STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOCA BAY DUI PROGRAM, INC.,
vs.
Petitioner,
Case No. 13-1222
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,
Respondent.
/
RECOMMENDED ORDER
Pursuant to notice, a formal administrative hearing was conducted in Fort Lauderdale, Florida, on January 22 and 23, 2014, before Administrative Law Judge Mary Li Creasy.
APPEARANCES
For Petitioner: William G. Salim, Jr., Esquire
Moskowitz, Mandell, Salim and Simowitz, P.A.
800 Corporate Drive, Suite 500 Fort Lauderdale, Florida 33334
For Respondent: Charlyne M. Khai Patterson, Esquire
Department of Highway Safety and Motor Vehicles
2900 Apalachee Parkway, Suite A-432 Tallahassee, Florida 32399-1050
STATEMENT OF THE ISSUE
The issue is whether denial of Petitioner's Application for DUI Program Licensure was appropriate.
PRELIMINARY STATEMENT
Pursuant to section 322.292, Florida Statutes, Petitioner, Boca Bay DUI Program, Inc. (Petitioner), filed an Application for DUI Program Licensure (Application) to operate a driving under the influence (DUI) program in northern Broward County.
Respondent, Department of Highway Safety and Motor Vehicles (the Department), notified Petitioner, by letter dated February 21, 2013, that its Application was denied. The Department provided a revised notice of denial on March 5, 2013, which included a statement regarding the administrative process to contest the determination (Denial Letters).
On March 22, 2013, Petitioner filed a Formal Petition Protesting DUI Program License Denial (Petition). Petitioner's Petition and a Petition to Intervene, filed by Broward-Dade Safety Council (BDSC), were transmitted to the Division of Administrative Hearings on April 8, 2013, for a formal administrative hearing and assigned to Administrative Law Judge Jessica E. Varn.
The Petition to Intervene was granted on April 16, 2013. The case was initially set for hearing on July 23 through 25, 2013. Intervenor, BDSC, withdrew its Petition to Intervene and was removed as an intervenor on May 22, 2013. Petitioner's unopposed Motion for Continuance of Hearing for Good Cause was granted, and the hearing was re-scheduled for September 9
through 11, 2013. The Department filed a Notice of Unavailability of Counsel and Motion to Reschedule, and the matter was re-scheduled to be heard on September 18 through 20, 2013. This cause was transferred to the undersigned on July 15, 2013. The Department filed a Motion for Continuance on
August 23, 2013, and the final hearing was re-scheduled, as requested by the parties, for November 19 through 21, 2013. On November 15, 2013, Respondent filed an unopposed Emergency Motion for Continuance, which was granted.
The case was held as re-scheduled in Fort Lauderdale, Florida, on January 22 and 23, 2014. The parties stipulated to the admission of Joint Exhibits A1 through A12. Petitioner presented the testimony of John Dudley Miller, Ph.D.; Bridget Smitha, Esquire; Jann Tucker-Pettway; and Joseph Nickerson.
Petitioner introduced Exhibits B5 through B10, B20, B21, B28, B31 through B35, B39, B48, B57, B58, B62, and C3, which were admitted into evidence. The Department presented the testimony of Michael McGlockton, Jann Tucker-Pettway, and Milton Grosz, III. The Department introduced Exhibits C1, C4 through C6, and B60, which were admitted.
The four-volume Transcript was filed on February 18, 2014. The parties timely filed proposed recommended orders, which were considered in the preparation of this Recommended Order.
Unless otherwise noted, citations to the Florida Statutes and Florida Administrative Code refer to the 2013 version.
FINDINGS OF FACT
The Parties
DUI programs are authorized by Florida law to provide substance abuse courses to persons who have been arrested for driving under the influence. The Department is responsible for the regulation and licensing of all DUI programs in Florida. See
§ 322.292, Fla. Stat. The last time the Department approved an application for a new DUI program provider in Florida was 1997.
On November 20, 2012, Petitioner filed an Application for DUI Program Licensure, to operate a DUI program for the 17th Judicial Circuit in and for Broward County, Florida, at 100 South Military Trail, Deerfield Beach, Florida. This proposed location is in northern Broward County, approximately 1,000 yards from the Palm Beach County line. The Application was denied by the Department by certified letter to Petitioner dated February 21, 2013. After inquiry from Petitioner regarding its administrative rights, the Department provided a revised Denial Letter on
March 5, 2013, which included a point of entry for Petitioner to administratively challenge the denial of its Application.
Joseph Nickerson (Nickerson) is the principal of Petitioner. He has operated Boca Bay Insurance Agency since 1993 and Boca Bay Traffic School since 2005. In preparation for DUI
program licensure, Nickerson sought certification under the Department's rules as a DUI program instructor. He observed various classes at Metro Traffic Safety Institute, Inc. (Metro), and obtained from it a Pre-Service Instructor Training Documentation certificate in April 2012. He thereafter fulfilled the Department's Pre-Service Training requirements.1/ Nickerson appeared headed for certification when Metro apparently realized that he was an insurance agent and traffic school operator who was also interested in opening up his own DUI program. As a result, they refused to employ him as a DUI program instructor, and, therefore, Nickerson could not obtain initial certification as a DUI Program instructor under the Department's rules.
Given his desire nonetheless to open a DUI Program, Nickerson formed Boca Bay DUI Program, Inc., to obtain a DUI program license. He hired Bridget Smitha, Esquire (Smitha), from the law firm of Greenberg Traurig, to assist him in the application process.
The Applicable Criteria for Licensure
This dispute arises from Petitioner's contention that the Department ignored the requirements of applicable statutes and rules when reviewing and denying Petitioner's Application.
Section 322.292(1), Florida Statutes, directs the Department, "after consultation with the chief judge of the
affected judicial circuit," to establish requirements regarding the number of programs to be offered within a judicial circuit.
The Department's central inquiry when determining the adequacy of an application is whether improvements in service may be derived from the operation of a new DUI program.
§ 322.292(2)(c), Fla. Stat.
In making this determination, the Department must apply the following criteria:
The increased frequency of classes and availability of locations of services offered by the applicant DUI program.
Services and fees offered by the applicant DUI program and any existing DUI program.
The number of DUI clients currently served and historical trends in the number of clients served in the circuit.
The availability, accessibility, and service history of any existing DUI program services.
The applicant DUI program's service history.
The availability of resources, including personnel, demonstrated management capability, and capital and operating expenditures of the applicant DUI program.
Improved services to minority and special needs clients.
§ 322.292(2)(c)2., Fla. Stat.; Fla. Admin. Code R. 15A-10.004(9).
DUI Programs in the 17th Judicial Circuit
At the time of the filing of the Application, the 17th Judicial Circuit, which encompasses Broward County, was being serviced by two licensed DUI programs, Metro and BDSC, which were both licensed by the Department in the mid-1990s.
At the time of the filing of the Application, Metro's Broward County DUI programs were located at 2217 South University Drive, Davie, Florida; 200 Southeast Sixth Street, No. 403, Fort Lauderdale, Florida; and 3726 West Oakland Park Boulevard, Lauderdale Lakes, Florida. Metro also had a Broward location at 3300 West Hillsboro Boulevard, Deerfield Beach, Florida, which it closed on October 22, 2012. On the same date, Metro opened a new location in the 15th Judicial Circuit at 4731 West Atlantic Avenue, Delray Beach, Florida, in Palm Beach County.
At the time of the filing of the Application, BDSC's Broward County DUI programs were located at 200 Southeast Sixth Street, No. 502, Fort Lauderdale, Florida, and 3710 West Oakland Park Boulevard, Lauderdale Lakes, Florida—one in the same business complex as DUI programs offered by Metro, and the other within a mile of Metro's other Broward location.
Participants in DUI programs frequently rely on public transportation because their driver licenses have been suspended or revoked.
Participants may attend DUI classes in the county in which they reside, work, or attend school. Fla. Admin. Code R. 15A-10.009(1).
The Metro and BDSC Lauderdale Lakes location is approximately six to seven miles west of a Tri-Rail station. Tri-Rail is South Florida's public rail transportation system.
Metro's Delray Beach location in Palm Beach County is also six to seven miles west of a Tri-Rail station. Since Metro closed its North Broward Deerfield Beach location, the distance between the existing DUI programs in Broward County is approximately 30 miles.
Petitioner's proposed location is within a mile of the Deerfield Beach location where Metro closed its North Broward County DUI program in October 2012. Petitioner's proposed location would be approximately 16 to 17 miles south of its nearest competitor to the north (Metro) and approximately 15 to
16 miles north of its nearest competitors to the south (Metro and BDSC). The proposed location is approximately 1,000 feet from a Tri-Rail station, immediately off an existing exit ramp from Interstate 95, and next door to a Department of Motor Vehicles (DMV) location, and the North Broward County courthouse.
Preparation and Submission of the Application
The Department's Form 77035 (Form 77035) is required to be completed and submitted to obtain licensure as a DUI Program.
Form 77035, Section 25, includes numerous additional requirements for license applications in an area where licensed programs already exist, including a study/projection of "the total number of persons in the circuit who will need services each year," and "the numbers of persons who will be coming to your program each year."
As a result, Smitha determined that certain information regarding DUI statistics for the state of Florida would be needed to prepare such study/projection. Smitha sought, via public records requests to the Department, records as to the number of DUI arrests, convictions, DUI program attendees, and the like for various counties, including Broward (the 17th Judicial Circuit) and Palm Beach (the 15th Judicial Circuit).
Smitha also determined that the services of an expert would be necessary to prepare such study/projection. John Dudley Miller, Ph.D. (Miller), was engaged by Petitioner for that purpose. Miller is an experienced social psychologist and statistician, who has served as a consultant since 1998 and who testified as an expert witness at the final hearing herein.
Smitha's public records requests were referred by the Department to Milton Grosz (Grosz), a supervisor in the driver education process improvement and accountability section. While not the individual in charge of the driver license database, Grosz worked with the database extensively in the 20 years he has
been employed with the Department. Grosz engaged in various conversations and emails with both Smitha and Miller in his efforts to provide the requested information. Grosz ultimately provided Miller two CDs that purported to contain data as to all of the people who had attended a DUI program in Broward and Palm Beach counties, among others, for the last ten years.
What Grosz failed to explain to Smitha or Miller, and what only became fully understood at final hearing, was that the data he provided was a "snap-shot," as of the date he gathered the data.
The data provided by Grosz, on behalf of the Department in response to the records requests, did not accurately reflect those who attended a particular school in a given year, but merely those students who had "completed" a DUI program that year and who continued to live in that county on the date Grosz pulled the data. Moreover, it did not reflect which school was attended or where the course was "completed." Thus, unbeknownst to Miller, Smitha, or any other representative of Petitioner, the data was constantly changing, depending on the movement of people from county to county or the date the "snap-shot" was taken by Grosz.2/
Grosz further testified that the data provided to Miller reflected only "completions," namely those people who lived in Broward County who had completed a DUI program as of the
date the "snap-shot" was taken. "Completions" is not the relevant standard under the statute, which instead asks for a projection of clients currently and historically "served."
What the data also did not show was exactly how many people attended either BDSC or Metro classes in a given year or at which location within the county they attended. Miller and Smitha were told that such data did not exist.3/
As a result, Miller completed his study/projection required by Form 77035 unintentionally utilizing, in part, data that was inaccurate, incomplete, and irrelevant, and constantly changing. Miller's study/projection was included with the Application, Exhibits I and J thereto.
Miller did not rely totally on the data provided by the Department. Instead, utilizing the total universe of DUI citations over the past ten years for each of Broward and Palm Beach counties, he calculated the total number of people who would be cited on average. For Broward County, he calculated that 3,454 people on average would be cited per year and, for Palm Beach County, 2,696 people on average would be cited.
Then, utilizing Grosz's data, Miller figured out that over the same ten-year period an average of 2,369 people enrolled in a DUI Program in Broward County, and 1,873 in Palm Beach County.
Based on these figures, Miller concluded that a total of 6,150 would be cited for DUI and need DUI program services in each year and that those who would complete a DUI program numbered at least 4,242 per year. This constituted a reasonable projection of the number of people who would need DUI program services in any given year as requested in Form 77035,
Section 25(i).
To answer the second part of the inquiry required by Form 77035, Section 25(j), the projection of the number of persons who would come to Petitioner's DUI program each year, Miller logically reasoned that people would likely attend a DUI program closest to their home, especially in light of potential driving restrictions as a result of the DUI citation. He accordingly created a "halfway" line on the map between Petitioner's proposed location and the nearest existing providers to the north and south. Then, within those "halfway" zones, Miller utilized 2010 U.S. Census tract data to determine the population within those zones, and ultimately formulated the percentage of people who would require DUI program services for each of Broward and Palm Beach counties and who would likely seek those services from Petitioner.
For Broward County, Miller concluded that 606 people would attend Petitioner's proposed program. For Palm Beach County, Miller concluded that 333 people would attend
Petitioner's program. Totaling the two, he projected that 939 DUI-cited drivers would seek services from Petitioner each year. Importantly, Miller's study, included in the Application, includes the projections by county individually and in total.
Miller's projections were conservative. Grosz, for instance, had identified a backlog of people who were cited for DUI yet for reasons unknown and varied, including cost to imprisonment, had not yet completed a DUI program.4/ Presumably, some of these individuals would eventually attend a DUI program, including one offered by Petitioner, if available. Miller's projection did not account for the fact that some of the people in the "backlog" would likely use the services of Petitioner's proposed DUI program.
In addition, because Petitioner proposed to provide classes in Spanish and English, the Spanish-speaking population would likely travel from greater than the halfway zone since the next closest providers offering DUI classes taught in Spanish were in Davie to the south and West Palm Beach to the north. Additional students might come from the now closed Deerfield Beach Metro office. These prospective students were not included in Miller's projections.
Miller's projections conservatively estimated that at least 939 people would attend Petitioner's DUI program, and it is
reasonable to assume, given the other factors cited by him and identified above, that many more would also attend.
Based upon Miller's projected attendance figures, the Application included the requested financial analysis which showed that Petitioner's proposed program would operate as a non- profit, with anticipated expenses being equal to anticipated revenues, as required by statute.
The Application also discussed an improvement in existing services by increased classes offered seven days per week in three languages and a program curriculum and schedule based upon the recommendations in the "Emory Study."5/
Application Review Process
The review of a DUI program license application is governed by Florida Administrative Code Rule 15A-10.004(9). When the Department received Petitioner's Application, the initial review for completeness was assigned by Michael McGlockton (McGlockton), Manager, DUI and IID Programs, to Jann Tucker- Pettway (Tucker-Pettway), Government Operations Consultant. Neither McGlockton nor Tucker-Pettway had analyzed a DUI program license application prior to receipt of Petitioner's Application.
At the time of assigning Petitioner's Application, McGlockton provided Tucker-Pettway with section 322.292 and chapter 15A-10 and directed her to make sure the Application was compliant with both the statute and the rule. She was also
provided an application analysis checklist which was drafted internally prior to Tucker-Pettway's tenure with the Department. Tucker-Pettway was provided no other instruction or training in DUI application analysis.
At the time of evaluating Petitioner's Application, Tucker-Pettway had no prior experience with Metro or BDSC.
During the evaluation of Petitioner's Application, Tucker-Pettway never visited Metro or BDSC's Broward or Palm Beach locations, had no familiarity with the Broward/Palm Beach area, no knowledge of Metro or BDSC's service history, no knowledge about the curriculum offered by either Metro or BDSC (other than that they offered the standard curriculum required by the statute and applicable rules), no understanding of where Petitioner's proposed location was in relation to the Metro or BDSC locations, and no knowledge regarding the public transit system serving the Broward/Palm Beach metropolitan area in or around the existing or proposed DUI program locations.
Between November 21, 2012, and December 18, 2012, Tucker-Pettway compared Petitioner's application to the minimum application requirements set forth in section 322.292(2)(c)5. and her application analysis checklist. She determined that all the necessary information and documentation was provided and noted the same on the checklist.
As required by rule 15A-10.004(1)(b), written notices were sent by the Department, in November 2012, to BDSC, Metro, and the Chief Judge of the 17th Judicial Circuit, Judge Peter Weinstein, that an application was filed to license an additional DUI program service provider in Broward County.6/
The Chief Judge was not provided a copy of the application or advised of Petitioner's proposed location. The Chief Judge was advised only, "That application is currently under review in this office. We would appreciate receiving your comments regarding the same."
On or before December 18, 2012, Tucker-Pettway met with the "staffing team" assigned by the Department to discuss the application and provide Tucker-Pettway with support in her analysis. The additional team members included McGlockton, Robin Jackson (Jackson), and Tashena Lafleur (Lafleur). Jackson and Lafleur were hired by the Department in October 2011 and
December 2012, respectively. Like McGlockton and Tucker-Pettway, none of the other team members had familiarity with the analysis of DUI program applications, and none had any experience or knowledge regarding the services provided by Metro or BDSC at the time of reviewing the Application.
The December 18, 2012, Request for Clarification
After a review of the Application for completeness, the team decided that further clarification on certain areas was
necessary. Tucker-Pettway sought clarification by contacting Smitha by email and certified letter dated December 18, 2012 (Clarification Letter).
The Clarification Letter, drafted by Tucker-Pettway, enumerated ten areas for which the Department sought additional information and documentation. The Department requested responses to the following requests within 30 days:
Florida Statutes 322.292(2)(c)2.a., requires an applicant for DUI program to prove improvements in services through increased frequency of classes. The DUI application you submitted currently reflects the classes will be held Monday and Friday 6pm-10pm and Sat[urday] and Sun[day] 10am-5pm for Level I (12 hour required course) and Level II (21 hour required course). The application goes on to say that a client may enter class within 24 hours, not to exceed
10 days of registration and there appears to be an intention to teach the courses 3 hours at a time. Please clarify how your agency will implement the class schedules. Please provide two months of proposed class schedules to illustrate how you will implement the required hours for each level.
It is stated in Exhibit H (3) paragraph "we are oriented toward individualizing the mandated curriculum to fit the client's needs." Please advise how you intend to individualize the standardized curriculum.
The organization chart submitted is incomplete. Please provide a detailed organization chart listing all positions required by rule and statute for the DUI program.
Under Table 2, Yearly Costs of Operations/Staff Expenses, some of the
position titles do not have a special note attached. Does this mean that these positions are already employed by Boca Bay DUI Programs? Please clarify which staff is currently employed to perform DUI Program services.
The OPM points out that the CAP is going to be the court liaison, while page 3 of exhibit K states that the Program Manager will fulfill the duties of the court liaison. Please clarify which position is going to perform the duties of the court liaison.
The application states that you are applying for a DUI program in the 17th Judicial Circuit; however, the data submitted for the population who will be served includes the 15th Judicial Circuit. The data should only reflect the circuit for which you are applying, therefore, the inclusion of the 15th Judicial Circuit data would require a separate application and fee. Please resubmit the data for consideration excluding the 15th Judicial Circuit.
Exhibit I, DUI Program Backlog, states that there is a "very large backlog" of clients who need DUI services. This statement suggests there are DUI clients who are demanding services from the existing DUI programs and not receiving these services. Please provide statistical evidence of this existing client backlog.
Exhibit J, Study/Projection of the Total Number of Persons to Enroll in the Program Each Year data should only reflect the 17th Judicial Circuit. Please resubmit this data to reflect the 17th Judicial Circuit.
Exhibit K, Study/Projection of the Cost of Serving This Number of Persons and the Fees to Be Charged reflect the 17th and 15th Circuits, as stated above this application should include only the 17th Judicial Circuit
registrants. Please resubmit this data to reflect the 17th Judicial Circuit.
Section 322.292(2)(d), F.S., requires that your application includes information of the availability, accessibility and service history of any existing DUI program in the service area. After review, we did not see this information. Please provide the required information for any existing DUI program in the service area.
On December 20, 2012, Smitha, acting on Petitioner's behalf, sent an email to Tucker-Pettway and the other members of the Department's application review team in which she indicated Petitioner was preparing a response to the Clarification Letter and would provide the additional information and documentation in response to Requests 1 through 5.
In response to Requests 6, 8, and 9, in which the Department indicated it wanted only data from the 17th Judicial Circuit, Smitha responded as follows:
Subsection 25(i) of Form HSMV 77035 [the statutorily mandated DUI program license application form] states that the application must include a "study/projection of the total number [of] persons in the circuit who will need services each year."
Rule 15A–10.009, F.A.C. provides that persons may attend the DUI program that serves the "county of that person's residence, employment, or school." Because persons living in the 15th judicial circuit-- but working or attending school in the 17th judicial circuit--are permitted to attend a DUI program in the 17th judicial circuit, it seems both populations must be taken into consideration in order to accurately identify
the total number of persons in the 17th judicial circuit who will need services.
Similarly, subsection 25(j) seeks a "study/projection of the number of persons who will be coming to your program each year." Because the Boca Bay DUI Program is located so close to the county line and because, upon licensure, Rule 15A–10.009 gives the Boca Bay DUI Program jurisdiction to service residents of the 15th judicial circuit, we cannot accurately respond to subsection 25(k) without also taking into consideration the data from the 15th judicial circuit.
Finally, subsection 25(k) seeks a study/projection of the "cost of serving this number of persons in the fees to be charged." For the foregoing reasons, the data from the 15th judicial circuit must be considered in order to provide an accurate response. It was my understanding from discussions with Milton Grosz of the FDHSMV that this approach was proper because the FDHSMV could not provide data pertaining to where customers work, attend school, etc[.]--only the customer's residence (for example, per our public records request dated August 20, 2012, we requested "The number of DUI students served in the 17th judicial circuit who did not reside in the 17th judicial circuit each year for the past 10 years[";] because this information was unavailable, consideration of data from the 15th judicial circuit was necessary).
Can you please provide the statute or rule upon which you rely to say that the "data should only reflect the circuit for which you are applying?" We do not mean to be argumentative, but Boca Bay DUI program, Inc. incurred more than $30,000.00 in creating the three studies/projections and would likely incur a similar amount rewriting same in order to eliminate reference to the 15th judicial circuit.
January 9 Further Response to the Clarification Letter
After receiving no response to this December 20, 2012, inquiry, Smitha sent a follow-up email to Tucker-Pettway and the team on January 9, 2013, attaching material responsive to Clarification Letter Requests 1 through 5.
Response to Request 1—Class Schedules
The Application indicated that classes will be offered by Petitioner seven days a week. In response to Request 1, Petitioner provided color-coded class schedules for two months showing which classes (Level I and II) would be offered at what times during each day of the week. These schedules indicate that Level I classes would be available in English, Spanish, and Portuguese. Level II classes would be offered in English.
In response to concerns about class schedules and an "improvement" in services, Petitioner also replied:
Florida Statutes 322.292(2)(c)2.a., requires the applicant to prove improvements in services through increased frequency of classes. After close and careful consideration, we have come up with a schedule that we have determined represents intense and mindful attention to the findings of a 1997 study done at Emory University for the DHSMV. One of the reported deficiencies in the Florida DUI provider system had to do with the length of classes. The recommendation was that 3 hours per class would be optimum. Yet, the maximum number of hours the DHSMV will allow a program to offer remains 6 hours per class.
In order to provide the needed service of a DUI program in our area, we agonized with our future staff in designing a compromise solution that will offer level I clients sessions limited to 4 hours. We also have designed the level II experience to be the same, except for the first session of the cycle, which will be extended by 1 hour.
Common sense dictates that this is a more realistic way of approaching both tracks.
By going on-line and researching what other programs are doing, it is noteworthy that
6 hour sessions are still being offered. Therefore, we are in compliance with Florida Statutes 322.292(2)(c)2.a., by improving services through an increased number of sessions for both the level I and level II participants.
At the time of the Clarification Letter, Metro and BDSC were offering classes only Friday, Saturday, and Sunday. Level I classes are statutorily mandated to be 12 hours. Level II classes are statutorily mandated to be 21 hours. See Fla. Admin.
Code R. 15A-10.024 and 15A-10.025. Section 322.292(2)(c)5.d.
mandates that Level I and Level II classes may not be conducted in excess of a six-hour session. Because classes were being offered only three days a week by Metro and BDSC, their seven- hour per day Level II classes necessarily exceeded the mandatory length of time within which students could participate in a Level II class.
Response to Request 2—Individualized Curriculum
The Department's Request 2 asked for an explanation of the statement in the Application, Exhibit H, "We are oriented
toward individualizing the mandated curriculum to fit the client's needs."
In response, Petitioner indicated that it would "individualize" the standard curriculum mandated by statute by accommodating Spanish-speaking students needing DUI services. Another way of individualizing the curriculum proposed by Petitioner included hiring a core group of potential instructors with extensive teaching and training experience in addition to the basic credentialing requirements of the state. This would enable Petitioner to "read" the needs of the class and "make sure that no student is left behind, in a position of not being able to understand the points being covered." In addition to the mandatory curriculum, Petitioner offered to provide extra help and attention to help struggling students understand the material in the curriculum and proposed the use of a workbook and testing.
Response to Request 3—Organization Chart
Request 3 asked for a detailed organization chart listing all positions required by rule and statute for the DUI program. Exhibit E to the Application contained an organization chart listing the following: Board of Directors, Executive Staff (CEO, COO and CFO), Administrative Staff (Program Managers), Clinical Supervisor, Clinical Director, Special Supervision Supervisor, Certified Addiction Professional (CAP), and Level I
and II Instructors. Detailed job descriptions for these various positions were included in Exhibit G of the Application.
On January 9, 2013, in response to Request 3, Petitioner provided an updated organization chart which added a Manager, Court Liaison, Evaluator, Special Supervision Services Evaluator, and arrows depicting lines of reporting and possible shared responsibilities.
Response to Request 4—Currently Employed Staff
Request 4 sought clarification on the Application's Exhibit K, Table 2, "Yearly costs of Operations/Staff Expenses." Table 2 sets forth anticipated salaries by job title. The table contains several notes for certain positions that will not immediately be filled when Petitioner's business becomes operational. The Department asked "which staff is currently employed to perform DUI services?"
Petitioner responded that it does not currently have any employees because it is not authorized to conduct business unless or until licensed. Importantly, Petitioner's January 9 response states that Petitioner "has identified persons who can be immediately employed upon licensure" for the positions of CEO, CFO, Program Manager, Assistant Program Manager, Clinical Supervisor, Special Services Supervisor (credentialed for both positions), Certified Addiction Professional, Evaluator, Special Services Evaluator (credentialed for both positions), and Level I
and Level II instructors (credentialed for both positions). The response also indicated that the duties of COO, Assistant Program Manager, Evaluator, Special Supervision Services Evaluator, and Court Liaison would be temporarily filled by other employees as indicated in the notes to Table 2, and footnote 3 of Exhibit K to the Application.
Response to Request 5—Court Liaison Duties
In response to Request 5, Petitioner corrected an error that appeared in footnote 3 of Exhibit K to the Application. The Petitioner noted that footnote 3 should read that, during the initial startup of the program, the Certified Addiction Professional will act as the Court Liaison. The program Board of Directors will subsequently determine when the program is sufficiently financially sound to hire a full-time Court Liaison.
Response to Requests 6 through 10
Smitha's January 9, 2013, reply to the Clarification Letter advised that the material sought in Requests 7 (information on the "backlog" of those who were convicted of DUI but who had not taken the class) and 10 (information regarding the availability, accessibility, and service history of any existing DUI program in the service area) was likely only in the possession of, and available to, the Department.
Smitha renewed her prior request for a statutory or regulatory basis for the Department's position, contained in
Requests 6, 8, and 9, that only data from the 17th Judicial Circuit could be submitted with the Application. She indicated, "the information requested in numbers 6, 8 and 9 would make the studies/projections less accurate and are not in keeping with the information requested in the application itself." She also stated that it would likely cost in excess of $30,000.00 (in addition to the $30,000.00 already spent) to gather the information requested in Requests 6 through 10. Significantly, there was no refusal by Petitioner to supply the requested information.
To the contrary, Smitha reiterated Petitioner's intent to fully comply with all of the Department's requests. Smitha also emphasized the necessity to get a timely response to her December 20 questions because the deadline to respond to the Clarification Letter was January 18, 2013.
Smitha's email also stated, "Because the Boca Bay DUI Program, Inc. will be located approximately a mile from the former Deerfield Beach Metro Traffic School (which recently left the area due to issues with the building itself, not lack of business), we are confident that the public will be served by the opening of a new DUI Program in this same area."
The Department's Review of the Complete Application
The staffing team met several more times after receipt of the responses to the Clarification Letter.
The team also reviewed two-year-old site visit report summaries prepared by the Department for BDSC and Metro and did not see any reference to complaints received from students. However, DUI programs are not required to report student complaints to the Department.
Prior to the denial of the Application, no one from the Department actually conferred with the Chief Judge of either
the 15th or 17th Judicial Circuits.7/
On January 16, 2013, Tucker-Pettway responded, "The documentation you submitted on January 9, 2013, now completes your DUI application. Boca Bay DUI Program, Inc. application is now under review and a decision will [be] rendered within the timeframe allowed by Florida Statute 120.60."
Based upon this communication, Petitioner believed that it had provided the Department everything necessary for its Application to be approved.
This email contained no indication that the materials provided in response to paragraphs 1 through 5 of the Clarification Letter were insufficient, no additional directive to furnish only data from the 17th Judicial Circuit, no explanation as to the basis for this request in paragraphs 6, 8, and 9 in the Clarification Letter, or any indication that the Department agreed or disagreed with Petitioner's assertion that
Petitioner could not possibly provide the materials requested in response to Requests 7 and 10.
No further correspondence or communication regarding the Application was sent to Petitioner or Smitha prior to transmittal of the initial Denial Letter which was dated February 21, 2013.
The Denial of the Application
On January 28, 2013, Tucker-Pettway received additional information from BDSC regarding its enrollment data. This information was not shared with Petitioner. Significantly, BDSC alone reported higher attendance figures per year than the Department reported to Petitioner as the total students serviced in all of Broward.
By January 29, 2013, Tucker-Pettway and the team had decided to deny the Application, and a first draft of the Denial Letter was circulated. After review by the team, it was finalized and transmitted to Petitioner on February 21, 2013. The initial Denial Letter failed to include any administrative remedy provisions.
Smitha wrote to Tucker-Pettway on February 27, 2013, not only questioning the basis for certain conclusions stated in the initial Denial Letter, but also inquiring what was the applicable procedure to contest the decision. On February 28, 2013, Smitha also wrote questioning why the Department failed to
comply with rule 15A-10.041(7). Hearing nothing again, Smitha wrote on March 4, 2013, requesting a response to her two prior emails. As with all of Smitha's prior inquiries, the Department failed to respond at all and, on March 5, 2013, issued the final Denial Letter, adding the required administrative remedy provisions.
The Denial Letters mirror the criteria set forth in section 322.292 and state that Petitioner's application failed to show an improvement in services. According to the testimony at the final hearing, the Department found that Petitioner's Application did not meet any of the applicable criteria. The Department's analysis, as contained in the Denial Letters, and as testified to at the hearing by McGlockton and Tucker-Pettway, ignored the criteria set forth in the applicable statute and rule, and evidences the team's cursory review of Petitioner's Application and its complete lack of familiarity with the existing DUI program services provided in Broward County.
Increased Frequency of Classes and Availability of Locations of Services Offered By the Applicant DUI Program
With regard to the requirement that the applicant demonstrate an improvement in service by indicating an increased frequency of classes and availability of locations of services, the Department found as follows:
Boca Bay[,] Inc. proposes a new program in Deerfield Beach in North Broward County. The
application included a class schedule with an expanded number of sessions but keeping the same class schedule as the existing program. The reduction in DUI clients has led the existing program, Metro Traffic School to provide classroom education in a more fiscally efficient and responsible manner by condensing class sessions. A third program to the Broward County area would dilute the existing services provided by Metro or Broward-Dade Safety Council. In addition, Metro has a fully operational office in Delray Beach that is available to accommodate clients from the Deerfield Beach location.
The Department's determination ignores the fact that Petitioner proposed schedules with classes available seven days a week. At the time of the application, Metro and BDSC were providing classes only Friday, Saturday, and Sunday. Further, due to the relocation of Metro's Deerfield Beach site to Delray Beach, there is no DUI program available in North Broward County for approximately a 30-mile radius. Petitioner's proposed location in Deerfield Beach would fill this void and clearly increase availability of classes in North Broward County.
Ironically, although the Department rejected Petitioner's Application, in part, because Petitioner's projections suggested that students from outside Broward County might attend Petitioner's North Broward County program, the Department indicated in its Denial Letters that "Broward students" could be serviced by Metro's "fully operational" location in Delray Beach. Delray Beach is in the 15th Judicial
Circuit and Palm Beach County. Students who reside in Broward County and who do not work or go to school in Palm Beach County would not have the option of attending Metro's Delray Beach location.
The Department's representation that Metro condensed class schedules based upon declining enrollment and to be more "fiscally efficient" is without any basis in fact. Neither McGlockton nor Tucker-Pettway could explain how condensing existing class schedules into three days per week was "fiscally efficient." The only evidence presented at hearing demonstrated that Metro condensed class schedules and relocated its Deerfield Beach location to Delray Beach due to inadequate parking associated with its lease in Deerfield Beach.
Significantly, the fiscal efficiency of, and monopolistic protection for, existing DUI programs, have nothing to do with increased class schedules or availability of locations, and are not criteria upon which the Department is to make a determination regarding Petitioner's Application. Existing program providers are not guaranteed any set market share.
In this case, Metro and BDSC have been the only two DUI programs licensed in Broward County since 1997. There is no evidence that a new provider will detract from their reputation or that the referral system they utilize to achieve their market
success will diminish. In short, given the acknowledged population growth of Broward County since the licensure of Metro and BDSC, the DUI program market is, and will continue to be, great enough for another provider. This was not refuted by Respondent.
Notably absent from the Department's analysis was any examination of the increased availability of class locations due to increased accessibility offered by Petitioner. Available public transportation facilities were not known to the review team, let alone considered. Petitioner was given no credit for the fact that its proposed location, unlike the locations of the Metro and BDSC programs, is in close proximity to the interstate and to public transit.
Services and Fees Offered By the Applicant DUI program and Any Existing DUI Program
With regard to the services and fees offered by Petitioner and any existing DUI program, the Denial Letters stated the following:
Boca Bay[,] Inc. application of services includes Level I and Level II DUI education classes, substance abuse evaluations, special supervision and IID monitoring. These services are no different than the existing DUI programs. Broward[-Dade] Safety Council and Metro Traffic School offer the same services and are established DUI programs.
There is no clear advantage for Boca Bay, Inc. to have a program based upon the same services and standardized fees as existing DUI programs.
The services to be provided by DUI programs, and the fees to be charged for the same, are statutorily mandated.
By law, no program can deviate from the services offered or the fees charged to students. The Department's expectation that Petitioner must show an improvement in services offered or proposed fees in order for the Application to be accepted is irrational. If the Department has consistently interpreted the statute and rule to require a "clear advantage" in services and fees, it is not surprising that no new DUI program has been authorized since 1997.
The Number of DUI Clients Currently Served and Historical Trends in the Number of Clients Served in the Circuit
With regard to the number of DUI clients currently served and historical trends in the number of clients served in the 17th Judicial Circuit, the Denial Letters stated as follows:
The number of clients served in Broward County reflects a downward trend for the following years:
2009 | 2776 | Clients |
2010 | 2401 | Clients |
2011 | 1542 | Clients |
The decrease | in DUI | arrests over the same |
period limits the number of clients available to the existing DUI programs.
These numbers were never provided to Petitioner nor are they representative of numbers of students "served." As
explained by Grosz at the final hearing, they only represent the number of students who successfully completed DUI programs in Broward County, who were Broward County residents at the time of course completion, and who were still living in Broward County on the date the data was pulled by Grosz. As such, the numbers fluctuated depending on the date the data was pulled by Grosz and as DUI students, who completed a course in Broward, died or moved away from Broward.
In fact, the information provided to Miller indicated far more actually attended in each year. As relied upon in his report, Miller was told in Grosz's email on November 13, 2012, that the numbers for Broward County were 3,134 for 2009; 2,480 for 2010; and 1,619 for 2011, and a total of 23,698 for the prior ten years. This was the very total relied upon by Miller in his projections.
Indeed, the data compiled by Grosz from the registration fees paid by BDSC and Metro suggest that the actual number of students who enrolled (and therefore were "served" by
existing programs) Year | to take BDSC | DUI program Metro | classes were as follows: Total |
2011 | 1,983 | 1,964 | 3,947 |
2010 | 2,074 | 1,658 | 3,732 |
2009 | 2,065 | 1,837 | 3,902 |
These numbers are dramatically different than those reported by Grosz to Miller in his November 2012 email, or relied upon by the Department in its Denial Letters, and clearly show an increase in the number of DUI students attending classes from 2010 to 2011.
Even assuming arguendo that the data cited in the
Denial Letters was accurate, Miller's credible expert testimony was that three years is not a sufficient period of time within which to discern a "historical trend" with any statistical significance. Both Grosz and Miller acknowledged that arrest rates were likely down during the period of 2009 through 2011 due to the significant economic recession experienced by the country and decreased revenue to the counties for law enforcement. The data for the period of 2009 through 2011 therefore is likely reflective of an anomaly, rather than any historic trend, in either the rates at which individuals are arrested for DUI or the rate at which students enroll for DUI programs.
The numbers relied upon by the Department in its Denial Letters must be rejected as inaccurate, if not altogether irrelevant to the true inquiry, and Miller's otherwise unopposed and unrebutted projections, based upon ten years of data, accepted. To the extent that the Denial Letters rely upon the "completion" numbers provided by Grosz as the basis for the denial of Petitioner's Application, the intended denial is clearly erroneous.
The Availability, Accessibility, and Service History of Any Existing DUI Program Services
With regard to the availability, accessibility, and service history of existing DUI program services, the Denial Letters provide:
There are two DUI programs currently serving the 17th Judicial Circuit. Broward- Dade Safety Council licensed in 1996, with
2 locations and Metro Traffic School, licensed in 1994, with 3 locations. Both DUI programs provide bi-lingual DUI education classes, substance abuse evaluations, special supervision services and ignition interlock monitoring. As an added convenience,
Broward-Dade Safety Council provides online registration. Each program has demonstrated a timely delivery of services to DUI clients. This has been accomplished by having a certified staff in place, no significant delays between client registration and evaluation, and no complaints from community representatives about the services of the DUI programs.
At the time of the filing of the Application, its review and the Denial Letters, Metro had closed its Deerfield Beach location and had only two locations in Broward County. Neither was within 14 miles of the proposed location of Petitioner, and both were directly adjacent to BDSC locations. Bi-lingual courses were not offered by either anywhere near Petitioner's proposed location. There was and is no reporting requirement for complaints about providers to the Department so the fact that the Department has received no complaints is insignificant. To the extent the services offered are the same
as those proposed by Petitioner or standardized, it is merely a result of the requirements of the statute and rules.
Petitioner's Application also indicated on-line registration would be available to students.
It is undisputed that neither Tucker-Pettway nor the review team undertook any substantive evaluation of the programs offered by Metro or BDSC. The cursory assessment of the Application as compared to existing services was evidenced by Tucker-Pettway's responses to the following questions:
Q. Okay. Do you not further agree that under 5 A of the same 292 statute that there are additional requirements that we have not discussed at all that say, include a primary business office in the circuit located in a permanent structure that is readily accessible by public transportation if public transportation is available. All right, do you not agree that the public transportation facility supporting Boca Bay DUI make it accessible by public transportation?
A. As do the other programs.
Q. Okay. But you do not even know what those are for those other programs?
A. | Public | transportation? |
Q. | Yes. | |
A. | Buses, | trains. |
Q. | Okay. | Where is the nearest trains? |
A. | Cabs. | I do not know, sir. |
Q. | So you | do not-- |
A. But I am saying I do not have to know I just need to know that that's available.
The Applicant DUI Program's Service History.
Regarding Petitioner's DUI program service history, the Denial Letters stated:
Boca Bay[,] Inc. is not an established DUI program. However, the service history for Boca Bay, Inc. indicates the operation of an online traffic school and insurance agency since 1992.
Obviously, any new applicant for a DUI program, including Petitioner, will be unable to demonstrate any kind of DUI program "service history" because a license is necessary in order to operate.
At the final hearing, both McGlockton and Tucker- Pettway stated that they believed Petitioner's Application failed to show an improvement in services by any of the relevant criteria. However, both McGlockton and Tucker-Pettway testified that the fact that Petitioner had not previously operated a DUI program was not counted against Petitioner. To the contrary, the team "credited" the fact that Nickerson operated a traffic school and insurance agency since 1992.
The Availability of Resources, Including Personnel, Demonstrated Management Capability, and Capital and Operating Expenditures of the Applicant DUI Program.
With regard to the availability of Petitioner's resources, the Denial Letters provide:
Boca Bay[,] Inc. submitted an organizational chart outlining proposed operational personnel. However, based on the information supplied, only the Program Manager and Certified Addiction Specialist are readily available for employment. The lack of immediate individuals for employment as evaluator, special supervision supervisor, and clinical supervisor does not allow Boca Bay to readily establish an operational program within 45 days of licensure as outline[d] by section 322.292(2)(5), F.S. Mr. Nickerson has demonstrated his management capability as an owner of an online traffic school and a multi-line insurance agency.
Boca Bay, Inc. clearly states in its proposal that annual revenue collected from potential DUI clients is expected to equal operational expenditures. The applicant based this collection of revenue on an inaccurate projection study of potential DUI clients from the 15th and 17th Judicial Circuits.
The application also did not indicate any startup capital on hand to initially fund the program until the projected revenue could be realized.
This analysis, once again, reflects the very perfunctory review of the Application performed by the team. The Application and the supplemental materials provided by Smitha in response to the requests for clarification stated unequivocally that Petitioner had qualified staffing ready and available for immediate employment upon licensure and identified the person who would act as the manager of Petitioner's proposed DUI program.
Nothing in the statutes, rules, the Department's application form, or the Clarification Letter required
identification of the individuals Petitioner intended to hire if licensed.
In fact, in order to be licensed and maintain the license, many of the prospective employees would necessarily need to be currently working in these roles for another DUI program, most likely a competitor. It would make no sense to require Petitioner to identify the individuals who agreed to come on board if Petitioner was licensed. Such a disclosure would likely result in immediate termination by the prospective employee's current employer and loss of their license pending approval of the Application.
The criticism of Petitioner's projection, that annual revenues will equal expenses, is similarly misplaced. By statute, the operator of a DUI program must be a governmental or not-for-profit entity. § 322.292(3), Fla. Stat. By definition, a "not-for-profit" entity is one in which expenses equal revenue.
Tucker-Pettway expressed concern regarding how Petitioner would fund startup costs which would necessarily be incurred prior to the receipt of revenues. Tucker-Pettway apparently ignored the cover letter forwarding the application and Smitha's subsequent email correspondence in which was indicated that Nickerson had already incurred over $95,000 in startup costs to prepare the Application, engage in a build out of the leased space for the proposed site, purchase furniture and
equipment for the program location, and to retain an expert to make the projections required by the application. The Application also contained a copy of the lease agreement and photos of the fully-equipped class rooms, break room, and bathroom. Also attached to the Application were receipts for the build out of Petitioner's program location including for telephone equipment, furniture, locks, signage, and pest control.
Contrary to the requirements of section 120.60(1), Florida Statutes, at no time was Petitioner advised that its Application was deficient because it did not contain a "balance sheet" or was Petitioner asked to explain how startup costs were funded.
The suggestion that Miller's study contained "inaccurate projections" because the calculations included reference to possible prospective students from Palm Beach County is specious at best. Form 77035, Section 25(j), requires the applicant to provide, "a study/projection of the number of persons who will be coming to your program each year. All data, facts and assumptions upon which the study is based must be included."
Form 77035 does not limit this request to only persons who will be coming to the program from the county in which the program is located. Additionally, when Smitha repeatedly asked
for an explanation why data from the 15th Judicial Circuit should not be included, the Department failed to respond.
Improved Services to Minority and Special Needs Clients
With regard to whether Petitioner's Application demonstrated improved services to minority and special needs clients, the Denial Letters state:
Boca Bay, Inc. did not clearly explain how it would assess and implement an improved service to a minority or special needs population. For example, if a hearing impaired client needed a sign language interpreter, what would be the program's protocol to supply the special need within the ADA requirements?
The applicant's proposal to provide bi- lingual services to DUI clients in Deerfield Beach is the same service currently provided by the existing DUI program, which employs bi-lingual certified staff in its Delray Beach office.
Boca Bay, Inc.'s application is predicated upon the closing of the Deerfield Beach branch of Metro Traffic School, leaving potential DUI clients without service. The Delray Beach office is less than 12 miles from the previous location and accessible by public transportation. The office closure should in no way suggest that clients would not receive services from other Broward County locations, specifically, Metro Traffic School in Delray Beach.
The assertion that Boca Bay failed to "clearly explain how it would assess and implement an improved service to a minority or special needs population" is inaccurate. The Application clearly indicated that Petitioner intends to offer
classes in Spanish and Portuguese. Neither Metro nor BDSC offer classes in Portuguese. Tucker-Pettway and McGlockton apparently ignored this improvement in services because Petitioner did not provide empirical data regarding the Portuguese speaking population of Broward County. Nothing in the application itself, the statute, or the rules would suggest that such information was necessary.
Form 77035 does not ask for information on how Petitioner would respond to any particular potential student disability, and the Department never addressed this alleged deficiency of the Application with Petitioner. Tucker-Pettway admitted she had no idea how either Metro or BDSC respond to ADA accommodation issues.
The references in this portion of the Denial Letters to Metro's "other Broward County locations, specifically Metro Traffic School in Delray Beach," would be comical if the consequences for Petitioner were not so serious. Clearly, the review team had no idea that Metro's Delray Beach location is in Palm Beach County in the 15th Judicial Circuit—not in Broward County or the 17th Judicial Circuit. In fact, Tucker-Pettway admitted the same at the final hearing and also testified that she had no information regarding the proximity of the Delray Beach location to any public transportation.
As such, it was clearly erroneous for the Department to rely on the availability of Metro's Palm Beach County location as a basis for denial of the Application while at the same time asserting that it was improper for Miller to include the possibility in his projections that residents of southern Palm Beach County would attend Petitioner's proposed location at the county line.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to sections 120.57(1) and 322.292(2).
The Department is the state agency responsible for licensing DUI programs and administering the same. § 322.292, Fla. Stat., and Fla. Admin. Code Ch. 15A-10. The regulatory scheme of the statute and rules not only establishes the procedures for initial licensure, but also contain requirements for DUI program course content, fees to be charged, etc.
Because the Department denied Petitioner's Application, Petitioner has the burden of establishing entitlement to the licensure sought in this proceeding by a preponderance of the evidence. See Dep't of Banking & Fin., Div.
of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla.
1987); § 120.57(1)(j), Fla. Stat.
A "preponderance" of the evidence means the greater weight of the evidence. Fireman's Fund Indem. Co. v. Perry, 5 So. 2d 862 (Fla. 1942).
The review of the Department's decision to deny the Application is a de novo proceeding, pursuant to section 120.57(1)(k). As such, the Department's determination on Petitioner's Application is not entitled to a presumption of correctness. See Dep't of Transp. v. J.W.C. Co., Inc., 396 So.
2d 778, 787 (Fla. 1st DCA 1981); Boca Raton Artificial Kidney Ctr., Inc. v. Fla. Dep't of HRS, 475 So. 2d 260, 262 (Fla. 1st
DCA 1985).
The decision of whether to approve a DUI Program license application must be based on a balanced consideration of all statutory and rule criteria. Dep't of HRS v. Johnson &
Johnson Home Healthcare, Inc., 477 So. 2d 261 (Fla. 1st DCA 1984); Balsam v. Dep't of HRS, 486 So. 2d 1341 (Fla. 1st DCA
1988). The weight to be given to each criterion is not fixed, but depends on the facts and circumstances of each case. Collier Med. Ctr., Inc. v. Dep't of HRS, 462 So. 2d 83 (Fla. 1st DCA
1985).
The Department approved Form 77035 as the application for licensure as a DUI program. Fla. Admin. Code R. 15A- 10.004(1)(a). In considering an application for DUI program licensure, the Department must determine whether improvements in
service may be derived from the operation of the DUI program and the number of clients currently served in the circuit. The Department must apply the criteria described above and as set forth in section 322.292(2)(c)2. and rule 15A-10.004(9).
To prevail in this proceeding, Petitioner must establish, by a preponderance of the evidence that the Application met all relevant criteria and demonstrated that an improvement in services may be derived from a new DUI program. Petitioner has met its burden.
As a preliminary matter, the Department shall, "after
consultation with the chief judge of the affected judicial circuit, establish requirements regarding the number of programs to be offered within a judicial circuit. Such requirements shall address the number of clients currently served in the circuit as well as improvements in service that may be derived from operation of an additional DUI program." § 322.292(1), Fla.
Stat., and Fla. Admin. Code R. 15A-10.004. (emphasis added).
Petitioner proved by a preponderance of the evidence that the Department violated section 322.292(1) by failing to consult with the Chief Judge of either the 17th or 15th Judicial Circuits. Even accepting the Department's interpretation that the only "affected" circuit is the circuit in which the proposed DUI program would be located, the credible evidence demonstrated that the Department did not consult with the Chief Judge of the
17th Judicial Circuit. The purported "consultation" was with a traffic court judge who stated that another DUI program "may not be necessary" and said "consultation" occurred after the issuance of the Denial Letters and notice to the Department of Petitioner's intent to contest the denial.
Petitioner's Application met all the required criteria, and it established that its location was approximately in the middle of the existing providers in the 15th and 17th Judicial Circuits, some 15 to 16 and 16 to 17 miles to the north and south, respectively. Both of those providers, BDSC and Metro, offered locations in essentially the same locations, in the same building in downtown Fort Lauderdale across from the main courthouse and in the same Lauderdale Lakes strip center adjacent to the Department's office. Neither office provided convenient service for residents of northern Broward County, let alone residents of southern Palm Beach County who might work or go to school in Broward County. Petitioner's location was also proximate to the North satellite courthouse, the Department's office on Military Trail and Hillsboro Boulevard, Interstate 95, and the Tri-Rail station. Petitioner's office location itself clearly provides an improvement in service, an increase in frequency of classes, and availability of locations over existing providers. The proximity of Petitioner's location to public transportation facilities was undisputed. Available public
transportation facilities were not known to the review team, let alone considered.
Petitioner demonstrated by a preponderance of the evidence that its proposed curriculum will bring value to a program that is very standardized. Petitioner's proposal enhances the statutorily mandated curriculum by incorporating the recommendations of the Emory Study to limit the length of class sessions to improve retention of the material. Petitioner's proposed curriculum, as discussed in the Application and the materials submitted in response to the request for clarification, includes the use of workbooks and testing to increase retention as well as working with students individually to improve success. The Department's review completely failed to consider whether these changes proposed by Petitioner might improve the service provided.
The Application demonstrates that Petitioner has the necessary facilities, equipment, readily available staff, management capability, and financial resources to be up and running within 45 days of license approval as required by statute.
The actions of the Department throughout the entire process, from Petitioner's initial requests for relevant DUI enrollment data and information maintained only by the
Department, to the actual review and denial of the Application, were in violation of the applicable statutes and rules.
The Department's representatives clearly failed to provide Petitioner, its attorney, and expert accurate, reliable, or timely data as to the number of persons who had historically attended DUI programs for the prior ten years in the 15th and 17th Judicial Circuits. Notwithstanding, Miller utilized that data, in part, to conservatively project that at least 939 persons would attend Petitioner's location upon licensure. No contrary evidence was presented to refute the projections of Miller, and there was no effort by the Department to independently evaluate those projections or make its own projection. They were incorrectly dismissed because the projections included the possibility, in accordance with the query of Form 77035 itself, and rule 15A-10.009(1), that prospective students, who work or go to school in Palm Beach County, might attend at Petitioner's location. Miller's demographic study and projections contained within the Application unmistakably supported approval of the Application.
Reliance in the Denial Letters on three years of purported "completions" data for Broward DUI programs at a given moment in time was inappropriate given the statutory and rule standards requiring a "historical trend" analysis of individuals "served."
The Department failed to evaluate the Application in accordance with the requirements of either section 322.292 or chapter 15A-10. Although Tucker-Pettway found the Application complied with all relevant statutory and rule requirements, the team ultimately concluded that there were various alleged reasons for denial. All of those reasons were clearly refuted by Petitioner by a preponderance of the evidence. The Department, by its own admission, undertook no substantive evaluation of the services provided by the existing programs of Metro or BDSC or whether Petitioner's proposed program presented any possible improvement in services.
It was improper for the Department to rely on the availability of Metro's Palm Beach County location as a basis for denial of the Application while at the same time asserting that it was improper for Miller to include the possibility in his projections that residents of southern Palm Beach County would attend Petitioner's proposed location at the county line.
Section 120.60(1), part of the Florida Administrative Procedures Act which governs licensing generally, states as
follows:
Upon receipt of a license application, an agency shall examine the application and, within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An agency may not deny a license for failure to
correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30- day period. (emphasis added).
The denial of the Application was, in part, predicated on Petitioner's alleged failure to identify specific "immediate individuals" available for employment, start-up capital on hand, and how it would meet ADA requirements. Nothing in the statute or rules requires the disclosure of such information. More importantly, the Department's denial violated section 120.60(1) by basing the denial on these purported omissions without first providing any notification to Petitioner within the 30-day period.
The Department's lack of expertise in the field of DUI application analysis was demonstrated by the fact that the initial Denial Letter, purportedly reviewed and vetted by the team prior to issuance, did not comply with the requirements of section 120.60 or chapter 15A-10, because it failed to include any administrative remedy provision. Only after Petitioner's attorney repeatedly inquired and complained did the Department acknowledge its error and issue the final Denial Letter.
The issuance of both Denial Letters also constituted a violation of the requirements of rule 15A-10.041(7), which require the Department to provide Petitioner with an opportunity to request a formal or informal administrative hearing to show
cause why the action should not be taken "prior to final [Department] action denying, suspending, or revoking a DUI program license."
Contrary to the Denial Letters, approval of the Application and grant of a DUI program license to Petitioner will improve service to residents in the 17th Judicial Circuit in and for Broward County, Florida, and will also improve service in the 15th Judicial Circuit in and for Palm Beach County, Florida.
The Department failed to properly assess any of these factors in the evaluation process. Petitioner demonstrated by a preponderance of the evidence that it met all relevant criteria of section 322.292 and chapter 15A-10.8/
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order consistent herewith and awarding Boca Bay DUI Program, Inc., a license to operate a DUI program in the 17th Judicial Circuit in and for Broward County, Florida, pursuant to section 322.292, Florida Statutes, and Florida Administrative Code Chapter 15A–10.
DONE AND ENTERED this 9th day of April, 2014, in Tallahassee, Leon County, Florida.
S
MARY LI CREASY
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2014.
ENDNOTES
1/ In order to prepare to open a DUI program, Nickerson also took a leave of absence from his job to devote 300 hours towards immersing himself in addiction counseling at the Fort Lauderdale Addiction Treatment Center and volunteered a minimum of ten hours per week there. He also volunteered at Delray Beach Recovery Center as a group leader for life skills, helping young men and women successfully reintegrate into society. This information was provided to the Department in the cover letter forwarding Petitioner's Application.
2/ For example, in Exhibit B9, an email from Grosz to Miller explaining data pulled and provided by Grosz in August/September 2012, the total number of completions for Broward County in 2011 is reported as 1,619. However,
Exhibit C1, which reflects data provided to Michael McGlockton by Grosz on January 29, 2013, and served as a basis for the Application denial, reports total completions for Broward County in 2011 as 1,542.
When asked how "completions" for 2011 could diminish from 1,619 in August 2012 to 1,542 in January 2013, Grosz explained that the difference reflects the number of people who come off the driver license database because they moved out of state, moved out of
Broward County, or died. It was not clear to Petitioner until the final hearing that the figures provided to Petitioner by Grosz did not reflect exactly how many people attended any particular DUI Program or in what county someone who resided in Broward and was arrested in Broward actually attended a DUI program.
It should not be implied that Grosz intentionally reported irrelevant information or manipulated the data. To the contrary, the evidence reflects that Grosz did his best to respond to the inquiries regarding the data. Unfortunately, the driver license data, which fluctuates on a day-to-day basis, was the only information that Grosz believed he had available and this was not explained to Petitioner. It appears this problem with the data was also not known by McGlockton or Tucker-Pettway who relied on it as part of the decision to deny the Application.
3/ At the final hearing, Grosz concurred that such data was not available from the Department's database. However, evidence provided at hearing showed that the Department received attendance figures from BDSC in response to a request from Jann Tucker-Pettway that were not shared with Petitioner. See Exhibit B31. Further, enrollment figures were, in fact, available to the Department by DUI programs because each program collects a $15.00 assessment fee per student which is transmitted to the Department. See Exhibit B58. These figures were not provided
in response to Petitioner's public records request until November 2013, only after the denial of the Application and during the preparation for the final hearing.
4/ Though he denied use of the word "backlog," Grosz conceded that a substantial universe of people existed who had over the last ten years failed to "complete" their DUI program requirements.
5/ The "Emory Study" which was referenced in the Application in Exhibit H, is a study conducted by Frederick A. Marstaller, Ph.D., in 1997. The Emory Study was commissioned by the Department to evaluate its existing DUI program curriculum and format. Among the recommendations of the Emory Study were to keep class sessions limited to a maximum of three hours and to incorporate testing.
6/ In fact, both Metro and BDSC objected to Petitioner's Application. For a short time, BDSC was an intervenor, and principals of both BDSC and Metro attended at least part of the final hearing in this case.
7/ McGlockton testified that he was referred by the Chief Judge to Traffic Court, Judge Mary Rudd Robinson, for input on the need for another DUI program in Broward County. Although the statute does not provide for consultation with the designee of the Chief Judge, McGlockton testified that he spoke to Judge Robinson in December 2012 and was told another DUI program would "dilute" the business for the existing providers and there was no need for another DUI program. Notably, rule 15A-10.004(1)(c) mandates, "The program approval process shall include documentation of the consultation between the Department and the chief judge of the judicial circuit in which the program is to be located."
This testimony was directly contradicted by McGlockton's pre- hearing deposition testimony that a conversation with Judge Robinson took place in February or early March (after the decision to deny the Application and after the Department knew Petitioner was contesting the denial) and Joint Exhibit 9, an email from Judge Robinson's assistant dated April 3, 2013, which purports to memorialize a conversation between McGlockton and Judge Robinson during the last week in March in which it is relayed that, "At this time, it seems as though the two current companies are handling their clientele and a need for another one may not be necessary." McGlockton's testimony at hearing was also contradicted by the application checklist prepared by
Tucker-Pettway that reflects no conversation with Judge Robinson. Further, the Denial Letter fails to make any reference to consultation with Judge Robinson. Accordingly, the undersigned finds McGlockton's testimony not credible.
8/ Section 322.292(c)(5) provides minimum criteria for any DUI program. Because the Department did not base its denial of the Application upon any alleged failure to meet these minimum criteria, they are not discussed in detail herein. However, Petitioner demonstrated by a preponderance of the evidence that it met all of the minimum criteria.
COPIES FURNISHED:
Jennifer Clark, Agency Clerk Department of Highway Safety
and Motor Vehicles
Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61
Tallahassee, Florida 32399
William G. Salim, Jr., Esquire Moskowitz, Mandell, Salim
and Simowitz P.A.
800 Corporate Drive, Suite 500 Fort Lauderdale, Florida 33334
Nicholas A. Merlin, Esquire Department of Highway Safety
and Motor Vehicles
2900 Apalachee Parkway, Suite A-432 Tallahassee, Florida 32399-1050
Julie L. Jones, Executive Director Department of Highway Safety
and Motor Vehicles
Neil Kirkman Building, Room B-443 2900 Apalachee Parkway
Tallahassee, Florida 32399-0500
Steve Hurm, General Counsel Department of Highway Safety
and Motor Vehicles
Neil Kirkman Building, Room A-432 2900 Apalachee Parkway
Tallahassee, Florida 32399-0500
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 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.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 24, 2014 | Agency Final Order | |
| Apr. 09, 2014 | Recommended Order | Petitioner demonstrated by a preponderance of the evidence that its application met all applicable criteria. Recommend awarding Petitioner a license to operate a DUI program in the 17th Judicial Circuit. |
