The Issue Whether Respondent's intended award of a contract to Intervenor, pursuant to Invitation to Negotiate 024-12 (ITN), is contrary to Respondent's governing statutes, Respondent's rules and policies, or the specifications of the ITN?
Findings Of Fact Petitioner is a state agency authorized to enter into contracts for commodities and services subject to the procurement requirements of section 287.057, Florida Statutes [2011].1/ On April 17, 2012, the Department released the ITN which sought proposals to provide an ADLTS. The Department received and evaluated responses to the ITN from three vendors, including MorphoTrust and STS. On May 15, 2012, the Department issued Addendum 1 to the ITN, which answered questions vendors submitted regarding the ITN and replaced pages 31, 39, and 40 of the ITN. After completion of the first stage of [the] process of contractor selection where the Department evaluated the Statement of Qualification and Services Offered (SQSO) submitted by the vendors, the Department released the results of the initial evaluation process and proceeded to enter into negotiations with MorphoTrust and STS. The Department conducted ITN negotiation meetings with the representatives of MorphoTrust on July 10, 2012, and the representatives of STS on July 12, 2012. On July 18, 2012, the Department issued Addendum 2 to the ITN, which replaced pages 16, 23, 40, and 42. On July 26, 2012, the Department issued further instructions to MorphoTrust and STS, including a request for their [BAFO]. At this time, the Department issued Addendum 3 to the ITN, which replaced pages 15, 40 and 42. On July 31, [2012], the Department issued Addendum 4 to the ITN, which replaced page 16 of the ITN. MorphoTrust did not protest the terms, conditions, and specifications contained in the ITN, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract within 72 hours of the issuance of the ITN or any addendums thereto. On August 10, 2012, the evaluation team held a public meeting to evaluate the BAFOs submitted by MorphoTrust and STS. On August 13, 2012, the Department issued its intent to award the ADLTS contract to STS pursuant to the ITN. On August 16, 2012, MorphoTrust submitted its notice of intent to protest the intent to award the ADLTS contract to STS. On August 27, 2012, MorphoTrust filed its Formal Written Protest and Petition for Administrative Hearing. Section 1.1 of the ITN provides as follows: The Department of Highway Safety and Motor Vehicles, hereinafter called the Department, requests written proposals be submitted for an [ADLTS], which is to be provided at no cost to the Department. The [DHSMV] manages Florida's driver licensing program. Florida law requires a first-time driver to pass knowledge and skills exams prior to issuance of a driver license. The Department seeks to improve the integrity and efficiency of its licensing system by selecting a Contractor to provide a Driver License Testing System for use in State Driver License Offices, Tax Collector Offices and by Third-Party Test Administrators. Section 3.1 of the ITN provides as follows: The [DHSMV] manages Florida's driver licensing program. Florida law requires a first-time driver to pass knowledge and skills exams prior to issuance of a driver license. The knowledge and skills exams are designed to protect the public from hazards posed by unqualified motor vehicle operators. There are two (2) basic types of licenses--operator (Class E) and commercial (Classes A, B, and C). In Florida, Class E driver licenses are issued to drivers operating vehicles less than 26,001 pounds. Applicants must pass two (2) knowledge exams--road signs and road rules in order to obtain a learner's permit and must pass a driving skills exam to become fully licensed. The Department uses an aging web-based automated testing system for the administration of both Class E and commercial driver license knowledge exams in its fifty four (54) State Driver License Offices. In addition, one hundred and fifty six (156) county Tax Collector Offices in fifty two (52) counties also use the Department's automated testing system. Skills exams administered by State and Tax Collector Examiners are documented by hand, with pass/fail scores manually determined and entered into the driver license issuance system. In addition, six (6) Third-Party Contractors administer Class E knowledge exams online. The Department maintains the test databank and has established procedures for Third-Party Administrators to retrieve randomly generated test questions per applicant via web service. Currently, all operator skills exams are administered through State or Tax Collector Offices, with the exception of any teenager who completes a driver education program through their local high school. Driver education graduates are not required to complete additional skills exams. Driver education is currently offered in approximately fifty (50) of the sixty seven (67) school districts and a few private high schools. The majority of Commercial Driver License (CDL) skills exams are administered by third-parties, with less than ten percent (10%) of CDL skills exams administered by State Examiners. Over the next several years, we anticipate the following changes to our business environment. By 2015, all but three (3) of the sixty seven (67) counties will receive driver license services via the Tax Collectors. The Department will maintain driver license offices only in Broward, Miami-Dade, and Volusia counties; approximately twenty-six percent (26%) of all driver license transactions are conducted in these three (3) counties. More third-parties will offer Class E knowledge exams online. DHSMV started this program in July 2011. Seven (7) providers offer exams online now, but several others have applied. Some third-parties will offer Class E knowledge exams in a proctored setting. This option has been on the table since July 2011 and one vendor currently offers proctored exams. DHSMV will provide an opportunity for third-parties to administer Class E driving skills exams. The Department has delayed implementation of this opportunity until the conclusion of this ITN. DHSMV will expect third-parties administering Class E driving skills exams to use the system sought here, at their own expense. The Department will encourage Third- party administrators of CDL driving skills exams to use the system sought here, at their own expense. While we do not expect to mandate the use of this system for existing CDL Third-party administrations, there is a possibility that federal mandates may eventually recommend and/or require it. Section 3.2 of the ITN provides as follows: The Department seeks to improve the integrity and efficiency of its licensing system by selecting a Contractor to provide a NO-COST SOLUTION to the Department for a driver license testing system for use in State Driver License Offices, Tax Collector Offices and by Third-Party Test Administrators. This would include the system, web application and system maintenance, at no-cost to the Department. Third Party Administrators must be provided a consistent methodology for accessing and consuming the web-based tests questions and answers from the Awarded Contractor. The system must consist of: A web-based application for the administration of Class A, B, C, and E driver license knowledge exams in driver license and Tax Collector Offices. The Prospective Contractor must agree to provide this at no cost to the Department. A web-based application for the administration of Class E driver license road signs and road rules exams by third-parties. This system must also be accessible by Driver Education Licensing and Assistance Program (DELAP) administrators at no cost to the School Districts or the Department. A knowledge bank of at least five-hundred (500) questions for Class E road signs and road rules, plus CDL knowledge exam questions meeting American Association of Motor Vehicle Administrators (AAMVA) specifications. This must be provided at no-cost to the Department. A tablet-based solution for the administration of Class E driver license skills exams. Bonus points will be given to Prospective Contractors who provide this solution at no cost to the State for use by State and Tax Collector Offices. All Third-Party Administrators of Class E driver license skills exams will be required to adopt this solution. Third-Party Administrators can be charged for this solution. A tablet-based solution for the administration of Class A, B and C driver license skills exams. Third-party CDL skills exam administrators will not be mandated to adopt this solution at this time, but will be encouraged to do so. Section 3.3 of the ITN provides as follows: [ADLTS] is a centrally administered testing system that supports testing centers in State and Tax Collector Driver License Offices located throughout Florida. The purpose of the system is to perform driver license testing and other testing in a user-friendly Intranet and Extranet environment. The test information is stored centrally in Tallahassee offices of [DHSMV]. The system is a web-based system that is used to display and control all driver license testing, Administrative, Supervisor, Examiner and Extranet functions. The administrators of the ADLTS system control user accounts, testing office information, creating new exam categories, creating new questions, retiring questions and printing reports. In July 2011, the Department implemented a new third-party test administration program for Class E knowledge exams. The Department maintains the test databank and has established procedures for Third-Party Test Administrators to retrieve randomly generated test questions per applicant via web service. Any student who fails an exam is given the opportunity to retest with the Third Party Administrator two (2) additional times for each exam type (road rules and road signs). The Third Party Administrator is required to collect a statutory fee of ten dollars ($10.00) for each retest that is remitted to DHSMV electronically. Each exam is assigned a unique identifying number for tracking and auditing purposes. As part of this program, the opportunity exists for third-parties to administer the driver license knowledge exams in-person in a proctored setting. The Department does not currently provide a user interface application for third-party testers who administer exams on-line or in a proctored setting. Anyone wishing to offer these services must develop their own application to access the Department's web services. We have delayed implementation of this portion of the program until completion of this ITN, as we anticipate mandating that third-party administrators of Class E driving skills exams use the tablet testing system sought herein, at their own expense. All contractual language and current business rules for the Third Party Administration of Class E knowledge exams are available at http://www.flhsmv.gov/ddl/tpdlts.html. Approximately fifty (50) of the sixty seven (67) Florida school districts and several private high schools conduct both Class E knowledge and road tests for their enrolled driver education students through the Driver Education Licensing and Assistance Program (DELAP). The tests administered are the same as the Class E licensing tests given in driver license offices by Department and Tax Collector DL examiners. However, DELAP testers give the knowledge tests on paper forms generated by ADLTS, as they do not have direct access to the Department's electronic testing system. Commercial driver licensing (CDL) in-vehicle skills tests are conducted primarily by about two-hundred and thirty (230) third party businesses and agencies that have the necessary resources. Testing authority is granted by the Department through contracts. Some charge a fee for their services while others test only their own employees and do not. Test procedures are prescribed by federal regulation, following the AAMVA 2005 Model CDL Testing System. Section 4.1 of the ITN provides as follows: The Awarded Contractor will provide a web-based driver license testing system that will be used by Driver License Examiners in offices operated by the Department and Tax Collector Offices at no cost to the Department or County Tax Collectors. In addition, the Awarded Contractor must make available the same web-based solution for purchase by Third-Party Test Administrators. The testing system will include administrative and reporting functions. The awarded Contractor must also provide an option for purchase of a mobile tablet-based hardware/software solution for the administration of driving skills exams that will update the central testing database. The mobile solution will incorporate Global Positioning System (GPS) tracking technology for driving exam routes and time. The commercial driving skills exams must be generated in accordance with Federal Motor Carrier Safety Administration regulations and provide for subsequent updates upon release by AAMVA. Bonus points will be given to Prospective Contractors that offer this solution at no-cost to the Department. The Awarded Contractor will provide a minimum five-hundred (500) question databank of road signs and road rules Class E exam questions, plus CDL knowledge exam questions meeting American Association of Motor Vehicle Administrators (AAMVA) specifications that comports with Florida traffic and licensing laws. The Awarded Contractor may use the Department's existing bank of questions as the basis for the new databank. Currently, road signs and road rules exams are administered as two (2), twenty (20) question tests, but the Department will consider proposals to modify this testing model. For example, the Department would consider proposals for one (1) Class E knowledge exam that including both road rules and road signs questions and increases the total number of questions asked. Currently, approximately ninety five percent (95%) of applicants pass the road signs exam on their first attempt. Approximately forty eight percent (48%) of applicants pass the road rules exam on their first attempt. Please refer to the attached AAMVA Guidelines (Attachment VII) for knowledge and Skill Test Development. The Awarded Contractor is responsible for project planning, coordination, implementation, installation and maintenance, as applicable and must provide the name and qualification of the proposed project manager as part of the bid response. Any changes to the project manager after the ITN is awarded must be requested through the Department in writing. The Department will designate a project manager that will be the primary contact for the ITN. The Awarded Contractor will have access to personal identification data protected by the Florida and federal laws, including the Driver's Privacy Protection Act. The Prospective Contractor must describe in the bid response the security protocols related to employee background checks, training and monitoring. Section 4.2.8 of the ITN provides, in part, that "[a]t implementation, the system must provide replacements for the current test types which include[:] Class E General Knowledge, Road Signs . . . [and] Class E skill [testing]. " Section 4.2.13 of the ITN provides, in part, as follows: With the [BAFO], the Prospective Contractor must submit a price schedule to include a description of each item available for purchase and a purchase or use price. The pricing model may be per item, per license, or per use. While this will be a no-cost contract to the Department and Tax Collectors, price to third-parties will be considered during the evaluation process. An advertising plan must also be submitted by Prospective Contractors. (emphasis added). Section 8.1 of the ITN provides as follows: The Department will appoint an Evaluation Committee. The committee shall complete the evaluation of all valid proposals, in accordance with the criteria set forth in this section. Award will be to the highest scoring proposal, considering the technical proposal scoring and all costs for the five- year contract period, evaluated as described in Section 8.19 of this solicitation. (emphasis added). The reference in section 8.1 of the ITN to "Section 8.19" should be to "Section 8.9." The ITN does not contain a section 8.19. Section 8.9 of the ITN provides as follows: Price will be evaluated by the present value methodology required by Section 287.0572, Florida Statutes, and Rule 60A-1.063, Florida Administrative Code, to determine the lowest cost proposal. The lowest cost proposal will be awarded 15 points. Lowest total cost (LC) divided by proposal being considered (PC) times maximum points score (15) equals points awarded. Formula: LC/PC x 15=score. Section 1.5 of the ITN provides as follows, The Department has established certain mandatory requirements which must be included as part of any proposal. The use of the terms "shall," "must," or "will" (except to indicate simple futurity) in this solicitation indicates a mandatory requirement or condition. The words "should" or "may" in this solicitation indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature will not itself cause rejection of a proposal. Exception: This is a negotiation process. The DHSMV reserves the right to accept alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results, without addendum to this ITN. Such alternative(s) should be clearly identified by the Respondent firm in its proposal. The evaluation criteria set forth herein, and their relative weights, are also subject to modification in the negotiation process. Section 1.9 of the ITN provides, in part, that "[a]ny addenda or written answers supplied by the Department Procurement Officer to participating proposer's written questions become part of this solicitation." Section 1.34 of the ITN provides as follows: The contract resulting from this solicitation process shall consist solely of the purchase order issued by the Department to the successful proposer, this solicitation and any addenda thereto, and the proposal, including any license/use agreement submitted by the successful proposer as part of its proposal except to the extent of any conflict with Florida law or terms and conditions of the proposal. In the event of a conflict among any of the documents referenced herein, the following priority shall apply, with the language of each listed document governing the documents listed below it: The purchase order Any addenda to the solicitation The solicitation The awarded proposal including any agreements. Any agreements which include, but are not limited to installation, licensing, maintenance, software, etc. must be submitted with the proposal and agreed to by the Department during negotiations. Attachment I to the ITN is "State of Florida PUR 1000, General Contract Conditions (PUR 1000)." PUR 1000 is incorporated into the ITN by reference. PUR 1000, paragraph 4.(e), is entitled "Equitable Adjustment." This paragraph provides as follows: The Customer may, in its sole discretion, make an equitable adjustment in the Contract terms or pricing if pricing or availability of supply is affected by extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the Contractor's control, (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or availability of supply is substantial, and (4) the volatility so affects the Contractor that continued performance of the Contract would result in a substantial loss. Paragraph 1.(b) of PUR 1000 defines "Customer" to mean: [T]he State agency or other entity identified in a contract as the party to receive commodities or contractual services pursuant to a contract or that orders commodities or contractual services via purchase order or other contractual instrument from the Contractor under the Contract. The "Customer" may also be the "Buyer" as defined in the PUR 1001 if it meets the definition of both terms. Question 19, Addendum 1, and the answer related thereto read as follows: Question 19: "Bonus points will be given to Prospective Contractors that offer this solution at no-cost to the Department." Please define if "the Department" includes the Tax Collectors. If not, may the mobile skills test solution be sold to the Tax Collectors as well as the Third-Party Administrators? Answer to Question 19: Bonus points may be given up to a maximum amount of fifteen (15) points. The maximum amount of bonus points will be given if the mobile skills test solution is provided to both the Department and its Tax Collector agents at no cost. A lesser amount of points will be given if the solution is provided to the Department at no cost, and no bonus points will be given if the solution is not provided at no-cost. Question 37 from Addendum 1, and the response thereto, provide as follows: Question 37: Where is the Supplemental Cost Sheet shown in the ITN? Answer to Question 37: Please ignore the Supplemental Cost Sheet. There is only a Price Proposal Form (Section 9.0). Please utilize additional space in a Word, Excel or PDF format for pricing structure, if needed. Please seem amended pages 39 and 40 attached to this addendum. Question 39 from Addendum 1, and the response thereto, provide as follows: Question 39: May the awarded contractor charge a standard user/license fee to each third party administrator for the knowledge test and perhaps the eventual tablet skills test? Answer to Question 39: Yes, the Awarded Contractor may charge a standard user/license fee to each Third Party Administrator. Question 82 from Addendum 1, and the response thereto, provide as follows: Question 82: In regards to the Pricing Proposal Form on page 42 of the ITN, can this form be modified to better present our pricing strategy to the State of Florida? Answer to Question 82: Yes, this form can be modified utilizing Word, Excel or PDF to format a proposed pricing structure. Addendum 2 added to Section 3.2, subsection 4, the underlined language as noted: A tablet-based solution for the administration of Class E driver license skills exams. Bonus points will be given to Prospective Contractors who provide this solution at no cost to the State for use by State and Tax Collector Offices. If the tablet-based solution has a cost to the State and Tax Collector Offices associated with it, the price from Section 9.0 "Price Proposal" shall be utilized. All Third-Party Administrators of Class E driver license skills exams will be required to adopt this solution. Third-Party Administrators can be charged for this solution. Addendum 2 amended Section 9.0, which sets forth the Price Proposal Form to read as follows: Tablet Cost, Per Tablet For Third Party Administrator A $ Annual Cost to Access System for Third Party Administrator, Per Administrator B $ Total Cost A+B=C $ Note: Price Proposal Scoring is only calculated from a per-unit cost. The quantities will vary, based on need. Addendum 3 established the final Price Proposal Form as follows: Initial Term Tablet Cost, Per Tablet for Third Party Administrator A $ Cost To Access System for Third Party Administrator B $ Additional Features C $ Initial Term Total Cost A+B+C=D $ Renewal Term Tablet Cost, Per Tablet for Third Party Administrator E $ Cost To Access System for Third Party Administrator, Per Test F $ Additional Features G $ Renewal Term Total Cost E+F+G=H $ Total Cost D+H=I $ Note: The quantities will vary based on need. Additional Features can include any startup fees, maintenance or system enhancements. Please use additional space, if needed, to expand on Additional Features. Addendum 4 removed from the ITN the requirement that the successful proposer supply a damages bond. Deletion of Damages Bond Requirement Section 2.5 of the ITN, labeled "DAMAGES BOND," as originally set forth provided as follows: The proposer shall supply to the Department with the performance bond a bond for the payment of any liquidated damages as may become due and payable to the Department arising hereunder, in the face amount of 5% of the total cost for the project. The bond must be renewed annually no later than fourteen (14) business days prior to the beginning of the next contract or renewal period (if renewed). For the second and subsequent contract and renewal periods, the renewal bond amount must equal or exceed five percent (5%) of the total price amount proposed for the corresponding contract or renewal period in the proposer's proposal. Soon after issuance of the ITN, companies that were considering submitting a proposal were given the opportunity to tender questions regarding the ITN to the Department. One of the questions submitted by MorphoTrust in response to the ITN states that "[g]iven the unique model that the state has requested in the ITN, would the state be willing to negotiate [an] alternative liquidated damage clause to better reflect the proposed solution?" The Department's response to the inquiry stated that this issue could "be discussed during the negotiation phase of the ITN process." Intervenor STS, in response to the ITN, also posed a question to the Department regarding the bond requirements. STS's question and the Department's response thereto provide as follows: Question: In regards to the bonds, what value/cost is the bond supposed to represent? Is this value the price that the State of Florida is required to pay to the contractor for the five year contract period? Or, is the value the total expense that the contractor has invested in the contract for the five year period? Response: The bonds must be in the amount [of] five percent (5%) of the total pricing structure proposed by the Prospective Contractor. As previously indicated, the Department, during the period July 9 through 12, 2012, met with representatives from MorphoTrust and STS to negotiate the proposal and view demonstrations. During the negotiation and demonstration sessions, representatives from MorphoTrust and STS informed the Department of their concerns about the apparent redundancy of the ITN requirement to have both a performance bond and a damages bond. According to MorphoTrust, the Department agreed to review the performance and damages bonding requirements. Addendum 2 was issued by the Department and this addendum, among other things, changed section 2.5, Damages Bond, of the ITN to read as follows: The proposer shall supply to the Department with the performance bond a bond for the payment of any liquidated damages as may become due and payable to the Department arising hereunder, in the face amount of five hundred thousand dollars ($500,000.00). The bond must be renewed annually, no later than fourteen (14) business days prior to the beginning of the next contract or renewal period (if renewed). For the second and subsequent contract and renewal periods, the renewal bond amount must equal five hundred thousand dollars ($500,000.00). On July 24, 2012, Jim Sodero, on behalf of STS, sent an email to Jon Kosberg to reiterate his concerns about the bonding requirements. The email provides as follows: Hi Jon, Thank you very much for the opportunity to bid and demonstrate our product. We have reviewed your request for a BAFO, and are currently exploring our options. Unfortunately, as we had mentioned during our demonstration, it is very likely your bond requirements prevent us from proceeding further. We are once again looking for a bond company that will cover this 'no cost' proposal, but are having great difficulty. At the meeting you thought you might be able to offer the names of some companies that have done this in the past. We would very much appreciate any information you can provide. Again, the bonding company's main concerns are that the State is not accepting a risk correspondent to the value of the bond. There is some risk no question, but it is STS that will assume the greater risk of investing over 2 million dollars in equipment and manpower with the hope of financial recovery over a long term contract. They feel, and we have to agree, that the hardware investment itself should guarantee that this is a contract that we will not walk away from and will service to the best of our abilities. Another way of looking at this is to remember that STS proposed a "free off-the-shelf" system with a proven track record that has provided millions and millions of exams in many jurisdictions over a period of 18 years. Again, I don't wish to minimize that the State has some risk, but asking for a bond on a proven product with an impeccable record would be like telling Microsoft that you wish a multi-million dollar bond to cover any potential risk of losing information in Microsoft Word, after they have given you the product at no cost. Solutions Thru Software is extremely interested in this contract and at the prospect of working with the State of Florida, however at present we have a better chance than not of being forced to withdraw. This would be a terrible situation as Solutions Thru Software is the leading vendor in solutions such as this and has been doing so longer than any other company in the market. One possible compromise may be to add Florida as a named beneficiary on our insurance policy as an alternative to a Bond. Solutions Thru Software carries 2 million dollars in Liability, and we have had other customers accept this as a means of protecting their risk in the past. Any assistance you can provide would be greatly appreciated. Of course time is of the essence. If we cannot find a bonding company by your August 1st deadline, then STS will be forced to submit a No-Bid in response to the BAFO. Sincerely, Jim The following day, on July 25, 2012, Mr. Sodero sent Mr. Kosberg another email regarding the bonding requirement. This email provides, in part, as follows: The performance bond and damages bond continue to be issues. The companies that we are dealing with still believe this is a highly irregular request. To provide a quote from their latest email, "I'm not sure the Damages Bond will be something they'll want to consider. It's an odd request." We are proceeding with the application at any rate, and if you can provide other companies, we will proceed with the paper work for them as well. Addendum 3 issued by the Department, among other things, modified the Calendar of Events section of the ITN. The original ITN provided that "best and final offers" were due no later than 2:30 p.m. (EST), on August 1, 2012. Addendum 3 changed the due date for "best and final offers" to August 3, 2012. On July 27, 2012, STS sent additional emails to the Department regarding the bonding requirements. The first email was sent at 8:15 a.m. (CST), by Jim Sodero to Jon Kosberg. The email states as follows: Hi Jon, I just thought I would let you know that I am currently writing up a formal request to have the bond request eliminated or modified as per section 2.7. . . If there are any requirements which restrict competition, the respondent may request, in writing, to the Procurement Officer identified in Section 1.3 that the specifications be changed . . . The matter is not as to whether we can get a bond as it is looking like we will be able to. The problem is that we only have slightly over one week from the time the bond value was set, until the a [sic] guarantee of such bond must be provided with the BAFO. We have also had our lawyers review section 5.6 5.6 WITHDRAWAL OF SQSO: Withdrawal of SQSO's may be requested within 72 hours (excluding State holidays, Saturdays, and Sundays) after the opening time and date. Requests received in accordance with this provision may be granted by the Department upon proof of the impossibility to perform based upon an obvious error. They identified two problems with this section. The first is that it is not clear as to whether the 72 hours if [sic] from the opening of the original bid, or the BAFO. The second is that they do not believe there is sufficient guarantee that an obvious error can be demonstrated given that we have been discussing this bond limitation since the onset of preparing this bid. Please give me a call if you wish to discuss this prior to me sending out our formal request. Jim A few hours later, Jim Sodero, at 11:14 a.m.(CST), sent a second email to Jon Kosberg which states as follows: Mr. Kosberg, Re: Request for removal of Conditions that Restrict Competition As per section 2.7, Solutions Thru Software wishes to identify a requirement which restricts our ability to compete in this RFP process. This is a concern that was identified when submitting our submission for the original RFP. Some clarification was provided by the State through the BAFO request, but unfortunately, as it stands, this concern still prevents Florida from receiving a full complement of competitive bids for this RFP. The issue specifically concerns the bond requirements stated in sections 2.3 Proposal Bond, 2.4 Performance Bond, and 2.5 Damages Bond. Although bond requirements are common in many government contracts, they are not common in the industry of knowledge testing. This is due to the relatively low inherent risk assumed by the State. As the longest standing company in the business, Solutions Thru Software has not been required to obtain any bonds in our 18 years of impeccable service to the industry. As a "zero cost bid," the risk to the State of Florida is even less than is typical for the industry. For Florida, it is Solutions Thru Software who will finance and install literally millions of dollars in hardware and software for the purpose of knowledge testing for the State. The only risk to Florida is the potential of delay of service due to infrastructure failure, but no actual loss of service would exist as history has shown that the designed redundant system recovery is both seldom used and results in very short outages. Our request for a RFP/BAFO modification is based on: With 18 years of bond free service, it cannot be expected that STS would have a 'standing' bond in place or a history of successful bond completion. As the total value of the bonds was not known until the release of the BAFO, it was impossible to be pre-approved for the bonds in question, leaving only 9 days to apply and be approved. The bonding companies we have spoken with have said that this timeline for a new bond is not possible. The bonding companies have indicated that there is insufficient information on the surrender requirements for the bonds. In particular, they are confused as to the differences between the performance bond and the damages bond and why both must be renewed annually for the duration of the contract. In their opinion, the performance bond should cover the period between the onset of the contract and the final sign off by the state that Solutions Thru Software has installed an operational system that satisfies the terms of the contract. At this point, the performance bond should be released and the damages bond put in place and renewed annually to protect the State for potential losses during operation of the system. If both bonds must remain in place, then they believe the State must clearly identify the types of problems that will result in the surrendering of each bond. Although verbal assurance has been given that Solutions Thru Software 'should' have no difficulty in obtaining the performance bond, the bonding companies are more hesitant regarding the damages bond without further clarification being provided by the State. Given this situation Solutions Thru Software is very concerned with the risk of submitting the bid bond without receiving written assurance that the bid bond will be returned if the bonding companies are unwilling to accept the surrender conditions of the State. The State has recommend[ed] that we continue with the bid process with plans of using the "72 hour" clause to pull our bid if necessary, but upon review of this clause, it is still unclear if failure to secure a bond can be demonstrated as an obvious error given that we have already pointed out this shortcoming through the RFP and BAFO process. It is also very unlikely that 72 hours will make the difference on the bond approval, as the first thing that they need is clarification from the State. It is our opinion that the above points demonstrate an uneven playing field. Bonds have not been a standard requirement in this industry in the past and it cannot be expected that all companies will have 'standing' bonds in place. The only companies that will be able to respond to this RFP/BAFO will be companies that have other services that have required bonding, or possibly may have a track record that has warranted a need for bonding. Solutions Thru Software respectfully request that the State of Florida takes one of the following actions: Remove the bonding requirements Modify the requirements to state that the performance bond will ensure an operational system meeting requirements and that it will be returned upon State sign- off. And, modify the requirement of the damages bond to be annually renewable bonds to cover the period of operation. And, extend the requirement date for submission of the performance bond and damages bond and provide in writing that failure to obtain these bonds will not result in forfeiture of the bid bond. Thank you very much for your consideration of this request. Jim At approximately 11:30 a.m. (CST), on July 27, 2012, Jon Kosberg sent an email alerting prospective bidders to the fact that Addendum 3 had been posted the previous day. Mr. Sodero, in response to Mr. Kosberg's email, sent his third email of the day to Mr. Kosberg at 2:56 p.m. (CST), and stated therein the following: Thanks Jon, I appreciate you forwarding Addendum 3 to us. However, our request for re-evaluation of the bond requirements still stands on the grounds that it creates an uneven playing field. It does not address the concerns that our bonding companies have expressed to us. As well, it only allows companies that have other products that typically require bonds to be able to make the proposed deadline. That is, companies that have a precedent for this type of request or, they have substantial financial backing (i.e. millions if not billions of dollars) making their request to a bonding company much more palatable. Jim On Tuesday, July 31, 2012, at 3:19 p.m. (EST), Mr. Kosberg sent an email to MorphoTrust and STS advising that Addendum 4 had been posted. This addendum deleted the requirement for a damages bond as previously required by section 2.5 of the ITN. Less than an hour and a half after the posting of Addendum 4, Ms. Openshaw, vice-president of State and Local Sales for MorphoTrust, was speculating that the Department deleted the damages bonding requirement to assist STS. Specifically, Ms. Openshaw stated, "I wonder if this addendum is because STS said they needed relief on some of the 'bondage' or they would not bid." On Wednesday, August 1, 2012, Mr. Sodero emailed Mr. Kosberg regarding Addendum 4 and stated therein the following: Hi Jon, we are still at the office getting this proposal out the door, but I wanted to send you the latest from our bonding company, as we will have to remain diligent on this to meet the time line. We appreciate the changes you have made, however, they are still not meeting the main concerns of the bonding company. In explaining why the Department decided to delete the requirement for a damages bond, Mr. Kosberg indicated that the Department "decided to look [at] what would be in the best interests of the Department," and through this process determined that, [B]ecause of the unique model of this no cost solution and both vendors telling us that, you know, bonding may be redundant, we realized that we can achieve what we need in our requirement for bonding by holding strong to the performance bond and the proposal bond, while at the same point . . . remov[ing] the damages bond because of the redundancy, and we realized by removing that damages bond, we may ultimately realize better pricing for the third party administrator, because ultimately every requirement that we put in this ITN gets pawned off, you know, the price, to whoever may be paying for this particular type of service or item. (Transcript pg. 797) Petitioner suggested that section 2.7 of the ITN precluded the Department from considering and acting upon STS's request to change the bonding requirements. Section 2.7 of the ITN provides, in part, that if a proposer believes that there are requirements in the ITN that restrict competition, the proposer may request in writing that the requirements be changed by the Department and that any "requests for changes to the solicitation, must be received in writing by the Issuing Officer no later than the date and time specified in the Calendar of Events (May 1, 2012, at 4:00 p.m. Eastern Time)." Section 2.7 also states that "[a] respondent's failure to request changes by the date described above, shall be considered to constitute respondent's acceptance of Department's specifications." As an initial matter, it is important to note that both STS and MorphoTrust voiced concerns about the ITN's bonding requirements well after May 1, 2012. While it is true that section 2.7 of the ITN directs that requests for changes to the solicitation must be received by the Department by some date certain, the requirements of section 2.7 must be read in conjunction with the other provisions of the ITN. Section 1.3 of the ITN provides, in part, that "[t]he Procurement Officer, acting on behalf of the Department, is the sole point of contact outside of official conferences and meetings with the agency's team, with regard to all procurement matters relating to this solicitation, from the date of release of the solicitation until the Department's Notice of Intended Award or Decision is posted." Also, Addendum 1 to the ITN makes it clear that the Department reserves the right to post addendums to the ITN as necessary. In reading these provisions together, it is clear that the ITN process is one where proposers are allowed to voice concerns about "all procurement matters" relating to the solicitation during the window of time between the date of release of the solicitation and the posting of the Department's Notice of Intended Award or Decision. The Department, in accordance with section 2.7, is always free to inform a respondent, as appropriate, that their failure to adhere to the established timeline constitutes "acceptance of the Department's specifications." It cannot, however, be said that section 2.7 precludes, as a matter of law, the Department from deleting provisions of an ITN subsequent to the date by which proposers are to submit questions and recommended changes. Generally, the Department is free to make changes to the provisions of an ITN prior to the submission of BAFOs as long as the changes do not favor, or create the opportunity for favoritism of, one bidder over another. See generally City of Miami Beach v. Klinger, 179 So. 2d 864 (Fla. 3d DCA 1965). The Department credibly explained its rationale for deleting the damages bond requirement, and there was no contrary credible evidence offered by MorphoTrust demonstrating that the Department's stated reasons are pretextural. Petitioner's argument that the Department impermissibly favored STS by deleting from the ITN the damages bond requirement is not supported by credible competent evidence. The Relevant ITN Specifications are not Ambiguous Petitioner alleges that "the Department's proposed award is contrary to the statutory requirements for a competitive solicitation" and is "contrary to the bid documents" because "[t]he only two vendors who submitted BAFOs interpreted the required Price Proposal Form completely differently." In furtherance of the allegation, Petitioner contends that the proposers were confused throughout the procurement process about how they were going to "recoup the costs associated with the no cost contract" and that this confusion resulted in the proposers developing divergent assumptions and proposals that prevented the Department from being able to conduct "a comparable analysis of the proposals." Petitioner's allegations are without merit. As an initial matter, Petitioner's assertion, that its proposal was "completely different" from that of STS because of confusion about the specifications of the ITN, is a challenge to the specifications of the ITN. This challenge to the allegedly ambiguities in the specifications is untimely given that Petitioner failed to initiate a written protest to the alleged ambiguous specifications within 72 hours of posting of the solicitation. § 120.57(3)(b), Fla. Stat.; Capeletti Bros., Inc. v. Dep't. of Transp., 499 So. 2d 855 (Fla. 1st DCA 1986). Nevertheless, even if the merits of Petitioner's argument are considered, the plain language of the bid specifications do not reasonably support Petitioner's claim of ambiguity. It is well established that bid specifications "must be sufficiently specific to permit bidders to bid upon the same product, and factors thereof which are of such importance as to be given special consideration in determining the successful bidder should be so covered in the specifications as to detail to all bidders the standards anticipated, the tests the product must meet, and all factors upon which the product will be judged and the award made." Robinson's, Inc. v. Short, 146 So. 2d 108, 113 (Fla. 1st DCA 1962). In a competitive bid process, one of the main objectives is to be able to "make an exact comparison of bids." Clark v. Melson, 82 Fla. 230, 89 So. 495 (1921). In support of its contention that the bid specifications were confusing, Petitioner cites to the Price Proposal Form as reflected in Addendum 3. According to Petitioner, the portion of the Price Proposal Form that addresses the "cost to access system" reasonably caused Petitioner to believe that "the system" to which the form referred was the "knowledge testing solution" only, and thus, resulted in Petitioner not including in its proposal a fee for skills testing. This conclusion by Petitioner is not reasonable given that throughout the ITN, the Department made it clear that "the system" included the hardware, software, and other issues associated with the administration of driving skills exams. Section 1.1 of the ITN indicates that the Department is looking "for an [ADLTS], which is to be provided at no cost to the Department." In section 3.1 of the ITN, the Department provides "background" information about the current test administration system in Florida for both knowledge and skills examinations for Class E operators. Specifically, as to skills examinations, section 3.1 notes that applicants must pass both a knowledge and skills exam, that skills examinations currently "administered by State and Tax Collector Examiners are documented by hand, with pass/fail scores manually determined and entered into the driver license issuance system." Section 3.1 also notes that "currently, all operator skills exams are administered through State or Tax Collector Offices, with the exception of any teenager who completes a driver education program through their local high school." Section 3.1 of the ITN further notes that over the next several years, the Department "will provide an opportunity for third- parties to administer Class E driving skills exams" and that the Department "will expect third-parties administering Class E driving skills exams to use the [ADLTS] system sought [by the ITN] at their own expense." Section 3.1 clearly communicates a desire by the Department to include within the scope of the ITN issues related to skills testing. This conclusion is further supported by other provisions of the ITN. Section 3.2 of the ITN provides that the Department seeks a testing system that must include among other things "[a] tablet-based solution for the administration of Class E driver license skills exams." Section 3.3 of the ITN provides that the Department anticipates "mandating that third-party administrators of Class E driving skills exams use the tablet system sought [by the ITN]." Section 4.1 of the ITN provides that "the awarded Contractor must also provide an option for purchase of a mobile tablet-based hardware/software solution for the administration of driving skills exams that will update the central testing database." Section 4.2.8 of the ITN makes it clear that when implemented, "the system" must provide "replacements for the current test types, including Class E skills testing." While it may be true that Petitioner was confused, it cannot reasonably be said that the source of Petitioner's confusion was the specifications of the ITN. Contrary to Petitioner's allegation, the evidence establishes that STS's interpretation of the Price Proposal Form was consistent with the specifications of the ITN and that the specifications of the ITN were sufficiently clear so as to allow MorphoTrust and STS to bid on the same product. A more likely source of Petitioner's confusion about the scope of the ITN can be found in Petitioner's general unfamiliarity with the concept of combining knowledge and skill testing as part of a single solution. According to Petitioner, "[n]o jurisdiction in the United States has previously issued a competitive procurement requiring a solution combining knowledge tests and skills tests as part of a no cost solution." Whether this is a true statement or not, it is evident that the lens through which Petitioner viewed the ITN was one that focused on knowledge testing as being the only source for generating revenue from test fees. By contrast, STS, through its operations in Canada, has merged knowledge and skill testing as part of a no cost solution and saw the opportunity to do so in Florida based on the unambiguous specifications of the ITN. Petitioner's next basis for challenging the proposed award is that "the Department's proposed contract award is not based on a reasonable comparison of the anticipated overall cost of the two vendors' proposals and the proposed contract award fails to reflect a determination of best value to the state." Section 8.1 of the ITN provides that the "[a]ward will be to the highest scoring proposal, considering the technical proposal scoring and all costs for the five-year contract period." Section 8.9 of the ITN references the methodology for evaluation of costs for the five-year contract period and provides that the lowest cost proposal would be awarded 15 points. Based on the formula, Petitioner was awarded 2.5 cost proposal points, and STS was awarded 15 cost proposal points. When totaling all scoring categories, MorphoTrust received 168.1 points, and STS received 191.6 points. The Department's consideration of the technical and cost aspects of the respective proposals resulted in the proper determination of the "best value" to the State as required by section 287.012(4). As for the issue that the proposed contract award is not based on a reasonable comparison of the anticipated overall cost of the two vendors' proposals, Petitioner specifically alleges that the cost scoring system was flawed because the Department "did not recognize or incorporate the very significant pricing assumptions and cost differences of the vendors in evaluating the ITN responses." This allegation is not supported by credible competent evidence. Any pricing assumptions made by the proposers to the ITN should have as its foundation the information found in the ITN. Sections 3.1, 3.2, 3.3, and 3.6 of the ITN are particularly instructive to proposers when developing their "assumptions" for purposes of creating a cost proposal. These sections of the ITN describe the Department's current state of affairs and where the Department desires to be in the future with respect to driver license testing. In particular, Section 3.6 provides very specific information about the number of driver license examinations administered by type and how test volumes are likely to be impacted by future events. MorphoTrust's written price proposal details an $8,000.00 per entity, one-time tablet set-up fee, if there is a "minimum of 40 entities." In evaluating this assumption, it was noted by the Department that MorphoTrust's proposal is silent regarding what the fee would be if there are less than 40 entities. By comparison, STS's proposal reflects a per tablet cost of $2,219.50 regardless of the number of entities purchasing tablets. A MorphoTrust tablet costs nearly four times as much as a tablet offered by STS. MorphoTrust in its price proposal identified "knowledge testing tiers" where the price would be $10.00 per test for testing volumes between 100,000 to 149,999; $7.50 per test for testing volumes between 150,000 to 199,999; and $4.95 per test for testing volumes in excess of 200,000. By comparison, STS charges $4.42 per test for knowledge and skills tests respectively, with the price for each test decreasing if annual testing volumes exceed 500,000 tests per fiscal year. Each of these assumptions, as well as others, was considered by the Department when evaluating the respective price proposals. MorphoTrust argues that the Department's evaluation of STS's proposal failed to consider the fact that STS intends to charge $4.42 for each of the two portions of the knowledge test as opposed to a single charge of $4.42 for the entire knowledge test. In calculating the total cost of STS's proposal, the Department determined the cost to be $6,447.84 using a single knowledge test fee of $4.42. If STS's knowledge test fee is doubled to $8.84 to reflect the cost for charging for both portions of the knowledge test, then the total cost of the proposal, using the department's formula, increases to $6,452.00 dollars. The amount of $6,452.00, when compared to MorphoTrust's total cost of $38,659.90, is still the better value for the Department, third-party administrators, tax collectors, and ultimately the public. To the extent that MorphoTrust suggests that its pricing structure would have been different had it known that the ITN allowed for a per test fee for skills testing, this suggestion is without merit as explained elsewhere herein. Petitioner did not Prove STS's Proposal is Non-Responsive MorphoTrust alleges that STS's proposal should be rejected as non-responsive for three reasons. First, MorphoTrust contends that STS's BAFO proposal does not meet the mandatory performance bond requirements of the ITN. Section 2.4 of the ITN provides, in part, that "[t]he successful proposer shall supply no later than '14 calendar days of award,' a Performance Bond issued by an insurance company licensed by the State of Florida Department of Insurance." Because section 2.4 of the ITN uses the word "shall" in setting forth the performance bond requirement, this requirement is considered a mandatory provision of the ITN, and the proposal must provide an explanation of how the requirement will be satisfied. Section 1.5 of the ITN provides that the Department "reserves the right to accept alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results, without addendum to this ITN." STS proposed two options in its BAFO to satisfy the performance bond requirement. The two options provide as follows: Performance Bond Costs Option 1. Bonding companies have given us an estimate of the expected yearly cost of the bond, however we would like to have additional conversations with the State on surrender conditions. Solutions Thru Software will only charge the exact cost of the bond, without markup or handling fees. The following would be a one-time fee for the five year contract. $TBD (estimated at 3%) Performance Bond Costs Option 2. If the state prefers, the bond cost can be added onto the per test fee for an estimated additional. $TBD (estimated at 3%) On August 10, 2012, after submission of BAFOs by the proposers, Mr. Kosberg sent an email to Mr. Sodero at STS and stated therein the following: Jim, Per our discussion I am clarifying the following: The option related to the Performance Bond that will be suitable for the State would be to add the cost onto the per test fee, which you identified as an additional 3%, which totals $0.13 per test, bringing the per test fee from $4.29 to $4.42 per test. Mr. Sodero, in response to the inquiry from Mr. Kosberg, confirmed that the "13 cents per test is a firm price to cover all bond costs . . . [and that STS] will honor the 13 cents per test cost and assume any financial risk should cost go beyond this point." In considering STS's proffer with respect to the performance bond requirement, it is clear that in its BAFO response, and its clarifying statement related thereto, that STS affirmatively represented that it was prepared to comply with the performance bond requirement. Simply stated, STS's proposal as to the performance bond requirement is responsive. As the second ground for rejection of STS's BAFO as being non-responsive, MorphoTrust contends that STS impermissibly submitted a "post-scoring amendment" to its pricing proposal in violation of the specifications of the ITN. The alleged "post scoring amendment" occurred when STS clarified the extent to which the three-percent bond premium would impact its cost proposal. Section 1.48 of the ITN provides that "[t]he Department reserves the right to contact any and all proposers for the clarification of responses to th[e] solicitation in accordance with the attached Form PUR 1001, Paragraph 15." Form PUR 1001, paragraph 15, provides that "[b]efore award, the [Department] reserves the right to seek clarifications or request any information deemed necessary for proper evaluation of submissions from all respondents deemed eligible for Contract award." Contrary to the allegations, STS did not amend its BAFO in an improper manner as suggested by Petitioner, but, instead, merely clarified its BAFO in response to an inquiry from the Department as authorized by the ITN. In its third ground for rejection of STS's BAFO as being non-responsive, MorphoTrust contends that "[t]he STS proposal should . . . be rejected because it modified the required Price Proposal Form to include a per test cost to be charged for 'skills testing.'" This ground, like the others, is also without merit. Section 1.44 of the ITN provides, in part, as follows: "The proposal forms furnished must be submitted with your proposal. Forms to be filled out in pen or ink or typewritten with no alterations, changes or amendments made within." (emphasis added). As previously noted, section 1.5 of the ITN provides that "[t]he use of the terms 'shall,' 'must,' or 'will' (except to indicate simple futurity) in this solicitation indicates a mandatory requirement or condition." Consistent with section 1.5, the only relevant portion of section 1.44 that is mandatory is the requirement that "proposal forms must be submitted with [the] proposal" because this is the only portion of section 1.44 that uses the mandatory term "must." As for the portion of section 1.44 that deals with the substance of the form, it is only noted therein that the pricing forms are "to be" filled out a certain way. "To be" is not identified in the ITN as imposing a mandatory requirement or condition. Additionally, even if the original ITN can be read as requiring that the pricing form not be altered, changed, or amended, the Department, in the answers to questions 37 and 82 in Addendum 1 to the ITN, authorized changes, amendments, and alterations to the pricing forms. In response to question 37, the Department stated that "[t]here is only a Price Proposal Form [so] [p]lease utilize additional space in a Word, Excel or PDF format for pricing structure, if needed." Question 82 asks, "[i]n regards to the Pricing Proposal Form on page 42 of the ITN, can this form be modified to better present our pricing strategy to the State of Florida?" The Department, in reply to Question 82, responded "[y]es, this form can be modified utilizing Word, Excel or PDF to format a proposed pricing structure." Petitioner failed to present credible evidence demonstrating that STS altered the Price Proposal Form in a manner inconsistent with the requirements of the ITN.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Highway Safety and Motor Vehicles, enter a final order adopting the Findings of Fact and Conclusions of Law set forth herein and dismissing MorphoTrust's protest as untimely, as indicated, and otherwise unsubstantiated.3/ DONE AND ENTERED this 7th day of December, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 7th day of December, 2012.
The Issue Whether Petitioner abandoned her position and resigned from the career service.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Betty Pigatt, was employed by the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles (Respondent) from February 22, 1983 until January 21, 1988. Petitioner injured her lower back in an automobile accident on April 17, 1985. She was previously disabled from a work related injury and was awarded prior temporary total disability benefits. She returned to work on June 5, 1987. Her condition became progressively worse and she again ceased work on June 27, 1987. Petitioner complained of pain in her lower back going down her left leg and into her foot. She had limited ability to stand and sit, and complained of pain and limitation of motion in her neck. Petitioner was treated by Dr. Rosabal who discharged her in late July, 1987. She thereafter was treated by Dr. William Bacon, who has treated her since August 17, 1987. By letter dated September 24, 1987, Petitioner was advised by Respondent's Division Director, James H. Cox, (Cox) that her request for leave without pay was granted beginning September 2 thru November 30, 1987. She was further advised that Respondent "requested that she send a Doctor's statement to Mr. Richard Weaver, Bureau Chief of Field Operations, explaining your medical condition and an approximate date of when you will be able to return to work". (Respondent's Exhibit 1). Petitioner was aware that she was to submit a letter of explanation of her medical condition from her physician. Petitioner failed to submit such a letter. Thereafter, Petitioner requested additional leave without pay and Cox advised Petitioner as follows: Your recent letter requesting additional leave without pay cannot be given favorable consideration until you furnish Mr. Richard Weaver, Bureau Chief of Field Operations, with a statement from your Doctor explaining your medical condition and an approximate date of when you will be able to return to work. Respondent, by its Acting Regional Director, Martha A. Castro, advised Petitioner by letter dated January 21, 1988, that her request for an extension of leave without pay had been denied and she was directed to report for duty at her assigned office at 7:00 a.m., on January 13, 1988. Petitioner did not report to work as directed on either January 13, 14, or 15, 1988. Respondent advised Petitioner by letter dated January 21, 1988, of Fred O. Dickinson, III, Deputy Executive Director of the Department of Highway Safety and Motor Vehicles, that as she had not reported to work for 3 consecutive work days, in accordance with Rule 22A-7.010(2), Florida Administrative Code, she was considered to have abandoned her position and to have resigned effective immediately. Petitioner had received maximum medical improvement and was requested to return to work as of January 13, 1988. (Respondent's Exhibit 6). Petitioner was familiar with her rights and obligations as an employee and was responsible for knowing the contents of the Driver License Examiner's Manual. On page 240 of the Examiner's Manual which was in use during Petitioner's employment is the requirement that leave without pay must be authorized by the Director of the Division of Driver Licenses. Petitioner did not obtain authorized leave without pay from the Director of the Division of Driver Licenses as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Final Order be entered finding that Petitioner abandoned her position and resigned from career service, and denying Petitioner's request that she be reinstated to her position of employment. DONE and ORDERED this 17th day of October, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1163 Rulings on Petitioner's proposed factual findings: Adopted as modified, paragraph 1, R.O. Adopted as modified, paragraph 9, R.O. Adopted as modified, paragraph 4, R.O. Adopted as modified, paragraph 5, R.O. Adopted as modified, paragraph 6, R.O. Adopted, last sentence paragraph 6, R.O. Adopted as modified, paragraph 7, R.O. Adopted as modified, paragraph 8, R.O. First sentence adopted and the remainder rejected as irrelevant. COPIES FURNISHED: Suzanne G. Printy, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A432 Tallahassee, Florida 32399-0504 Betty Pigatt 1262 Northwest 172nd Terrace Miami, Florida 33169 Michael Alderman, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0555 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issues are whether Petitioner is eligible for agency- sponsored employment services or whether he is capable of returning to suitable, gainful employment via an offer of employment from his former employer.
Findings Of Fact Petitioner began working for Ploof Truck Lines (Ploof) as a trainee over-the-road truck driver in August of 1995. Prior to his employment with Ploof, Petitioner worked in the aerospace industry. He had work experience in computer operations, computer software programs, and assembly of electronic accessories. Upon his employment with Ploof, Petitioner began a four- week training program, earning gross wages in the amount of $300 per week for the weeks ending August 24, 1995, August 31, 1995, September 7, 1995, and September 14, 1995. Upon completion of the training program, Petitioner worked as a single-seat truck driver, earning the following amounts: (a) $107.99, for the week ending September 21, 1995; (b) $160.25, for the week ending September 28, 1995; (c) $388.92, for the week ending October 5, 1995; (d) $601.49, for the week ending October 12, 1995; (e) $489.43, for the week ending October 19, 1995; (f) $571.53, for the week ending October 26, 1995; (g) $507.35, for the week ending November 2, 1995; (h) $594.19, for the week ending November 9, 1995; and (i) $526.43, for the week ending November 16, 1995. A trained truck driver's earnings depend on his or her productivity. The average salary of an experienced single-seat truck driver falls in the range of $400 to $600 per week. A novice single-seat truck driver earns an average salary in the range of $300 to $600 per week. Petitioner was a novice single- seat truck driver when he was injured. One of the duties that a truck driver has is to assess the safety of a tractor and trailer before accepting a hauling assignment. In other words, the truck driver must determine whether the tractor and trailer meet legal road requirements. In this case, there is no persuasive evidence that Petitioner's wages were lower than average at any time because Ploof did not have a "road ready" tractor/trailer available. To the contrary, Petitioner rejected all available trucks during the first week after his completion of the trainee program because the trucks were not clean. At Ploof, trainee truck drivers earn a salary of $300 per week for four weeks. Trained truck drivers are paid according to the number of miles they drive, 29 cents per mile loaded and 19 cents empty. If a truck driver is detained on the road because he or she has no work order or because of mechanical problems, the truck driver is paid a flat fee of $25 after 24 hours. The driver manager is responsible for assigning work to the truck drivers. A truck driver located at the terminal does not accrue mileage or a salary if the driver manager does not assign him or her a load to pickup or deliver. In that case, Ploof allows the truck driver to work in the warehouse or around the yard for an hourly wage. Petitioner presented no persuasive evidence that his wages as a truck driver were lower than average at any time because the driver manager was unable to or refused to assign him a load to pickup or deliver. Additionally, Petitioner did not present any credible evidence that his wages were ever lower than average because he was detained at a truck stop with no hauling assignment or a mechanical breakdown. On November 20, 1995, Petitioner fell, fracturing his left ankle, while employed as an over-the-road single-seat truck driver with Ploof. After Petitioner's injury, Ploof and its workers' compensation carrier calculated Petitioner's average weekly wage (AWW) as $395.97 per week, based on Petitioner's gross wages for thirteen weeks beginning on August 24, 1995, and ending on November 16, 1995. This figure does not include Petitioner's final gross wages as a truck driver for the period ending November 20, 1995, in the amount of $655.83. 1/ Respondent does not compute AWW. Instead, Respondent uses the AWW as computed by the employer and its carrier when determining an injured employee's average weekly earnings. In this case, Respondent based its decisions about suitable gainful employment for Petitioner using the $395.97 figure. If Respondent had included Petitioner's gross wages in the amount of $655.83 for the period ending November 20, 1995, Petitioner's average weekly earnings would have been closer to $423.34. Petitioner received immediate medical treatment at South Georgia Medical Center after his accident on November 20, 1995. Upon his return to Jacksonville, Florida, Dr. Harold Lynn Norman became Petitioner's treating physician. On February 5, 1996, Dr. Norman released Petitioner to return to part-time work (four hours a day) at light duty. Petitioner subsequently returned to work for Ploof. Petitioner worked in the safety/personnel department because his work restrictions precluded him from driving a truck. His job duties included calling applicants for truck driver positions and performing background checks on applicants. This job was within Petitioner's physical restrictions. He earned $7.50 per hour, which was close to the AWW as determined by the employer/carrier. On April 1, 1996, Dr. Norman increased Petitioner's work hours from four hours a day at light duty to eight hours a day at light duty. Petitioner continued to work for Ploof in accordance with his doctor's instructions. His job duties and salary remained the same. Ploof eventually changed Petitioner's job after he returned to work full-time at light duty. The new job involved operating the log scan machine. Initially, Ploof increased Petitioner's salary to $8.00 per hour. Ploof ultimately raised Petitioner's salary to $8.50 per hour. On or about May 6, 1996, Dr. Robert Yant became Petitioner's treating physician. On November 14, 1996, Dr. Yant placed Petitioner at maximum medical improvement (MMI). On that date, Dr. Yant gave Petitioner a zero percent permanent impairment rating with no permanent work restrictions. After this release to work, Ploof offered Petitioner a job in the safety department earning $8.50 an hour. Petitioner refused this job because he thought it was not "conducive" for him to return to work at Ploof at that wage and because he was not interested in returning to work with Ploof. His refusal was not related to his work restrictions. Petitioner's medical condition worsened after he refused the November 1996 job offer from Ploof. He eventually required additional ankle surgery by Dr. Yant. That surgery was performed on December 5, 1997. On or about June 29, 1998, Petitioner made an appointment to attend an orientation for Respondent's re- employment services program. On July 16, 1998, he attended the orientation, which is the first stage in the re-employment services program. That same day, Respondent signed a Request for Screening (Form DWC-23). Petitioner's signature on the form indicated his belief that he was eligible for screening by Respondent for re-employment services/benefits. The second stage in Respondent's re-employment services program is the screening phase. During this period, the Form DWC-23 is sent to the employer and/or its carrier. The employer's signature on the form indicates that there is no employment available for the injured employee with the employer of injury. The carrier's signature on the form indicates the carrier's agreement that the injured employee is entitled to screening for re-employment services or benefits. If the employer and/or carrier do not sign the form, Respondent takes the position that suitable employment is available with the employer. In this case, neither Ploof nor its carrier signed the Form DWC-23. Nevertheless, Respondent proceeded with the screening process to determine whether Petitioner was entitled to re-employment services or benefits. The program at issue is a return-to-work program, not a re-training or tuition assistance program. Respondent accomplishes the return-to-work program in one of three ways. First, Respondent attempts to place an injured worker directly in a job with a new employer when the worker has transferable skills, which permit return of the worker to the workplace in suitable, gainful employment. Second, Respondent contracts with an employer that will provide an injured worker with on-the-job training for specific tasks with Respondent reimbursing a portion of the worker's wages during the training period. Third, Respondent provides an injured worker with formal education and training under the following circumstances: (a) if the worker does not have transferable skills; or (b) if the labor market does not support the worker's transferable skills; and (c) if the worker is not able to perform his or her pre-injury work. If Respondent approves an injured worker for participation in a formal training and education program, the insurance carrier is obligated to pay temporary total rehabilitation payments (a workers' compensation benefit) to the injured employee. This payment covers living expenses during the re-training program, for a maximum of 52 weeks. Dr. Yant placed Petitioner at MMI for the second and final time on July 27, 1998. At that time, Dr. Yant gave Petitioner a seven percent permanent impairment rating. Petitioner's permanent work restrictions were one hour on, one hour off, and no stair or ladder climbing. On or about September 25, 1998, Respondent sent Dr. Yant an occupational description and job analysis report of a tractor/trailer truck driver. Respondent requested Dr. Yant to review the documents and determine whether this type of work would be appropriate for Petitioner based on his physical restrictions. Dr. Yant completed the physician's review on October 5, 1998. Dr. Yant added additional restrictions such as no lifting greater than twenty pounds and no repeated movement. Dr. Yant felt that repeated left foot clutch and assisting in any aspect of loading or unloading a truck would cause severe disability and pain. According to Dr. Yant, Petitioner is unable to return to work as a truck driver. By letter dated November 18, 1998, Ploof offered Petitioner another job as a driver recruiter. The duties of the job included telephone solicitation of qualified candidates from the Ploof office or Petitioner's home, direct contact with driver candidates at truck stops within a 50-mile radius of Jacksonville, and the option of recruiting drivers outside the Jacksonville area. The driver recruiter job paid $400 a week with future raises based on performance. This salary is consistent with the salaries of other Ploof employees performing the driver recruiter job. On December 8, 1998, Dr. Yant advised Petitioner that he should reject Ploof's offer of employment as a driver recruiter because the duties of the job required walking to and from areas of destination, climbing up and down stairs, and potential for out-of-town, overnight occasional travel. The next day, Petitioner rejected the job as driver recruiter because it was not within his job restrictions. He also believed it did not pay enough. On December 22, 1998, Respondent's staff performed a job analysis of Ploof's November 18, 1998, offer of employment as a driver recruiter. The job analysis included a site visit, task analysis, and interview with the owner of Ploof. By letter dated December 31, 1998, Respondent contacted Dr. Yant to determine whether the driver recruiter job was within Petitioner's work restrictions. In January 1998, Dr. Yant replied that the job was not appropriate for Petitioner because it involved ambulating on hard surfaces in parking lots. Dr. Yant was of the opinion that Petitioner should only perform sedentary type work. By letter dated January 28, 1999, Ploof offered Petitioner a modified driver recruiter job. Pursuant to the modifications, Petitioner would not have to travel to truck stops. Instead, he could work from the terminal office and assist with verification of applicants' employment background. The modified work position was within Petitioner's work restrictions. The modified driver recruiter job was the same type of work performed by Petitioner upon his return to work in 1996. Ploof's January 28, 1999, letter also offered Petitioner a job working as a log auditor in the log department at the terminal office. Petitioner had the necessary job experience and skills to perform duties of a log auditor. The physical requirements of the log auditor job were within Petitioner's work restrictions. Petitioner rejected Ploof's driver recruiter and log auditor job offers out-of-hand because he did not believe they paid enough and because he had no intention of ever working for Ploof again. Both positions pay $400 per week, which is at or close to Petitioner's AWW as determined by the employer/carrier. The jobs are currently available to Petitioner. On or about February 5, 1999, Respondent's staff performed a transferable skills analysis (TSA). The purpose of the TSA was to determine whether Petitioner had skills that would transfer to occupations in general, and if so, which of those occupations Petitioner could perform within his physical limitations. The analysis revealed 19 occupations which Petitioner could perform using his transferable skills. Of the 19 occupations, the following six occupations are appropriate for Petitioner considering his physical restrictions: (a) computer operator; (b) computer peripheral equipment operator; (c) routing clerk; (d) switchbox assembler I; (e) assembler, electrical accessories I; and (f) laborer, stores (shipping and receiving). Based on wage estimates in the Jacksonville labor market, the median salaries for these six positions range between $7.90 and $10.55 per hour. For example, the median weekly wage for a computer operator in the Jacksonville area is $422. This figure exceeds Petitioner's AWW as determined by Ploof and its carrier and is more in line with Petitioner's average weekly earnings corrected to include his wages for the period ending November 20, 1995. The Jacksonville labor market consistently has jobs available in the six occupations identified in the February 5, 1999, TSA. They would permit Petitioner to return to suitable gainful employment via direct placement rather than through training and education. 2/ Petitioner is capable of returning to work at suitable, gainful employment with Ploof. He also has transferable skills which would permit him to compete for other jobs providing suitable gainful employment within his physical limitations in the Jacksonville area.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, the Department, was the state agency responsible for the licensing and monitoring of the operation of interstate motor carriers in this state. The Respondent, PAT, was an interstate motor carrier of automobiles operating over the roads of this state. On October 10, 1991, Officer Ralph Vargas, an officer with the Department's Office of Motor Carrier Compliance stopped the Respondent's automobile carrier being operated by an employee of the Respondent in Boynton Beach, Florida, going north on US Highway #1. The stop was a random routine Level III safety inspection. Review of the documents carried by the driver reflected that the driver's driver license and the vehicle registration were in order. However, a review of the outside of the cab revealed that there was no required fuel decal being displayed. The driver showed Officer Vargas the cab card issued by the State of Florida for the fuel decal reflecting a decal had been issued for this vehicle. However, the decal was not displayed on the outside of the vehicle even though Mr. Vargas could see an area where an decal had been affixed. He can not recall whether he felt the area to see if it was sticky and he was unable to determine whether the former decal had been issued by the State of Florida or not. He did not see a CVSA, (Commercial Vehicle Safety Alliance) decal either. As a result of this infraction, Mr. Vargas assessed a penalty in the amount of $50.00 and issued a temporary permit at a cost of $45.00, both of which were paid by the driver at the scene. It is this penalty and permit which the Respondent contests. The pertinent statute in issue here required a vehicle of this kind to have both a cab card and a fuel decal which must be affixed to the vehicle. Mr. Vargas also issued the driver a warning for having an unauthorized passenger, (his son) on board and for not having his log book current. Mr. Hurley contends that just one week prior to this stop, the vehicle and driver were in California where a CVSA inspection was accomplished. While this was being done, Mr. Hurley personally inspected the vehicle to insure that all required decals were affixed. Again, before the truck left New Jersey on the instant trip, he again checked to insure the required decals were there. They were. Because he is aware of the extended time required to get a replacement decal for a vehicle, Mr. Hurley routinely purchases several extra $4.00 cab card and fuel decal sets for his trucks so that if, as here, one is lost or removed, he can, upon notice, get a replacement to the driver overnight. Here, he claims the decal must have been peeled off by someone while the vehicle was on this trip. It is his experience that Florida's decals are easily pulled off and, unlike the decals in some other states, there is no built in voiding process which would void the decal in the event it is stolen. Here, Mr. Hurley claims, the driver did not know the decal was gone. Had he known, he could have called the home office on the truck phone and have it delivered. It is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein denying Professional Auto Transport, Inc.'s request for a refund of the $50.00 civil penalty and $45.00 permit fee. RECOMMENDED this 12th day of June, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Richard L. Hurley President Professional Auto Transport, Inc. Box 492 Lakewood, N.J. 08701 Ben G. Watts Secretary Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether Respondent's, Jamie Gonzalez, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent was certified by Petitioner on April 26, 1983, and devoted approximately 20 years to his career in law enforcement. He is 58 years old. He holds Law Enforcement Certificate No. 117162. On the evening of December 13, 2002, Respondent left a social function at approximately 11:00 p.m. and was operating his motor vehicle, a pick-up truck, while his ability to operate the vehicle was impaired by alcoholic beverages. Respondent acknowledged this at the onset of the final hearing. As he drove in an erratic manner on a rural Seminole County, Florida, roadway, he was observed by seven teenagers traveling together in two motor vehicles. One of these individuals contacted a law enforcement agency using a cellular telephone. The law enforcement agency directed these young people to follow Respondent and to continue reporting his route. Because of Respondent's proximity to the City of Oviedo, Florida, the Oviedo Police Department was alerted that a drunk driver was headed toward their city. Respondent was driving to the location of his business in an industrial park located in Seminole County, Florida, in close proximity to, but not within, the Oviedo city limits. When Respondent arrived at his business, he departed his motor vehicle and entered his business premises. The drivers of the two vehicles which were following Respondent placed their vehicles in position to block Respondent's exit from the industrial park which had only one exit road. After spending approximately ten minutes in his office, Respondent re-entered his vehicle and began to leave the industrial park. As Respondent drove his pick-up out the exit road, he was confronted by two vehicles blocking the exit road and seven individuals standing in close proximity of the blocking vehicles. There is no evidence that, until his exit was blocked, Respondent was aware that he was being followed. At approximately the same time as this confrontation was taking place, Officer Heather Capetillo, Oviedo Police Department, having been alerted and on watch for a drunken driver, approached the scene on the main road and observed all three vehicles. Because the industrial park was not within the City of Oviedo, she turned her vehicle around and parked within the City of Oviedo city limits several hundred feet from the road leading from the main road to the industrial park. It is not apparent that Respondent or the seven young persons were immediately aware of Officer Capetillo's presence. Although testimony regarding the ability of the various participants to observe what was happening varied, the closest street lights were approximately one mile from the industrial park. At least one vehicle had its headlights on; the remainder of the lighting was natural, moonlight. Lighting conditions were not good. Upon observing the blocking vehicles and the dismounted passengers, Respondent stopped his vehicle approximately 50 feet from them, leaving the vehicle's headlights on. Earlier in the evening Respondent had $4,400 in his possession, which he had deposited in a safe in his office. Believing himself to be the potential victim of a robbery, Respondent exited his vehicle carrying his automatic pistol and his cellular telephone. Because he did not want to confront these seven individuals, he retreated up the road toward his office in the industrial park. Observing Respondent with a handgun, the seven young people were understandably alarmed and began shouting and taking cover. Two young women, observing what they believed to be a Florida Highway Patrol vehicle, ran to Officer Capetillo's vehicle, screaming that "the man had a gun" or words to that effect. Acting immediately, Officer Capetillo activated her emergency lights and drove to the scene. When Respondent realized that a law enforcement officer had arrived on the scene, he turned and began walking toward the vehicles, which now included the police cruiser. Upon exiting her vehicle, Officer Capetillo could not initially see Respondent. He was immediately pointed out to her by one of the young people. She observed him near the road behind and to the side of his truck. She was approximately 50 feet from Respondent's vehicle in the immediate proximity of her cruiser and the two blocking vehicles. Officer Capetillo advises that "her adrenaline was flowing." She immediately announced, "Oviedo Police. Where's the gun?" Respondent answered, "Right here." She observed that Respondent had something in both hands. Respondent's right hand then moved up, and Officer Capetillo was able to observe the "barrel of a gun." Respondent was holding the weapon in his right hand at the barrel housing between his thumb and forefinger. She then said, "Put your hands up." Respondent "immediately" (Officer Capetillo's quote) put his hands up. She then said, "Drop it," and "I could hear it clunk." "There was no hesitation"; again, Officer Capetillo's quote. Respondent actually dropped the weapon into the cargo bed of the pick-up. She then said, "Drop the other thing," and she immediately heard a second "clunk." Respondent's hands were now free. Officer Capetillo then instructed Respondent to kneel down, which he did, and he was handcuffed. When Officer Capetillo observed the weapon in Respondent's right hand with the barrel directed at her, she believed herself to be in imminent danger. Fortunately, she used excellent judgment and did not use her firearm.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (2002), and that the Administrative Complaint be dismissed. DONE AND ENTERED this 9th day of March, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2005. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jamie Gonzalez 1041 Sugarberry Trail Oviedo, Florida 32765 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues to be resolved in this proceeding concern whether the Respondent, P.A.T. Auto Transport, Inc., committed the violations alleged in the relevant Stop-Work Order and the Fourth Amended Order of Penalty Assessment, and, if so, what, if any, penalty is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged with the responsibility of enforcing the Workers' Compensation coverage requirements embodied in Section 440.107, Florida Statutes (2008), whereby Florida employers must secure the payment of workers' compensation insurance coverage and benefits for their employees. See § 440.107(3), Fla. Stat. The Respondent, P.A.T., is a corporation conducting a trucking business, headquartered in Pensacola, Florida. The Respondent's services include transporting motor vehicles using a fleet of some 61 highway tractors and associated auto transport trailers. Michelle Newcomer is an investigator employed by the Petitioner. Her duties include conducting inspections and investigations of businesses who may be workers' compensation employers, to determine if they are required to have workers' compensation coverage under Florida law, and the extent and compliance of that coverage. Ms. Newcomer conducted an inspection of the Respondent at 6732 Rambler Drive in Pensacola, Florida, on March 18, 2009. She determined that two companies, or businesses, operated at that address, the Respondent and MNT Enterprises (MNT). MNT had a workers' compensation policy covering its employees and was statutorily compliant. Ms. Newcomer also investigated the Respondent and learned that the principal stockholder, George Hedges, was exempt from coverage. She inquired about the status of the truck drivers working for the company and was told by Tracie Hedges that they were independent contractors. She was unable to witness any violations occurring at that time and concluded the investigation. Later, in April 2009, she received information that led her to believe that the Respondent's truck drivers were employees and not independent contractors. She had an opportunity to see a pay stub for a truck driver who had worked for the company who had been injured and had a workers' compensation issue. She noticed that the pay stub reflected that Federal Income Tax withholding had been deducted, along with various other deductions, such as Social Security and Medicare. She felt this might be indicative of an employee relationship, rather than the drivers being independent contractors. She returned to the Respondent's address later that month and issued a written Request for Production of Business Records to the Respondent and to an associated company called TK131. She issued a Stop-Work Order for the Respondent due to its purported failure to comply with workers' compensation coverage requirements for employees. The Respondent did provide the required business records. She reviewed the records provided to her and was able to ascertain that the Respondent employed more than four employees. Additionally, she learned that, although the Respondent, through a leasing arrangement for its office employees, had workers' compensation coverage for them, the 59 drivers and corporate officers did not appear to be covered by workers' compensation insurance. Thereafter, the Stop-Work Order was amended to include the purported failure to secure payment of workers' compensation coverage as required by Chapter 440, Florida Statutes. That resulted in a Stop-Work Order and Penalty Assessment. The Department also issued a Stop-Work Order and Penalty Assessment to DTS, LLC, which included the predecessor company, Darts Transport. The Stop-Work Order and Penalty Assessment issued to DTS was later revoked, however. The Department takes the position that the Respondent, P.A.T., paid its drivers through the entity known as "DTS", or directly with P.A.T. checks during the audit period, and that the number of drivers paid for their services was more than four employees and closer to 59 drivers for the 61 tractor-trailers owned by the Respondent. The Department does concede that a small number of the drivers were clearly owner-operators and no longer contends that they were employees. The Department thus contends that at no time pertinent hereto did the Respondent have a workers' compensation policy or an employee leasing arrangement in place by which workers' compensation coverage was provided for the drivers. The original Order of Penalty Assessment covered the period April 22, 2006, through April 22, 2009. The 4th Amended Order of Penalty Assessments for those dates, which is at issue in this case, also included a $108,000 fine for the Respondent's working in violation of a Stop-Work Order. The total fine assessed and sought by the Petitioner is $1,564,707.91. The Department maintains that the drivers working for the company are employees and therefore should have been covered with workers' compensation insurance, but the Respondent disputes that claim, asserting that the drivers are independent contractors and therefore do not need to be covered by workers' compensation insurance. The Petitioner maintains that office workers employed by the Respondent were required to be covered by workers' compensation insurance as well. The Respondent maintains that these were covered through coverage obtained from an employee leasing company, through an employee leasing program. The Department also maintains that three employees, as corporate officers, were not properly qualified to be exempt. The Respondent maintains that the required Exemption Request forms were properly delivered to the Department and therefore it complied with the law in obtaining exemptions from workers' compensation coverage. Finally, the Department maintains that certain named individuals were employees of the Respondent and should have been covered by workers' compensation coverage or insurance, but the Respondent maintains that these employees, who essentially performed incidental, non-recurring tasks for the Respondent, were not employees and did not have to be covered by such insurance. Moreover, the Respondent claims that it has a contingent liability insurance policy in place which served as a policy of workers' compensation insurance and for this reason it is compliant also. The parties agree that Florida Administrative Code Rule 69L-6.035 defines "payroll" as the basis for calculating a penalty. Payroll can include any of ten variations of payments from or through an employer to or on behalf of an employee. These include the payment of traditional wages and also bonuses, un-repaid loans to employees, expense reimbursements that are not documented on the employer's business records, payments binding an employer to a third party on behalf of an employee for services rendered by the employee, among others. Investigator Newcomer relied on Florida Administrative Code Rule 69L-6.035(1)(a) to define payroll for the office workers and truck drivers paid directly from the Respondent's account. The drivers were paid from the P.A.T. account from July 16, 2008, through April 22, 2009. Investigator Newcomer opined that the drivers' payroll prior to July 16, 2008, could not be included on the Penalty Worksheet based upon Rule 69L- 6.035(1)(a), but rather was based on Rule 69L-6.035(1)(i). Ms. Newcomer did not rely on Rule 69L.6.035(1)(b),(d),(e),(f),(h), or (j) to define P.A.T.'s payroll. The Department included payments to various child support enforcement agencies, made on behalf of drivers, on the Penalty Worksheet, by authority of Florida Administrative Code Rule 69L-6.035(1)(c), defined as payments made to a third party on behalf of the employer for services rendered to the employer by the employee. The Department also included as payroll on the Penalty Worksheet loans made to drivers, maintaining that these have not been repaid and should be deemed as part of payroll under Rule 69L-6.035(1)(g). There is no proof that this is the case, however, because neither Ms. Newcomer nor Ms. Hedges offered any evidence to establish that there is proof that some or all of the loans remained unpaid. The Petitioner, through the testimony of Investigator Newcomer, takes the position that payments made by P.A.T. to Darts Transports or DTS,LLC are properly included on the Penalty Worksheet by authority of Florida Administrative Code Rule 69L.- 6.035(1)(i). Those payments were made prior to July 16, 2008, before P.A.T. began making payments directly to drivers. The Rule provision in question, concerns payments made to an alleged non-compliant employer who has contracted with the customer, if the contract includes payment for labor and materials. If it is impossible to segregate the cost of materials from the employee payroll in such a contract, then under this Rule provision, 80 percent of the total contract price shall be presumed to be the employer's payroll, with regard to that customer and contract. The unrefuted evidence, however, establishes that the drivers in this situation were paid a flat 25 percent commission of the hauling fee charged by P.A.T., after deduction of the cost of fuel for the trucks. P.A.T.'s customers paid the fuel surcharge to P.A.T. There is no evidence that P.A.T. provided customers with any materials. Its business operation involves solely and simply the transportation of customer-owned vehicles. The Department also maintains that corporate officers Bradley Hedges and Gregory A. Hedges, as well as Teri Kimberly Forret, corporate officers of P.A.T., are non-exempt employees. It contends that under Rule 69L-6.035(2) their compensation constitutes "payroll," under the default formula in that Rule provision, for defining payroll to a corporate officer, if the ten factors under sub-section(1) of that Rule do not address the means of compensation received by those corporate officers. The quintessential question in this case, however, concerns whether the drivers are independent contractors or employees. If they are independent contractors, then there is no obligation on the part of the Respondent to ensure payment of workers' compensation benefits for them. This would mean that the Respondent cannot be adjudicated non-compliant by the Petitioner Department and payments to the drivers would not constitute payroll and would be stricken from the Penalty Worksheet calculation. Independent contractor status is defined in Section 440.02(15)(d)1.a.(I)-(VI) and b.(I)-(VII), Florida Statutes (2008). Under the former statutory provision, four of the six criteria must be met for independent contractor status to be established. Under the latter provision, any of the seven conditions named in that provision may be satisfied and independent contractor status thus established. With regard to the criteria in Section 440.02(15)(d)1.a.(I)-(VI), the preponderant weight of the evidence shows that some of the truck drivers are independent contractors with federal employer identification numbers and some are sole proprietors who are therefore not required to obtain a federal employer identification number under pertinent state or federal regulations. § 440.02(15)(d)1.a.(II), Fla. Stat. The evidence also shows, for purposes of Subsection(15)(d)1a.(V) of this statutory provision, that the drivers are permitted to work or perform work for other entities or companies needing their services, in addition to the Respondent, at the election of the driver. There is no showing that an employment application must be completed to perform such tasks for other unrelated entities. The drivers must use the unrelated company's truck for work assigned to them by such other companies or entities. They are not permitted to use P.A.T. trucks for non-P.A.T. transportation work (driving) they have agreed to perform. Moreover, all the drivers are compensated for completion of a task or set of tasks according to a flat 25 percent commission of the hauling charge imposed by P.A.T. There is no evidence that clearly shows a contractual agreement which expressly states that an employment relationship exists between the drivers and P.A.T. Even if the status and operations of the drivers referenced above does not meet four of the criteria listed in sub-subparagraph a. Subsection 440.02(d)1., they may still be presumed to be independent contractors and not employees, based upon a full consideration of the nature of their individual situation with regard to satisfying any of the conditions or criteria referenced in Section 440.02(15)(d)1.b.(I)-(VII). With regard to the first criteria under that provision, the drivers perform the services of driving for a specific amount of money in the form of a 25 percent commission. They control a substantial amount of the means of performing the services or work. The driver is asked to deliver vehicles from point A to point B for that commission. He gets paid that commission whether it takes one day or six days to accomplish the task. The driver determines the route to be driven. The driver, within the limits of the Department of Transportation rules, determines when to begin driving and when to pull over to sleep. The driver is free to decline to accept a hauling job. There is no detrimental action taken against a driver for declining to accept a given hauling job, unless it happens too frequently for satisfactory conduct of P.A.T.'s operations. The driver must provide the incidental tools and equipment, such as binding chains and maintenance tools to operate the truck and securely transport the load of vehicles he is required to transport. The driver is responsible for maintaining current driver's license qualifications and DOT physical examination requirements. The driver is responsible for paying for any necessary badges authorizing entry at maritime ports, a frequent occurrence in the transportation of foreign-manufactured vehicles. The Respondent, P.A.T., either owns or leases the trucks used by the drivers and pays for the insurance policies for the trucks. P.A.T. also pays for routine maintenance of the truck. If the driver causes damage of any sort to the truck, the driver must bear the financial responsibility for repair of the damage. The driver must also bear responsibility for any damage to the vehicles being transported on the trucks. It can thus be seen that both the Respondent and the drivers control a substantial portion, respectively, of the means of performing the services or work. Clearly, the unrefuted evidence shows that the drivers receive compensation for the work or services performed (driving services, incidental loading and unloading and protection responsibilities, with regard to the vehicular cargo), for a commission or per job basis and not on any other basis. Therefore criterion number IV, cited last above, is clearly met. Concerning criterion (II) under the last-referenced provision cited above, the drivers incur expenses for costs of their commercial driver's license, repair costs for any vehicle damage to the truck or to the vehicles which are being transported by the truck; any DOT fines incurred by the drivers; any badge expenses, as port entry and exit fees, must be borne by the drivers; lodging and meal expenses on the road during a haul must be borne by the drivers, without reimbursement. Concerning criterion (III), the driver is responsible for the satisfactory completion of the work or services that he or she agrees to perform, in the operational sense, in that the driver will not be paid if the delivery of the vehicles ordered to be transported is not satisfactorily accomplished. The privity of contract, however, for a given hauling job runs between the customer and P.A.T., the Respondent, who the customer actually contracts with to have the vehicles transported. The drivers, for purposes of criteria (V), (VI), (VII), of the last-referenced statutory provision, as established by the unrefuted testimony of Ms. Hedges, stand to realize a profit, or suffer a loss, in connection with performing the transportation driving services. They have continuing or recurring business liabilities or obligations aside from the expense of owning or leasing the truck, insuring the truck, or the fuel expense which they do not bear. They do, however, have recurring or continuing business liabilities or obligations which have a direct effect on whether they realize any net gain from a commission on a given hauling job. The success or failure of their business, even as sole proprietors, depends on the relationship of their receipts, under their 25 percent commission arrangement, and their expenditures for each hauling job for which they earn that commission. Drivers often complain of losing money due to vehicle repair bills, fines, towing charges, etc. Additionally, as referenced above, although when transporting loads for P.A.T., the drivers must use P.A.T. owned or leased trucks, the drivers are free, under their arrangement, to engage in hauling for other companies or customers, if they are not currently engaged in the middle of a hauling job for P.A.T. They may do so for other companies using other trucks, so long as they do not engage in such transportation services for other entities with P.A.T.'s truck. This factual arrangement tends to also militate in favor of the drivers not being employees. Many of the drivers have the standard federal tax withholdings deducted from their commission payments, as well as, in some cases, court-ordered child support payments. While this might be deemed to militate in favor of an employer/employee relationship, the unrefuted testimony of Ms. Hedges establishes that this is a service that drivers have come to P.A.T.'s management and requested, because in view of their many hours and days spent on the road, and for other reasons, involving their business management abilities, it is an assistance to them to have the tax liabilities simply withheld from their commission payments. This helps to avoid personal difficulties involving arrearages to the Internal Revenue Service. Status of Non-Driver P.A.T. Workers and Corporate Officers Persuasive testimony offered by Tracie Hedges, established that Regina Davis, Robin Hand, Stanley Warren, William Bertelsen, Cecil Hannah, Chipley Atkinson, Kristene Viverios, Katherine Flores, Laura Dunn, Amber Taylor, Amy Murphy, and Ms. Hedges herself, are office workers of P.A.T. They are covered by a policy of workers' compensation insurance through AES Leasing, a worker leasing company. Apparently the Petitioner no longer disputes this. Ms. Hedges reviewed, in her testimony, the final Penalty Worksheet concerning the status of various named persons who the Petitioner contends were employees, not covered by workers' compensation coverage. Ms. Hedges established with persuasive testimony that Arthur Nicolas was not a P.A.T. employee, but did some improvements on the office building (i.e. in the nature of carpentry). Alex Sibbach and Witt Davis did not ever work as employees for P.A.T. They may have performed some yard work or sold some equipment to P.A.T., but were never employees. She also established that Richard Burrson and Robert Marra were dump truck drivers for a company by the name of MNT Enterprises and had never been P.A.T. employees. Bradley and Gregory A. Hedges and Kimberly Forret are officers of P.A.T., or were at times pertinent to this case. The Petitioner contends that they had not established an exemption from the requirement of being covered under a policy of workers' compensation insurance. This is because of the Petitioner's contention that no corporate officer exemption had been filed or made effective. Bradley Hedges and Gregory A. Hedges are children of owners Greg and Tracie Hedges. Kimberly Forret is Tracie Hedges' sister. Ms. Forret is an office worker at P.A.T. and both Bradley and Gregory A. Hedges work at P.A.T. on a part-time basis while attending school. Ms. Hedges completed exemption forms for all three of them and delivered them to Investigator Newcomer's office on Burgess Road in Pensacola, Florida. Investigator Newcomer took the position that the exemptions for these people had not been established or filed based on her examination of agency computer records. The computer program or site failed to establish to her that the three individuals in question had established exemptions. Exemption status is triggered by compliance with Section 440.05, Florida Statutes (2008).1/ Tracie Hedges established with persuasive testimony that the exemption applications for the named three officers had been hand-delivered to the Burgess Road office of the Department of Financial Services. Janice Evers is a staff worker at that office. She testified that her research could neither confirm nor deny that the exemption applications were delivered to her office, but acknowledges their receipt by the Department. It must be concluded that the applications were delivered to the office on Burgess Road but were never forwarded to the Tallahassee office by Ms. Newcomer's or Ms.' Evers staff. Investigator Newcomer's business address is 610 East Burgess Road in Pensacola, the location where Ms. Hedges testified that the exemption applications were delivered. When the Department made a Discovery Request for Production of the Business Records of the Respondent, it required that those records be produced at that same business address in Pensacola, Florida. It is thus "an office of the Department" for purposes of Section 440.05(c), Florida Statutes (2008). Ms. Hedges established that the exemption applications were delivered during the 2005 calendar year although she was unable to provide an exact date of delivery. Ms. Evers acknowledges that fact in her testimony. The Stop-Work Order at issue in this case by statute can only date back as early as April 22, 2006. Even if the applications were delivered on December 31, 2005, the three officers in question would be exempt from workers' compensation coverage requirements prior to April 22, 2006, when the time period, or audit period, related to the Stop-Work Order began. It is determined that at least by January 30, 2006, exemptions had been established, by delivery at least 30 days prior thereto, for Bradley Hedges, Gregory Hedges, and Terri Kimberly Forret. It is found that the exemptions were shown by persuasive evidence to have been delivered during the 2005 calendar year. Inasmuch as they were "received" by the Department in 2005, then they would have become effective, by operation of law, on or before January 30, 2006, well before the effective date of the Penalty Assessment of April 22, 2006.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, dismissing the Stop-Work Order and Fourth Amended Order of Penalty Assessment, in its entirety. DONE AND ENTERED this 29th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 29th day of January, 2010.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact On May 23, 2005, Petitioner was hired by Respondent as a ready-mix concrete truck driver at Respondent’s Gainesville plant. Petitioner was a good employee. He had a clean driving record, and he did not have any disciplinary problems while working for Respondent. On or about July 27, 2007, Petitioner had a “mild” heart attack and was placed on medical leave by Respondent. In September 2007, Petitioner was released by his personal physician to return to work. Thereafter, Petitioner returned to work for a couple of days and began the process of being recertified for his driving duties. He reviewed safety materials and videos and did “ride- alongs” with other drivers. Before Petitioner could return to his driving duties, he was required by federal Department of Transportation (DOT) regulations to pass a physical and be certified as “physically qualified.” Recertification is required every 24 months and after an injury that impairs the driver’s ability to perform his/her normal duties, such as the heart attack suffered by Petitioner. Petitioner understood that he could not return to his job as a ready-mix concrete truck driver until he passed a physical and received his DOT certification. On September 12, 2007, Respondent sent Petitioner to a DOT-approved physician in Ocala for his physical. Petitioner did not pass the physical. The DOT-approved physician expressed concerns about Petitioner’s cardiac surgery, possible sleep apnea (based upon a questionnaire filled out by Petitioner), and blood pressure issues. There is no credible evidence that Respondent influenced the DOT-approved physician’s decision in any way. Petitioner’s suspicion that Respondent had something to do with the decision is unfounded. Petitioner’s personal physician disagreed with the concerns expressed by the DOT-approved physician, and after Petitioner underwent a series of tests, it was determined that he did not have sleep apnea. On November 9, 2007, Respondent laid Petitioner off based upon his “failure to meet job qualifications.” Petitioner was 48 years old at the time of the lay- off. There is no credible evidence that Petitioner’s age or medical condition played any role in Respondent’s decision to lay Petitioner off. Rather, the decision was based solely upon Petitioner’s failure to have the DOT certification that was required for him to drive a ready-mix concrete truck. Respondent gave Petitioner ample time to obtain his DOT certification before it laid him off. Approximately two months passed between the time that Petitioner was cleared to return to work by his personal physician and the time that he was laid off for not having his DOT certification. Petitioner did not obtain his DOT certification until some point in January 2008. Petitioner was treated no differently by Respondent than other drivers -- both older and younger than Petitioner -- who lost their DOT certification. Like Petitioner, those drivers were fired because they did not meet the applicable job qualifications. Petitioner testified that he was told that he would be rehired when he got his DOT certification. This testimony is corroborated by the comment on the Employee Separation Notice for Petitioner, which stated “Jesse has been unable to get his DOT card/when he does he will be rehired.” By the time Petitioner obtained his DOT certification in January 2008, Respondent’s business had declined due to the slow-down in the economy and the building industry, and it did not have any work for Petitioner. Respondent laid off three drivers at its Gainesville plant in December 2007, and it laid off an additional five drivers at the plant in February 2008 because of the decline in its business. Six of the eight drivers who were laid-off were younger than Petitioner. After these lay-offs, there were still three drivers employed at Respondent’s Gainesville plant who had less seniority than Petitioner, but in order to rehire Petitioner, Respondent would have had to fire one of those drivers. There were also a number of drivers still employed at Respondent’s Gainesville plant who were older and had more seniority than Petitioner. Respondent’s decision not to fire one of the other drivers in order to re-hire Petitioner was reasonable under the circumstances. And, more importantly, there is no credible evidence that this decision was motivated in any way by Petitioner’s age or a perceived disability based upon his heart attack. Respondent has not hired any drivers at its Gainesville plant since the lay-offs described above. Petitioner has not worked since he was laid off by Respondent. He testified that he has tried to find another truck-driving job, but that like Respondent, most companies are not hiring drivers because of the slow-down in the economy and the building industry. Petitioner would likely still be employed by Respondent if he had obtained his DOT certification before Respondent started laying off drivers because Petitioner was a good employee with more seniority than all but one of the drivers who were laid off in December 2007 and February 2008. Petitioner believes that Respondent could have put him to work in the warehouse or on the yard until he obtained his DOT certification and could return to driving duties. However, the record does not reflect whether any positions were available in the warehouse or on the yard or whether Petitioner was qualified for those positions. Petitioner testified that he was told by other employees that they overheard Respondent’s managers stating that they did not intend to return Petitioner to his driving duties because his heart attack made him a “high risk driver.” No evidence was presented to corroborate this hearsay-based testimony. Petitioner also testified that a supervisor made a critical comment to him regarding his use of a cane immediately after he returned to work. The supervisor denied making the comment, and even if the comment was made, there is no credible evidence that it was anything more than an isolated comment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 28th day of May, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 28th day of May, 2009.
Findings Of Fact Petitioner is male and Cuban. He is a member of a protected group and a qualified individual. Petitioner was employed by the Fleet Manager for Orange County, Florida in February, 1981, as a Mechanic I. He was later reclassified as a Mechanic II as part of an internal reorganization. Petitioner's duties require him to drive County vehicles to various locations to repair other County vehicles. The parties stipulated that Petitioner is a good mechanic and has always performed mechanical repairs competently. Orange County is a subdivision of the state. It employs a substantial number of people. The Fleet Manager maintains Orange County vehicles, operates and maintains the County's refueling system, and operates and manages emergency rescue vehicles and emergency generators for the County. The Fleet Manager is responsible for all personnel matters for County employees assigned to the fleet system. Mr. James Brock is the Fleet Manager who took the employment actions on behalf of Orange County that are the subject of this proceeding. Orange County employed Mr. Brock as a traffic engineer in 1987 and promoted him to Assistant Fleet Manager and Fleet Manager, respectively, in 1989 and 1992. Orange County and the Fleet Manager are referred to hereinafter as "Respondent." Respondent maintains a progressive discipline policy. Discipline progresses from counseling or verbal reprimand, to written reprimand, suspension, and then termination. The purpose of the progressive discipline policy is to make individual employees productive workers by modifying their behavior from inappropriate to appropriate behavior. The purpose of the progressive discipline policy is not to punish employees. Respondent prohibits discrimination, including that based on national origin. Respondent prohibits the implementation of its progressive discipline policy in a manner that discriminates against employees. Petitioner has a long history of discipline that began in his first year of employment. In November, 1981, Petitioner wrecked at least three vehicles. He received a written reprimand. In 1982, Petitioner ran over a battery charger. In 1985, after repeated warnings and notices, Petitioner was suspended for approximately three days for refusing to follow County policies. In 1991, Petitioner wrecked a County vehicle in an automobile accident with another vehicle driven by a member of the public. The truck driven by Petitioner was totally destroyed. The employment actions at issue in this proceeding began in April 1993. Respondent received information that Petitioner kept his County vehicle at his house on work days and used it for personal purposes, including hauling bricks to build a fence. Respondent convened a meeting with Petitioner, Petitioner's foreman, and an interpreter. Respondent and the foreman advised Petitioner that it was a violation of County policy to take a County vehicle home, to take the vehicle outside of the County where Petitioner resides, and to falsify work records. In September 1993, Respondent issued a written reprimand to Petitioner for threatening a co worker with Petitioner's vehicle. Respondent concluded that Petitioner drove his vehicle toward a co worker at a rapid speed and stopped just before impact. In October 1993, Respondent received repeated telephone calls from a third party that Petitioner was home during work days with his County vehicle. Respondent verified the reports with its own investigation and charged Petitioner with insubordination, taking a County vehicle home, and falsifying work records. Respondent conducted a predetermination hearing in accordance with due process requirements. Respondent notified Petitioner of his right to have a representative, attorney, or union steward present and to appeal any adverse determination. Petitioner attended the predetermination hearing. Both Petitioner and Respondent presented evidence including the testimony of witnesses under oath. The hearing was recorded. Respondent suspended Petitioner for four days without pay. In February 1994, Petitioner wrecked another County vehicle. He backed over a County lawn mower while backing his own vehicle out of the heavy equipment shop. Respondent counseled Petitioner after the incident. Petitioner does not have a good driving record. He has numerous speeding tickets. In August 1994, Respondent required Petitioner to attend a cultural awareness course. The course teaches cooperation among individuals from diverse cultural or ethnic backgrounds. Respondent requires all employees to attend the course. Petitioner argued with the instructors and refused to stay in the course. In September 1994, Respondent issued a letter of direction requiring Petitioner to attend the course. In September 1994, Petitioner took his County vehicle home again. Respondent counseled Petitioner for the violation and conducted an investigation that was still pending in October 1994. On October 14, 1994, Petitioner responded to a request for emergency repair of another County vehicle. Respondent drove his County vehicle recklessly and made an obscene gesture to another motorist. Petitioner followed the motorist up an access ramp on the East West Expressway at a speed of 35 40 mph, made an obscene gesture, and passed the motorist improperly. Petitioner followed the motorist at a distance of less than one foot. Petitioner then turned on the yellow warning lights on his County vehicle. When the motorist did not pull over and allow Petitioner to pass, Petitioner made an obscene gesture and passed the motorist while on the access ramp. The motorist pulled up beside Petitioner and wrote down the number of the vehicle. The motorist reported the incident to Respondent on the same day. Respondent investigated the incident and conducted a predetermination hearing on November 2, 1994. Petitioner participated in the predetermination hearing. Respondent terminated Petitioner on November 11, 1994. While Petitioner was employed by Respondent, Petitioner applied for promotion to Mechanic III approximately three times. Respondent never promoted Petitioner. Promotions are determined by a board composed of four mechanics who sit for a prescribed period and then are replaced by other mechanics. The mechanics are appointed to the board by management. The board is racially diverse. It typically includes Hispanics. The board conducts a separate interview of each candidate for promotion. The board members ask each candidate identical questions and score the responses from each candidate. The board then recommends the candidate with the highest score. The board never recommended Petitioner for promotion. Respondent has never deviated from the recommendation of the board. The candidates recommended by the board are racially diverse. They include Hispanics. Respondent has never taken any employment action against Petitioner on the basis of Petitioner's national origin. Respondent has never taken any employment action against Petitioner for a discriminatory reason.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner on the basis of his national origin. RECOMMENDED this 9th day of June, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1997 COPIES FURNISHED: Dana Baird, General Counsel Florida Commission On Human Relations Building F. Suite 240 325 John Knox Road Tallahassee, Florida 32399 0700 Sharon Moultry, Clerk Florida Commission On Human Relations Building F. Suite 240 325 John Knox Road Tallahassee, Florida 32399 0700 Peter T. Hickey, Esquire Post Office Box 1323 Orlando, Florida 32802 Jeffrey J. Newton, Esquire Orange County Attorney's Office Orange County Administration Center Post Office Box 1393 Orlando, Florida 32802 1393
