STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS V. INFANTINO, SR., )

and his wife, FRANCES )

INFANTINO, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6637RU

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on January 22, 1990 in Gainesville, Florida.

APPEARANCES

For Petitioner: Thomas V. Infantino, Esquire

Post Office Drawer 30 Winter Park, Florida 32609

For Respondent: Arthur R. Shell, Esquire

1000 Northeast 16th Avenue Gainesville, Florida 32601

STATEMENT OF THE ISSUES

Whether Respondent's Leasing Manual HRS M 70-1 is a rule and, if so, is it an invalid exercise of delegated legislative authority?

PRELIMINARY STATEMENT

The Respondent, Department of Health and Rehabilitative Services (Department) caused an Invitation To Bid (ITB) For Existing Facility to be advertised regarding Lease No. 590:2029 for office space in the Inverness, Florida service area of the Department's District Three. Petitioners presently lease space to the Department in the Inverness, Florida service area of District Three. The Petitioners timely filed a notice of protest in regard to the specification of the ITB for Lease No. 590:2029 which is the subject of Infantino, et ux v. Department of Health and Rehabilitative Services, Case No.

89-60I7BID. By Petition dated November 28, 1989 and filed with the Division of Administrative Hearings on December 1, 1989, Petitioners contend that the Department's Leasing Manual HRS M 70-1 is a rule that has not been promulgated in accordance with law and, therefore, is an invalid exercise of delegated legislative authority.

The Petition was filed pursuant to Section 120.56, Florida Statutes. By stipulation of the parties the hearing was scheduled to commence more than thirty days after the date of the Order of Assignment and, although not consolidated with Infantino, et ux v. Department of Health and Rehabilitative Services, Case no. 89-6017BID was scheduled for hearing on the same date.

In support of their contention, the Petitioners presented the testimony of Thomas V. Infantino, Sr., Janice D. Johnson, Mark J. Williams, Donald J. Cerlanek, Thomas C. Little, Jr., Lois McCallum and Mary K. Hawks. Petitioners' exhibit 1 through 10 were received into evidence. Respondent did not call any witnesses. The deposition testimony of Mark J. William and George Smith were received into evidence as Joint Exhibit 1 and 2, respectively.

A transcript of the proceeding was filed with the Division of Administrative Hearings February 1, 1990. The parties having stipulated to the late filing of their respective Proposed Findings of Fact and Conclusions of Law Order waived the requirement of filing a Final Order within thirty days after the hearing in accordance with Section 120.56(3), Florida Statutes. The parties, in accordance with the stipulation, timely submitted their respective Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed findings of fact has been made as reflected in the Appendix to the Final Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The Department's Leasing Manual HRS M 70-1 (Manual) sets out the procedure to be followed when the Department is seeking to lease space of 2,000 square feet or more in privately owned buildings. Within this manual are the forms to be utilized for this purpose and, among other forms, is an Invitation to Bid (ITB) For Existing Facilities packet that contains a Bid Submittal Form (BSF) and, within the BSF is a page entitled Evaluation Criteria.

   
   

2. The Department followed the procedure set forth in the manual in advertising for competitive bids on Lease No. 590:2029 for office space in Inverness, Florida service area of District Three and, in doing so, used the ITB For Existing Facilities packet that contained the BSF with the Evaluation Criteria page.

   
   

3. The BSF, including the Evaluation Criteria page, is a slightly modified version of the Department of General Services' (DGS) Request For Proposal Submittal Form - BPM 4136, incorporated by reference in Rule 13M-1.015(3)(e), Florida Administrative Code, as a suggested format.

   
   

4. The Evaluation Criteria page of the Department's BSF contains nine of the eleven evaluation criteria set forth on the evaluation criteria page of the BPM 4136, but does not place any limit on the weight of award factor as does BPM 4136 on two of the same criteria used by the Department.

   
   

5. Both the BSF and BPM 4136 are used in bidding for space in existing facilities and, therefore, require a scaled floor plan showing present configuration, with measurements that equate to the net rentable square footage using the Standard Method of Space Measurement.

6. The BSF does not attach a "floor plan for suggested configuration of offices and rooms" as does the BPM 4136 but does provide the number, types and sizes of rooms to be placed in the existing facility. Both forms leave the final configuration of the floor plan to the successful bidder and the lessee. The Department's reasoning for not including a "suggested floor plan" is that this may reduce the number of prospective bidders due to the varied configuration of existing facilities in the bid area.

   
   

7. In accordance with the procedure set forth in the Manual an Evaluation Committee (Committee) was appointed to determine, among other things, the award factor (weight) to be placed on the nine evaluation criteria set forth on the Evaluation Criteria page of the BSF. The Committee determined the significance of the nine criteria on the Evaluation page to the Department's needs in regard to Lease No. 590:2029 and awarded a weight factor in accordance with the significance of the criteria. Those criteria most significant to the Department's needs received the highest weight. These award factors were added to the Evaluation page of the BSF at the time the ITB was advertised.

   
   

8. The procedure and the forms set forth in the Manual and used by the Department, including the procedure followed by the Evaluation Committee, in putting together the ITB for Lease No. 590:2029 comports substantially with all substantive provisions of Rule 13M-1, Florida Administrative Code, and more specifically Rule 13M-1.015, Florida Administrative Code, adopted by DGS pursuant to Section 255.249(2), Florida Statutes. The differences, such as they are, are not substantial, nor is there any extrinsic or intrinsic divergence from the substance of the rule such as to mislead any potential bidder who sought to address the ITB.

   
   

9. The Manual, including the ITB and BSF, sets forth the Department's policy and describes the procedure to be followed by the Department, including each Evaluation Committee selected, and all prospective bidders, in its leasing practices when the Department seeks to lease 2000 square feet of office space or more in privately owned buildings and, although the Manual has been reduced to writing, it has not been promulgated or adopted as a rule.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.56, Florida Statutes.

    
    

11. In accordance with the authority granted under Section 255.249(2), Florida Statutes, DGS promulgated Rule 13M-1, Florida Administrative Code, and, more specifically, Rule 13M-1.015, Florida Administrative Code, setting out the "procedure for soliciting and accepting competitive proposals for leased space of 2,000 square feet or more in privately owned buildings" and "for evaluating the proposals received", as required by Section 255.249(2)(b), Florida Statutes.

    
    

12. Rule 13M-1.015(3)(a), Florida Administrative Code, provides for the agency soliciting the bid to draw the specification "in general terms" so as to "afford each prospective lessor interested in submitting a proposal, knowledge of the agency's space requirements" and, to structure the specifications so that no "specific location or lessor" is favored, whereas Rule 13M-1015(3)(b), Florida Administrative Code, sets forth certain specifications that should be provided to each prospective bidder which includes "an appropriate floor plan of space needed showing partitioning and other physical requirements".

13. Rule 13M-1.015(5)(b), Florida Administrative Code, requires the "user agency, in conjunction with preparing specifications", to "develop weighted evaluation criteria", with the "criteria item most significant to the user agency's needs" bearing the "highest weight".

    
    

14. Section 255.25(2)(c), Florida Statutes, requires "each state agency" to "develop procedures and adopt rules to insure that the leasing practices of that agency are in substantial compliance with the rules adopted" by DGS pursuant to specific sections of the statutes.

    
    

15. The Petitioners have the burden to prove the allegation made. Balino

    1. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977). The Petitioners have sustained their burden of proof in that they have shown that the Department has a "policy" (Manual) which it consistently applied when its seeks to lease 2000 square feet or more of office space in privately owned buildings and, that the policy is a "rule" based upon the plain reading of Section 120.52(16), Florida Statutes, which defines "Rule" as an "agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule . .

       
       

16. The Department's admitted failure to promulgate this policy as a rule is not fatal to its application of that policy on a case by case basis. Agencies are given the choice of properly promulgating policies as rules and applying them with the force and effect of law, or of fully explicating those policies and exposing them to challenge every time they are applied in an adjudicatory procedure. McDonald v. Department of Banking and Finance, 346 So.2d 569 (1 DCA Fla. 1977); Gulf Coast Health Service of Florida, Inc. v. Department of Health and Rehabilitative Services, 513 So.2d 704 (1 DCA Fla.

    1987). The opportunity for exposure and challenge to the policy is available in a Section 120.57(1), Florida Statutes, proceeding, in lieu of the Section 120.54, Florida Statutes, rulemaking process.

    
    

17. This is what transpired in the Section 120.57(1), Florida Statutes, challenge to that policy by Thomas V. Infantino, et ux v. Department of Health and Rehabilitative Services, Case No. 89-6017BID.

Based upon the foregoing Findings Of Fact and Conclusions of Law, it is ORDERED that Respondent, Department of Health and Rehabilitative Services'

policy (Manual) regarding the procedures to be followed in its leasing practices when seeking to lease 2000 square feet or more of office space in privately owned buildings is invalid as a rule for failure to promulgate pursuant to Section 120.54, Florida Statutes.

DONE and ORDERED this 1st day of October, 1990, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1990.

APPENDIX TO THE FINAL ORDER IN CASE NO. 89-6637RU

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. - 2. Adopted in Findings of Fact 1, 2 and 3, except that the correct cite for the rule is 13M-1.015(3) Florida Administrative Code.

1. Adopted in Findings of Fact 4, 5 and 6, with the exception of 3.A., which is a restatement of testimony and not stated as a Finding of Fact, otherwise not material to the determination of the rule challenge.

2. - 6. Restatement of testimony and not stated as a finding of fact, otherwise not material or relevant to the determination of rule challenge.

7. - 8. Adopted generally in Finding of Fact 6 and 7.

9. Adopted in Finding of Fact 6.

10 - 12. Restatement of testimony and not stated as a Finding of Fact, otherwise not material or relevant to the determination of the rule challenge.

13 - 14. Adopted in Finding of Fact 9, otherwise not material or relevant to the determination of the rule challenge.

1. Restatement of testimony and not stated as a Finding of Fact, otherwise not material or relevant to the determination of the rule challenge.

2. Adopted generally in Findings of Fact 7 and 8.

Specific Rulings on Proposed Findings of Fact Submitted by the Respondent

1 - 22. Other than Proposed Findings of Fact 10, 13, 17 and 18 which are adopted generally in Findings of Fact 6, 4, 7 and 6, respectively, the Respondent's Proposed Findings of Fact ace not material or relevant to the determination of the rule challenge.

COPIES FURNISHED:

Thomas V. Infantino, Esquire Post Office Drawer 30

Winter Park, FL 32790

Arthur R. Shell, Jr., Esquire 1000 Northeast 16th Avenue Gainesville, FL 32609

Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Linda Harris, General Counsel Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 89-006637RU

Orders for Case No: 89-006637RU