a military police training program, or an equivalent training program, which presented the individual with the appropriate certificate or diploma stating eligibility for employment as a Law Enforcement or Correctional Officer. Law Enforcement Officer and Correctional Officer shall be
defined in Sections 943.10(1) and (2), Florida Statutes.
The Contractor is encouraged to seek services of security guards licensed pursuant to Chapter 493, F.S., who are former members of the armed forces of the United States and have been affected by military downsizing or base closures, and shall be further encouraged to contact community colleges or other educational institutions which provide training for security guards for candidates meeting these qualifications.
Licensing Requirements:
Contract Supervisors and Security Officers, while on duty, must possess upon their person and present to Department personnel upon request the following:
State of Florida Class "D" License (security guard license).
State of Florida Class "G" License (license authorizing individual to bear a firearm).
State of Florida Driver's License or other State Driver's License which permits the individual to operate a vehicle in the State of Florida.
No Security Officer will be permitted to work under this contract using an Acknowledgement Card from the Department of State.
A Security Officer or Contract Supervisor employed as a Law Enforcement Officer or Correctional Officer must have documentation showing proof of current employment and approval from his/her employing agency or department to carry a firearm during off-duty hours in his/her capacity as Security Officer and Contract Supervisor.
The manner of advertising the 2000 RFPs also was challenged.
For the 2000 RFPs, DOT did not advertise in newspapers or the Florida Administrative Law Weekly and did not mail specifications to incumbent contractors or to a list of potential bidders.
DOT only advertised the 2000 RFPs via FCN from approximately February 1, 2000 to March 6, 2000.
According to Richard Norris, the Department is required by statute to advertise projects on FCN. He cited neither statute nor rule to support his conclusion. He stated that there are many other or additional ways DOT may advertise a project and that advertisement by FCN is only the minimum requirement. He was not aware of any current statutory or rule requirement that DOT directly notify potential bidders for this type of RFP. However, he stated that if he were approached directly by a potential bidder, he would tell that potential bidder about the RFP over the phone.
To develop scope of services contracts such as the 2000 RFPs, Alan Reese, the Department's State Contracts and Agreements Manager, directs the gathering of information from the Department's Districts or other sources, develops a draft, receives input from each District as to the draft, and the draft is reviewed throughout the Department, including its legal office, until finally the State Maintenance Engineer signs-off on it.
In this instance, the bid specifications were intended to create a uniform and consistent statewide system that was understandable to the bidders.
Lloyd Tharpe and his staff were responsible for mailing out the RFP packages as they were requested by potential bidders after the first advertisement approximately February 1, 2000.
No active intent or effort by DOT staff to obscure NYCO's opportunity to bid was proven.
The 2000 RFPs require that to be a security guard of DOT facilities, one must be qualified to be hired as a law enforcement officer or correctional officer as defined in Subsections 943.10(1) and (2), Florida Statutes. (RFP Section 14.0-A).
The training qualifications to be hired as a law enforcement officer under Chapter 943 are higher than those imposed by a Class "D" security guard license from the Department of State pursuant to Chapter 493, Florida Statutes.
The 2000 RFP specifications also require that to be a security guard of DOT facilities one must have a Class "D" or Class "G" (if a gun is carried) license from the Department of State, pursuant to Chapter 493, Florida Statutes (RFP Section 4.0-B.1 and 2).
DOT interprets the foregoing RFP requirements to mean that even currently employed Florida law enforcement officers
and correctional officers must also be licensed by the Florida Department of State as Class "D" or Class "G" security officers.
DOT is aware of an exemption in Chapter 493, Florida Statutes, permitting law enforcement officers to act as security guards without obtaining a Class "D" license from the Department. As far as the 2000 RFPs are concerned, the exemption may not be exercised.
A 1996 DOT Inspector General's internal audit report identified individuals with questionable backgrounds working for security firms which had already contracted with DOT. The report concluded that the background checks that the then- existing contracts required the contract security firms to perform had been unsatisfactory. The report recommended that the security firms do more extensive background checks on their employees.
DOT did not want anybody guarding tourists, especially women and children tourists, who had not gone through a thorough background check.
DOT apparently felt it could not rely on the security firms to do background checks on their employee-guards. DOT determined that it did not have authority or ability to do its own background checks, so it decided to rely on the Department of State, which did have authority and ability to do background checks.
Mark Thomas understood that once an application for a Class "D" or "G" license has been received by the Secretary of State, an FDLE criminal background check is conducted by the Florida Department of Law Enforcement (FDLE), and an acknowledgment card is sent by the Department of State to the applicant which states that the applicant may perform security guard services while carrying the card. However, Mr. Thomas ultimately admitted that he did not know anything at all about Department of State background checks. His "understanding" was not corroborated by Ms. Constance Crawford.
Constance Crawford is the Bureau Chief for the Bureau of Licensing, Department of State. She handles the administrative responsibilities associated with the review of security guard applications pursuant to Chapter 493, and Sections 790.06 and 849.094, Florida Statutes. According to her, the Department of State will issue Class "D" and Class "G" security guard licenses to law enforcement officers.
Ms. Crawford provided no information about the Department of State's security guard background checks.
In developing the 2000 RFPs, DOT decided not to accept Department of State acknowledgement cards because DOT staff believed that acknowledgment cards were issued by the Department of State to applicants before a national background check (also called an NCIC check) was completed through the Federal Bureau of Investigation (FBI).
No DOT witness had knowledge of how Department of State, FDLE, or FBI background checks are performed.
Mr. Chandler testified that NYCO's problem with the RFPs' requirement for law enforcement officers to have Class "D" and/or Class "G" licenses before they are employed at DOT's interstate facilities was due to the time it takes to get Class "D" and "G" licenses issued by the Department of State, which can be anywhere from a few weeks to several months, and because it is very difficult for NYCO to retain potential employees for that long before they are placed on the jobsite. He testified that NYCO would have no problem if the employees could be certified in three days.
Mr. Chandler testified that the letters of authorization required by DOT in specification 14.0-C differed from the language employed in Chapter 493, Florida Statutes, and that many law enforcement agencies had refused to sign the form letter provided by DOT because those law enforcement agencies interpreted the letters to make the law enforcement agencies liable for anything done by the law enforcement officer, on or off-duty.
DOT's approved form letter reads: Dear Sirs:
is an employee of this Department and has the approval of this Department to carry a fire arm during off- duty hours in his/her capacity as a Security Officer and/or Contract Supervisor at the
Florida Department of Transportation Rest Areas/Welcome Centers within the Third District.
Sincerely, Name
Title
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Subsections 120.57(1) and (3), Florida Statutes.
In order to prevail herein, NYCO has the duty to go forward and the burden of proof to establish that the specifications at issue are contrary to DOT's governing statutes, rules, or policies or are clearly erroneous, contrary to competition, arbitrary, or capricious.
Petitioner NYCO's protest is based on four concepts.
Petitioner first claims an equitable estoppel based on DOT's failure to advertise and publicize the 2000 RFPs as it had advertised and publicized prior RFPs. The reasons for this theory are NYCO's belief that DOT had an obligation to continue a past course of dealing and NYCO's belief in an intentional and active DOT camouflage of the 2000 RFPs, a DOT failure to disclose to NYCO the 2000 RFPs, or a DOT delay in disclosing to NYCO the 2000 RFPs.
Rule 60A-1.002(4)(a), Florida Administrative Code, requires DOT to advertise its RFPs in either the Florida Administrative Weekly or FCN, no less than 28 days prior to the proposal opening. There is no dispute that DOT complied with
this rule.1 Petitioner has demonstrated no contrary statutory or rule authority.
It is axiomatic that each RFP is de novo. Petitioner had no right to rely on DOT's methods of advertising and publicizing prior RFPs.
Mr. Huff's testimony falls short of establishing any departmental conspiracy or intent to obscure from NYCO the opportunity to bid.
There is no guarantee that every potential bidder will have a full 28 days in which to prepare its proposal, only that
28 days of advertising will take place. In this situation, NYCO actually did bid in a timely manner, despite a delay in becoming aware of the opportunity.
Petitioner secondly asserts that the form letter provided at the pre-bid conference is contrary to specification 14.0-C and/or contrary to Chapter 493, Florida Statutes.
Specification 14.0-C requires off-duty law enforcement officers and correctional officers to have written proof of current employment as such officers and employer authorization to carry firearms when off-duty and working as security guards. It is logical and reasonable that DOT would want such assurance in writing if only to account for weapons, insulate DOT from liability, and ensure that officers maintain law enforcement proficiencies and good character as required by their regular employers.
On this second issue, Petitioner has offered no satisfactory legally-based reason why DOT cannot develop and require specification 14.0-C (see Finding of Fact No. 22) and the form letter, which is an integral part of the specification (see Finding of Fact No. 46). When the specification and the form letter are compared, they are clearly "in sync." The form letter does not abrogate, alter, or expand on the written specification.
However, in comparing specification 14.0-C to Chapter 493, Florida Statutes, one must perforce consider Section 493.6102(1), Florida Statutes, which is a statutory basis for the Department of State to require an authorization from the superiors of off-duty officers.
Petitioner's theory with regard to Section 493.6102(1), Florida Statutes, seems to be that if, with law enforcement agency employer authorization, an officer may be exempted from having to get a security guard license from the Department of State, then DOT also must be barred from requiring such authorization from the officer's law-enforcement agency employer. Such reasoning is convoluted and illogical.
Section 493.6102(1), Florida Statutes, provides:
Inapplicability of parts I through IV of this Chapter. -
This chapter shall not apply to:
Any individual who is an "officer" as defined in s. 943.10(14) or is a law enforcement officer of the United States Government, while such local, state or federal officer is engaged in her or his official duties or when performing off-duty
security activities approved by her or his superiors.
Section 943.10(14), Florida Statutes, provides:
"Officer" means any person employed or appointed as a full-time, part-time, or auxiliary law enforcement officer, correctional officer, or correctional probation officer.
Regardless of the effect Sections 493.6102(1) and 943.10(14), Florida Statutes, may have on activities of the Department of State, no legitimate theory of statutory construction permits them to be read so as to bar DOT, which is not specifically "governed" by them, from requiring written authorization on DOT's established form from the superiors of off-duty law enforcement officers and correctional officers who want to work for NYCO as security guards on a DOT facility.
Petitioner's third point of protest also is based on Section 493.6102(1), Florida Statutes. Petitioner asserts that Section 493.6102(1), Florida Statutes, exempts law enforcement and correctional officers from having to be simultaneously licensed by the Department of State in order to work as security guards.
DOT's witnesses factually acknowledged, and DOT's Proposed Recommended Order legally acknowledges that such a statutory exemption exists. DOT's position is that although the Chapter 493 exemption is normally available, the fact that
Ms. Crawford testified that the Department of State will still issue Class "D" and "G" licenses to active law enforcement
officers who apply for such licenses, is sufficient to uphold specifications 1.7.2, 2.0-A, and 14.0-B. 1 and 2.
Simplified, the third issue to be resolved is: does the Department of State's statutory exemption bar DOT's specifications 1.7.2, 2.0-A, and 14.0-B. 1 and 2, or alternatively, are these DOT specifications clearly erroneous, contrary to competition, arbitrary, or capricious?
On this issue, NYCO also cites Rule 1C-3.100, Florida Administrative Code, which provides in pertinent part:
The Division of Licensing (Division) Department of State (Department) is statutorily empowered with the authority to ensure that the public is protected from private investigation, security, and repossession services by individuals who have a criminal history, or are insufficiently or improperly trained in the field, or are unlicensed, or by agencies that are improperly insured, or are managed in a manner which does not assure compliance with the law and these rules by its licensed employees.
* * *
(3) Definitions. In addition to the definitions contained in Section 493.6101, Florida Statutes, the following terms shall mean:
(b) The term, "certified law enforcement officer" means a sworn law enforcement or corrections officer who has received certification from the Florida Criminal Justice and Training Commission.
As a fourth point of protest, Petitioner asserts that specification 14.0-B.4, stating that the Department of State's acknowledgement cards are insufficient to qualify security guards
to work on a DOT contract, constitutes a violation of Chapter 493, Florida Statutes, is outside DOT's statutory authority, and is arbitrary, capricious, and unreasonable. In this context, Petitioner asserts that the DOT specification forbidding the use of acknowledgment cards, which are the functional equivalent of temporary Class "D" security guard licenses with no expiration dates, amounts to DOT acting in excess of its delegated authority and infringing upon the regulatory authority of the Department of State pursuant to that agency's governing statute, Chapter 493, Florida Statutes.
The Department of State permits security guards to work while carrying only the acknowledgement card. Section 493.6105(9), Florida Statutes, provides:
(9) Upon submission of a complete application, a Class "CC," Class "D," Class "EE," Class "E," Class "M," Class "MA," Class "MB," or Class "MR" applicant may commence employment or appropriate duties for a licensed agency or branch office. However, the Class "C" or Class "E" applicant must work under the direction and control of a sponsoring licensee while his or her application is being processed. If the department denies application for licensure, the employment of the applicant must be terminated immediately, unless he or she performs only unregulated duties.
The Class "D" license or acknowledgment card from the Department of State permits the qualified security guard to work in his chosen field, but neither item requires an employer of security guards to hire such a person. If DOT were a private
employer, DOT could elect to employ a fully licensed security guard over one who merely holds an acknowledgment card.
However, the fourth issue with respect to acknowledgement cards is moot if the third protest point (that law enforcement and correctional officers may not be required to also get security guard licenses) is decided in Petitioner's favor.
Therefore, returning to the third protest point, since DOT has asserted that its only reason for requiring security guard licenses is to ensure that there is an adequate background check, the background checks of law enforcement officers and of security guards should be compared.
Part I of Chapter 493, Florida Statutes, at Sections 493.6105(1) through (3), and (6), provide for application disclosures to the Department of State for Class "D" and "G" security guard licenses as follows:
493.6105 Initial application for license -
Each individual, partner, or principal officer in a corporation, shall file with the department a complete application accompanied by an application fee not to exceed $60, except that the applicant for a Class "D" or "G" license shall not be required to submit an application fee. The application fee shall not be refundable.
The application submitted by any individual, partner, or corporate officer shall be approved by the department prior to that individual, partner or corporate officer assuming his or her duties.
Individuals who invest in the ownership of a licensed agency, but do not participate in, direct, or control the operations of the agency shall not be required to file an application.
Each application shall be signed by the individual under oath and shall be notarized.
The application shall contain the following information concerning the individual signing same:
Name and any aliases.
Age and date of birth.
Place of birth.
Social security number or alien registration number, whichever is applicable.
Present residence address and his or her residence addresses within the 5 years immediately preceding the submission of the application.
Occupations held presently and within the 5 years immediately preceding the submission of the application.
A statement of all convictions.
A statement whether he or she has ever been adjudicated incompetent under Chapter 744.
A statement whether he or she has ever been committed to a mental institution under Chapter 394.
A full set of fingerprints on a card provided by the department and a fingerprint fee to be established by rule of the department based upon costs determined by state and federal agency charges and department processing costs. An applicant who has, within the immediately preceding 6 months, submitted a fingerprint card and fee for licensing purposes under this chapter shall not be required to submit another fingerprint card or fee.
A personal inquiry waiver which allows the department to conduct necessary investigations to satisfy the requirements of this chapter.
Such further facts as may be required by the department to show that the individual signing the application is of good moral
character and qualified by experience and training to satisfy the requirements of this chapter.
* * *
(6) In addition to the requirements outlined in subsection (3), an applicant for a Class "G" license shall satisfy minimum training criteria for firearms established by rule of the department, which training criteria shall include, but is not limited to, 28 hours of range and classroom training taught and administered by a Class "K" licensee; however, no more than 8 hours of such training shall consist of range training. If the applicant can show proof that he or she is an active law enforcement officer currently certified under the Criminal Justice Standards and Training Commission or has completed the training required for that certification within the last 12 months, or if the applicant submits one of the certificates specified in paragraph (7)(a), the department may waive the foregoing firearms training requirement.
Section 493.6106, establishes the Class "D" and "G" security guard license requirements of the Department of State as follows:
493.6106 License requirements; posting -
Each individual licensed by the department must:
Be at least 18 years of age.
Be of good moral character.
Not have been adjudicated incapacitated under s. 744.331 or a similar statute in another state, unless her or his capacity has been judicially restored; not have been involuntarily placed in a treatment facility for the mentally ill under Chapter 394 or a similar statute in any other state, unless her or his competency has been judicially restored; and not have been diagnosed as having an incapacitating mental illness,
unless a psychologist or psychiatrist licensed in this state certifies that she or he does not currently suffer from the mental illness.
Not be a chronic and habitual user of alcoholic beverages to the extent that her or his normal faculties are impaired; not have been committed under Chapter 397, former Chapter 396, or a similar law in any other state; not have been found to be a habitual offender under s. 856.011(3) or a similar law in any other state; and not have had two or more convictions under s.316.193 or a similar law in any other state within the 3-year period immediately preceding the date the application was filed, unless the individual establishes that she or he is not currently impaired and has successfully completed a rehabilitation course.
Not have been committed for controlled
substance abuse or have been found guilty of a crime under Chapter 893 or a similar law relating to controlled substances in any other state within a 3-year period immediately preceding the date the application was filed, unless the individual establishes that she or he is not currently abusing any controlled substance and has successfully completed a rehabilitation course.
Be a citizen or legal resident alien of the United States or have been granted authorization to seek employment in this country by the United States Immigration and Naturalization Service.
Part I, Section 493.6108, Florida Statutes, provides for the Department of State background check for Class "D" and "G" licenses:
493.6108 Investigation of applicants by Department of State -
Except as otherwise provided, prior to the issuance of a license under this chapter, the department shall make an investigation of the applicant for a license. The investigation shall include:
1. An examination of fingerprint records and police records. When a criminal history analysis of any applicant under this chapter is performed by means of fingerprint card identification, the time limitations prescribed by s.120.60(1) shall be tolled during the time the applicant's fingerprint card is under review by the Department of Law Enforcement or the United State Department of Justice, Federal Bureau of Investigation.
2. If a legible set of fingerprints, as determined by the Department of Law Enforcement or the Federal Bureau of Investigation, cannot be obtained after two attempts, the Department of State may determine the applicant's eligibility based upon a criminal history record check under the applicant's name conducted by the Department of Law Enforcement and the Federal Bureau of Investigation. A set of fingerprints taken by a law enforcement agency and a written statement signed by the fingerprint technician or a licensed physician stating that there is a physical condition that precludes obtaining a legible set of fingerprints or that the fingerprints taken are the best that can be obtained is sufficient to meet this requirement.
An inquiry to determine if the applicant
has been adjudicated incompetent under Chapter 744 or has been committed to a mental institution under Chapter 394.
Such other investigation of the individual as the department may deem necessary.
In addition to subsection (1), the department shall make an investigation of the general physical fitness of the Class "G" applicant to bear a weapon or firearm. Determination of physical fitness shall be certified by a physician currently licensed pursuant to Chapter 458, Chapter 459, or any similar law of another state or authorized to act as a licensed physician by a federal agency or department. Such certification shall be submitted on a form provided by the department.
The department shall also investigate the mental history and current mental and
emotional fitness of any Class "G" applicant, and may deny a Class "G" license to anyone who has a history of mental illness or drug or alcohol abuse.
75. Part I, Subsections 493.6113(1), (2), and (3)(b), Florida Statutes, provide for biennial renewal of Class "D" and "G" licenses by the Department of State as follows:
(b) Each Class "G" licensee shall additionally submit proof that he or she has received during each year of the license period a minimum of 4 hours of firearms recertification training taught by a Class "K" licensee and has complied with such other health and training requirements which the department may adopt by rule. If proof of a minimum of 4 hours of annual firearms recertification training cannot be provided, the renewal applicant shall complete the minimum number of hours of range and classroom training required at the time of initial licensure.
Section 943.11, Florida Statutes, creates a Criminal Justice Standards and Training Commission (CJSTC) within the Florida Department of Law Enforcement (FDLE), which does training, background checks, and certifications of law enforcement officers and correctional officers.
Section 943.10, Florida Statutes, defines "law enforcement officer" and "correctional officer" for purposes of Chapter 943, Florida Statutes, the statute governing such officers:
"Law enforcement officer" means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.
"Correctional officer" means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the terms "correctional officer" does not include any secretarial, clerical, or professionally trained personnel.
Section 943.13, Florida Statutes, provides minimum certification requirements for law enforcement officers and correctional officers as follows:
943.13 Officers' minimum qualifications for employment or appointment -
On or after October 1, 1984, any person employed or appointed as a full-time, part- time, or auxiliary law enforcement officer or correctional probation officer; and on or after October 1, 1986, any person employed as a full-time, part-time, or auxiliary correctional officer by a private entity under contract to the Department of Corrections, to a county commission, or to the Correctional Privatization commission shall:
Be at least 19 years of age.
Be a citizen of the United States, notwithstanding any law of the state to the contrary.
Be a high school graduate or its "equivalent" as the commission has defined the term by rule.
Not have been convicted of any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the Untied States. Any person who, after July 1, 1981, pleads guilty or nolo contendere to or is found guilty of any felony or of a misdemeanor involving perjury or a false statement is not eligible for employment or appointment as an officer, notwithstanding suspension of sentence or withholding of adjudication. Notwithstanding this subsection, any person who has pled nolo contendere to a misdemeanor involving a false statement, prior to December 1, 1985, and has had such record sealed or expunged shall not be deemed ineligible for employment or appointment as an officer.
Have documentation of his or her
processed fingerprints on file with the employing agency or, if a private correctional officer, have documentation of
his or her processed fingerprints on file with the Department of Corrections or the Criminal Justice Standards and Training Commission. If administrative delays are caused by the department or the Federal Bureau of Investigation and the person has complied with subsections (1)-(4) and (6)- (9), he or she may be employed or appointed for a period not to exceed 1 calendar year from the date he or she was employed or appointed or until return of the processed fingerprints documenting noncompliance with subsections (1)-(4) or subsection (7), whichever occurs first.
Have passed a physical examination by a
licensed physician, based on specifications established by the commission.
Have a good moral character as determined by a background investigation under procedures established by the commission.
Execute and submit to the employing agency or, if a private correctional officer, submit to the appropriate governmental entity an affidavit-of-applicant form, adopted by the commission, attesting to his or her compliance with subsections (1)-(7). The affidavit shall be executed under oath and constitutes an official statement within the purview of s.837.06. The affidavit shall include conspicuous language that the intentional false execution of the affidavit constitutes a misdemeanor of the second degree. The affidavit shall be retained by the employing agency.
Complete a commission-approved basic
recruit training program for the applicable criminal justice discipline, unless exempt under this subsection. An applicant who has:
Completed a comparable basic recruit training program for the applicable criminal justice discipline in another state or for the Federal Government; and
Served as a full-time sworn officer in another state or for the Federal Government for at least one year is exempt in accordance with s.943.131(2) from completing the commission-approved basic recruit training program.
Achieve an acceptable score on the officer certification examination for the applicable criminal justice discipline.
Comply with the continuing training or education requirements of s.943.135.
Section 943.133(3), Florida Statutes, provides background checks for law enforcement officers and correctional officers:
(3) The commission shall adopt rules that establish procedures for conducting background investigations. The rules must specify a form for employing agencies to use to document the findings of the background investigation. Before employing or appointing any officer, the employing agency must conduct a thorough background investigation in accordance with the rules. The background information should include information setting forth the facts and reasons for any of the applicant's previous separations from private or public employment or appointment, as the applicant understands them. For the purposes of this subsection, the term "separation from employment or appointment" includes any firing, termination, resignation, retirement, or voluntary or involuntary extended leave of absence from any salaried or nonsalaried position. The employing agency must maintain the original background investigation form, which must be signed by the administrator of the employing agency or his or her designee.
A rule has been adopted by CJSTC at 11B-27.011, Florida Administrative Code, which defines good moral character for officers more strictly than do the Department of State's statutes governing security guard license applicants:
11B-27.011 Moral Character -
For the purpose of certification, employment, or appointment, pursuant to procedures established by Rule
11B-27.002(1)(g) and 11B-27.00225, F.A.C.,
the employing agency is responsible for conducting a thorough background investigation, to determine the moral character of an applicant pursuant to Section 943.13(7), F.S.
The unlawful use of any controlled substances pursuant to Rule 11B-27.00225, F.A.C., by an applicant for certification, employment, or appointment, at any time proximate to the submission of application for certification, employment or appointment, conclusively establishes that the applicant is not of good moral character pursuant to Section 943.13(7), F.S. The unlawful use of any controlled substances specified in Rule 11B-27.00225, F.A.C., by an applicant may or may not conclusively establish that the applicant is not of good moral character pursuant to Section 943.13(7) F.S., depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing in this rule chapter is intended to restrict the requirements of Section 943.13(7), F.S. to controlled substance use only.
Upon written request and submission of materials, as specified in Criminal Justice Standards and Training Commission Policies and Procedures Manual, revised January 1999, hereby incorporated by reference, the Commission shall evaluate the qualification of an applicant to determine compliance with "good moral character," pursuant to this rule section.
For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:
The perpetration by an officer of an act that would constitute any felony offense whether criminally prosecuted or not.
The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:
1. Sections 316.193, 316.1935, 327.35,
414.39, 741.31, 784.011, 784.03, 784.047,
784.048, 784.05, 790.01, | 790.10, 790.15, |
790.27, 794.027, 796.07, | 800.02, 800.03, |
806.101, 806.13, 810.08, | 812.014, 812.015, |
812.14, 817.235, 817.49, | 817.563, 817.565, |
817.567, 827.04, 828.12, | 831.30, 831.31, |
832.05, 837.012, 837.05, 837.06, 839.20,
843.02, 843.03, 843.06, 843.085, 847.011,
856.021, 870.01, 893.13, 893.147, 914.22,
944.35, 944.37, and 944.39, F.S.
Any principal, accessory, attempt, solicitation, or conspiracy pursuant to Chapter 777, F.S., which had the crime been committed or completed would have been a felony offense; or
The perpetration of an act in any jurisdiction other than the State of Florida, which if committed in the State of Florida would constitute any offense listed in this rule section.
The perpetration of an officer of acts or conduct that constitute the following offenses:
Excessive use of force, defined as a situation in which an officer uses a "level of force" inappropriate with the circumstances presented at the time of the incident. In the administrative review of "use of force" for officer disciplinary cases, the Commission applies the Commission's Recommended Use of Force and Levels of Resistance Matrix, January 1999, hereby incorporated by reference, to evaluate "use of force" circumstances presented in a disciplinary case.
Misuse of official position, defined by Section 112.313(6), F.S.
Having an unprofessional relationship with an inmate, detainee, probationer or parolee, or community controllee. An unprofessional relationship is defined as:
Having written or oral communication with an inmate, detainee, probationer or parolee, or community controllee that is intended to facilitate conduct prohibited by this rule section; or
Engaging in physical contact not required in the performance of official duties, and is defined as kissing, fondling of the genital area, buttocks, or breasts, massaging or similar touching, holding hands, any other physical contact normally associated with the demonstration of affection, or sexual misconduct as applied to all certifications, which is defined in Section 944.35(3), F.S.
Sexual harassment pursuant to and consistent with decisions interpreting 29
C.F.R. 1604.11, including unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when the harassment involves physical contact or misuse of official position and when:
Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, or
Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
Engaging in sex while on duty.
False statements during the employment application process.
Conduct that subverts or attempts to subvert, the State Officer Certification Examination process pursuant to Rule 11B- 30.009(3), F.A.C.
Conduct that subverts or attempts to subvert the State Officer Certification Examination process or an employing agency promotional examination process pursuant to Rule 11B-30.009(3), F.A.C.
Testing positive for controlled substances by conducting a urine or blood test that result in a confirmed nanogram level pursuant to Rule 11B-27.00225, F.A.C., or is consistent with and indicative of the ingestion of a controlled substance pursuant to Chapter 893, F.S., and not having a specific nanogram level listed in Rule 11B- 27.00225, F.A.C., shall be an affirmative defense to this provision to establish that any such ingestion was lawful. Any tests of this kind relied upon by the Commission for disciplinary action, shall comply with the requirements for reliability and integrity of the testing process pursuant to rule 11B- 27.00225, F.A.C.
An employing agency shall forward to Commission staff an investigation report pursuant with procedures established in Rule 11B-27.003(2)-(4), F.A.C., when the following acts or allegations have occurred:
An allegation has been made that an officer has failed to maintain good moral character defined in paragraph (4) of this rule section, and the allegation has been sustained by the employing agency; or
If an act or conduct by the officer has resulted in the officer's arrest, the report shall be forwarded to Commission staff immediately upon the officer's separation from employment; or
If the officer is not separated from employment within 45 days from the date the allegation is sustained pursuant to this rule section.
Upon receipt of information pertaining to an officer's misconduct, including violations of (4)(b) or (4)(c) of this rule section, commission staff shall review the information to determine whether to initiate a Commission probable cause review, based upon, but not limited to, the following conditions:
The severity of the violation.
The existence of any pecuniary benefit realized by the officer as a result of the misconduct.
Evidence of any intent by the officer to harm, deceive, or defraud.
In cases involving false statements the materiality of the false statements.
The disciplinary action taken by the employing agency.
A rule has been adopted by CJSTC at 11B- 27.002, Florida Administrative Code, providing for an extensive background check for officers. It encompasses the more stringent "moral character" definition.
11B-27.0022 Background Investigations -
The employing agency shall conduct a thorough background investigation of each applicant upon certification, employment, or appointment pursuant to procedures for conducting background investigations, which are established in the Criminal Justice Standards and Training Commission Policies and Procedures Manual. The agency shall have on record a summary of the findings signed and dated by the investigator and the chief administrator or designee that verifies the following information:
Information contained in the affidavit of Applicant form CJSTC-68 is accurate.
Commission staff has been contacted to verify all prior criminal justice employments
of the applicant and the facts and reasons for any prior separations of employment.
Processed Applicant Fingerprint Cards are on file reflecting state and national criminal history record checks.
A urine sample furnished by the applicant was analyzed for the presence of controlled substances or evidence pursuant to Rule 11B-27.00225, F.A.C.
The applicant is of good moral character.
The employing agency shall use the following means to complete its investigation:
Use neighborhood checks.
Use previous employment data obtained from prior employers, law enforcement records, and military history checks.
Question the applicant of any history of prior unlawful conduct.
Question the applicant about any unlawful drug use pursuant to Rule 11B- 27.0011(2), F.A.C.
Use other means to complete its investigation, including a job-related psychological examination and a polygraph examination.
In cases where an applicant's urine sample is found to contain a controlled substance or evidence thereof, upon the completion of the analysis procedures pursuant to Rule 11B-27.00225, F.A.C., the employing agency shall, if requested by the applicant, permit the applicant to provide to the employing agency evidence that the applicant lawfully used or ingested the said controlled substance.
Upon the effective date of this rule section, the employing agency completing the background investigation shall submit to Commission staff a Registration of Employment affidavit of Compliance form CJSTC-60. The information on the CJSTC-60 form may be electronically submitted via the Commission's
Automated Training Management System (ATMS2), and the agency shall also submit a completed original of the Employment Background Investigative Report form CJSTC-77, revised October 27, 1998, hereby incorporated by reference. The information on the CJSTC-77 form may be electronically submitted via the Commission's ATMS2. The original form CJSTC-
77 that has been signed and dated by the investigator and the chief administrator or designee, shall be retained in the applicant's file.
Section 943.133(7), Florida Statutes, provides for law enforcement or correctional employers to annually update background and moral character information on currently employed officers:
943.133 Responsibilities of employing agency, commission, and program with respect to compliance with employment qualifications and the conduct of background investigations; injunctive relief -
(7) The employing agency must annually submit information to the commission, as specified by rule, relating to all certified officers employed by or appointed to the employing agency so that the commission may update its records for al certified officers.
From the foregoing comparison and analysis, it cannot reasonably be concluded that DOT's specifications 1.7.2, 2.0-A, and 14.0-B. 1 and 2 are in any way contrary to DOT's own governing statutes, rules, or policies, nor contrary to any of the foregoing statutes or rules, including but not limited to the Department of State exemption in Section 493.6102(1), Florida Statutes. That leaves the question of whether these foregoing
statutes and rules render the DOT specifications contrary to competition, arbitrary, or capricious.
An "arbitrary" decision is one not supported by facts or logic. A "capricious" action is one taken irrationally, without thought or reason. Board of Clinical Laboratory Personnel v. Florida Association of Blood Banks, 721 So. 2d 317,
318 (Fla. 1st DCA 1998), citing Board of Trustees of the Internal Improvement Trust Fund, v. Levy, 656 So. 2d 1359, 1362 (Fla. 1st DCA 1995).
The only reason given by DOT for specifications 1.7.2, 2.0-A, and 14.0-B. 1 and 2 (licensing by the Department of State) is the need for an adequate background check of potential security guards.
These DOT specifications amount to requiring that law enforcement officers and correctional officers who have already undergone FDLE/CJSTC background checks for their regular licensure and employment, must again submit to background checks undertaken by FDLE/CJSTC on behalf of the Department of State in order to obtain Class "D" and "G" licenses as security guards. This is redundant and thus, unreasonable, i.e. "capricious." It creates unnecessary costs for the public and deters new entries into the marketplace. The FDLE/CJSTC background checks for law enforcement officers and correctional officers are substantially similar or exceed the background checks undertaken by FDLE/CJSTC on behalf of the Department of State for Class "D" and "G"
security guard licenses. Both agencies' systems also involve limited FBI background checks. The redundancy of such background checks has been recognized by the Legislature and by the Department of State in the Section 493.6102(1), Florida Statutes, exemption.
I conclude that the two types of background checks are so substantially similar as to render specifications 14.0-B. 1 and 2 (and by implication, specifications 1.7.2 and 2.0-A) contrary to competition, arbitrary, and capricious. This conclusion renders it unnecessary to further discuss specification 14.0-B. 4, concerning the use of acknowledgement cards.
In light of the several statutory definitions defining "officer," "law enforcement officer," and "correctional officer" as persons employed full time in those capacities and subject to annual FDLE/CJSTC background checks, I am not persuaded by DOT's assertion that if its RFP does not require a Class "D" or "G" license of off-duty officers, the RFP would create an exception from background checking for some potential security guards, thus benefiting one bidder over another.
The RFP could be redrafted to conform to the exemption already existing in Section 493.6102(1), Florida Statutes, or to incorporate the statutory definitions of "officer," "law enforcement officer," and "correctional officer," as persons employed full-time in those capacities and subject to FDLE/CJSTC
background checks. Then the RFP could permit such law enforcement and correctional officers currently employed in their field to qualify for DOT work either with a Department of State "D" or "G" license or to qualify for DOT work with proof of current law enforcement or correctional employment (for instance, by the authorization letter required by specification 14.0-C), which employment implicitly includes an FDLE/CJSTC background check and proof of good moral character. Persons who are not exempted pursuant to Section 493.6102(1), Florida Statutes, could be permitted to qualify for DOT work with a Class "D" or "G" license, which means they have also had a background check.
RECOMMENDED that a final order be entered by the Department of Transportation which rejects all bids and provides that the specifications be redrafted in accordance with the foregoing Findings of Fact and Conclusions of Law.
ELLA JANE P. DAVIS
1/ Rule 60A-1.002(4)(a), Florida Administrative Code, lists Section 287.042(1), Florida Statutes, as part of its "law implemented." Respondent DOT asserts that the rule is derived from this statute. The statute says nothing about FCN but refers to "Government Services Direct" of which the undersigned assumes FCN is a subset. Even if FCN is not a subset of Government Services Direct, the rule is sufficient authority (in the absence of any contrary statute or a rule challenge) for DOT's procedures in this bid case.
Michael E. Kinney, Esquire
N. Wes Strickland, Esquire Foley & Lardner
James C. Myers
10 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
