The Issue Whether proposed Rules 69O-175.003, 69O-170.005-007, 69O- 170.013, 69O-170.0135. 69O-170.014, 69O-170.0141, 69O-170.0142, and 69O-170.0155 are valid exercises of delegated rulemaking authority.
Findings Of Fact Section 20.05, Florida Statutes, addresses the structure and powers of the Department. Section 20.05 provides as follows, in pertinent part: 20.05 Heads of departments; powers and duties.-- (1) Each head of a department, except as otherwise provided by law, must: * * * (b) Have authority, . . ., to execute any of the powers, duties, and functions vested in the department or in any administrative unit thereof through administrative units . . . designated by the head of the department, . . . unless the head of the department is explicitly required by law to perform the same without delegation. * * * (e) Subject to the requirements of chapter 120, exercise existing authority to adopt rules pursuant and limited to the powers, duties, and functions transferred to the department. The Financial Services Commission (Commission) was created within the Department pursuant to Section 20.121, Florida Statutes. However, the Commission is not “subject to control, supervision or direction by the Department of Financial Services in any manner.” § 20.121(3), Fla. Stat. The Commission is composed of the Governor and Cabinet, who collectively serve as the agency head of the Commission. Action by the Commission can only be taken by majority vote “consisting of at least three affirmative votes.” Id. OIR is a structural unit of the Financial Services Commission. Section 20.121(3) states in relevant part, as follows: Structure.— The major structural unit of the commission is the office. Each office shall be headed by a director. The following offices are established: 1. The Office of Insurance Regulation, which shall be responsible for all activities concerning insurers and other risk-bearing entities . . . * * * * Organization.-- The commission shall establish by rule any additional organizational structure of the offices. It is the intent of the legislature to provide the commission with the flexibility to organize the offices in any manner they determine appropriate to promote both efficiency and accountability. Powers.— Commission members shall serve as the agency head for purposes of rulemaking . . . by the commission and all subunits of the commission. . . . (emphasis supplied) Clearly, under the Department’s, the Commission’s and the OIR’s organizational structures, only the Commission may promulgate rules for both itself and OIR. The Department does not have rulemaking authority over areas that have been given to the Commission. On the other hand, nothing in the statute prohibits OIR, as directed by the Commission, to perform steps, preliminary to proposing a rule, that often occur in the rule development process prior to the actual Notice of proposed rulemaking. See also § 120.54, Fla. Stat. To that end, the Commission, by non-rule policy, has delegated authority to OIR to engage in rulemaking activities on behalf of the Commission. However, this delegation is not limited to rule development activities that occur prior to the Notice of proposed Rules, but authorizes publication of the Notice prior to approval by the Commission of any proposed language or policy statement. As indicated, the Notices for the proposed Rules were published in the Florida Law Weekly in November 2004, with various changes made thereafter. The proposed Rules were published as OIR rules. Disturbingly and misleadingly, all the Notices for the proposed Rules state that the agency head approved the Rule that is the subject of the Notice on September 3, 2004 or November 2, 2004. However, none of the proposed Rules were approved by the Commission, the agency head, prior to their publication as a proposed rule in the Florida Administrative Weekly. The specific agency authority listed in the Notices for promulgating the proposed Rules was Section 624.308(1), Florida Statutes. Section 624.308(1) grants the Department of Financial Services (Department) and the Financial Services Commission (Commission) the general authority to adopt rules, pursuant to Sections 120.536(1) and 120.54 in order to implement laws that confer duties upon them. The statute does not confer the authority on the Office of Insurance Regulation (OIR) to adopt rules. See § 624.05, Fla. Stat. The statutes that confer a specific grant of rulemaking authority over the areas of the laws implemented in the proposed Rules are Sections 627.0651 and 627.331, Florida Statutes. These two statutes confer specific rulemaking authority over certain areas of insurance ratemaking only to the Commission; specific rulemaking authority is not granted to the Department or to OIR. Other than rulemaking authority, the various duties assigned in the laws implemented by proposed Rules are given to OIR.
Conclusions CHRISTOPHER P. LODENQUAI, D.D.S., hereinafter referred to as "Respondent", and the DEPARTMENT OF HEALTH, BOARD OF DENTISTRY, hereinafter referred to as the - "Department", hereby agree to present this Stipulation to Board of Dentistry, hereinafter referred to as “Board”, for their consideration and approval, STIPULATED FACTS 1. For all times pertinent herein, Respondent was a licensed in the State of Florida, having been issued license number DN 0013303. 2. Respondent was charged by Administrative Complaint (as amended) filed by the Department and properly served upon Respondent with a violation §466.028(1)(c), Florida Statutes. A true and correct copy of the Second Amended Administrative Complaint is attached hereto and made a part hereof by reference as Exhibit A. : 3. Respondent admits the matters of fact alleged in the Administrative Complaint attached hereto as Exhibit A but has presented to the Department substantial factors in mitigation of the charge. 4. The Second Amended Administrative Complaint mistakenly listed Respondent’s license nn ate te .''JAN 24 '81 10:00AM 517 INC, - P.dv? AY ee _ Bumber as DN 0013314 when in fact it is DN 0013303. For all purposes in this matter the correct license number will be applied. TE SI A 5. Respondent, in his capacity as a licensed dentist admits that in such capacity he is subject to the provisions of Chapters 466 and 455, Florida Statutes, and the jurisdiction of the , Department and the Board. 6. Respondent admits that the allegations of fact set forth in the Second Amended - Administrative Complaint constitute violations of Chapter 466, Florida Statutes, and/or the rules ‘ enacted pursuant thereto. STIPULATED DISPOSITION 7. The Respondent shall pay as administrative costs the sum of three thousand dollars _ ($3,000.00), which amount shall be paid by Respondent to the Executive Director of the Board of " Dentistry within sixty days of the entry of a Final Order accepting this Stipulation. 8. Respondent shall receive a reprimand in this matter. 9. Respondent shall complete twenty-five (25) hours of continuing education in areas to be determined by the Board in addition to those required for license renewal. Upon completion of ; said continuing education hours the Respondent shall be responsible for insuring that the provider submit verification of completeness of the courses to the Board of Dentistry. 10. Respondent shall be placed on one year of probation, dating from entry of a Final Order accepting this Stipulation, during which time he shall abide by all terms and conditions of this stipulation. . Respondent may apply to the Board for early termination of his probation upon 2 “JAN 24 °@1 18:22AM 517 INC, = P.Sv7 ’ . . ‘ completion of the monetary and continuing education provisions of this Stipulation. tl. [vis expressly understood that this Stipulation is subjéct to approval of the Secretary * for the Department of Health and ultimately the Board of Dentistry and has no force and effect "unless an order adopting it is entered by the Board. 12. Respondent agrees to be Present at the time of the Board's consideration of this . * Stipulation, and shall, under oath, answer any questions posed by Board members, counsel for the * Board and counsel for the Department. 13. It is expressly understood that a violation of the terms of this Stipulation shall be ; considered a violation of a Final Order of the Board of Dentistry, for which disciplinary action « may be initiated pursuant to Chapter 466, Florida Statutes. 14. It is expressly understood that this Stipulation is subject to approval of the Board and Department and has no force or effect until an Order is based upon it by the Board. 15. This Stipulation is executed by the Respondent for the purpose of avoiding further . administrative action with respect to this particular case. In this regard, Respondent authorizes , the Board to review and examine all investigative file materials concerning Respondent prior to or -. in conjunction with consideration of the stipulation. Respondent agrees to support this Stipulation atthe time it is presented to the Board and shall offer no evidence, testimony, or argument that : disputes or contravenes any stipulated fact or conclusion of law. Furthermore, should this * Stipulation not be accepted by the Board, it is agreed that the presentation and consideration of » this Stipulation and other documents and matters by the Board shall not unfairly or illegally * prejudice the Board of any of its members from further participation, consideration or resolution . of these proceedings. : 9545244169 _ «=> BAVOLBUSHSISCO _—_ ,, TEL=81327730091 01/24'01 10:59 “JAN 24 °@1 18:00AM 517 INC. oo P.6/7 | ’ Furthermore, in the event that the Board fails to approve this joint Stipulation and a proceeding pursuant to Section 120.57. Florida Statutes, is held, the Stipulation may not be * introduced into evidence. Should the hearing result in a finding that Respondent is guilty of the : alleged charges, Respondent hereby waives any defense to entry of a Final Order by the Board based upon the Board's consideration of this Stipulation. 16. The Respondent and the Department fully understand that this Stipulation and . Subsequent Final Order incorporating same will in no way preclude additional proceedings by the Board and/or Department against the Respondent for acts or omissions not specifically set forth-in , the Second Amended Administrative Complaint, attached hereto as Exhibit A, issued in this cause. 17. The Respondent waives the right to seek attomey’s fees and/or costs from the : ‘Department or Agency in connection with this disciplinary proceeding. 18. Upon the Board's adoption of this Stipulation, Respondent and Department expressly ’ waive all further procedural steps, and expressly waive all rights to seek judicial review of or to , otherwise challenge or contest the validity of the joint Stipulation of Facts, Conclusions of Law " and innposition of discipline, and the Final Order of the Board incorporating said Stipulation. Be SIGNED this JO fl, day Of gp Bevayey , 2008. CHRISTOPHER - LODENQUAI, D.D.S. ay Sworn to and subscribed before me this od day of » 2066- ar 4 “#\ KATHLEEN HALLETT 4) My Commision #CC 914504 Expires March 12, 2004 Prseermnsrtanl mete me nn ce ee _ a ee ere ee ee ne Sete + cemeeecnnmntneneet ete JAN 24 ’@1 18:80AM 517° NC. - Notary Public APPROVED this, 4 aay of , lA bn __, 2004. SECRETARY, Department pam et Pees P.?v?7 a a ee he me eee er at eT at ee ES ERI Me I ee ee i Rea STATE OF FLORIDA ‘RECEIVED - LEGAL DEPARTMENT OF HEALTH, PETITIONER, vs. CASE NUMBER: 94-0281 CHRISTOPHER P. LODENQUAI, D.M_D., RESPONDENT. ae ; "7 ee SECOND AMENDED ADMINISTRATIVE COMPLAINT COMES NOW, the Petitioner, Department of Health, hereinafter referred to as “Petitioner”, and files this Administrative Complaint before the Board of Dentistry against CHRISTOPHER P. LODENQUAI, D.M.D., hereinafter referred to as "Respondent", and alleges: . . 1. Petitioner is the state agency charged with the Tegulating the practice of dentistry pursuant to Section 20.43, Florida Statutes; Chapter 455, Florida Statutes; and. Chapter 466, Florida Statutes. Pursuant to the authority of Section 20.43 (3) (), Florida Statutes, the Petitioner has contracted with the Agency of Health Care Administration to provide consumer ~~ complaint, investigative, and prosecutorial services required by the Division of Medical Quality 1 Assurance, councils, or boards, as appropriate. 2. Respondest is, and has deen at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 9013314. : Respondent’ s last known address is 207 Howard Drive, Belleair Beach, Florida 33786. 003014 fo ‘d GEER ON WHIt sb tht cpt yaw vee 01 3. On or about July 2, 1997, the Respondent entered a plea of nolo contendere to two (2) counts of conspiracy to commit Medicaid provider fraud in case number 96-1745-CM9 in the Leon County Circuit Court. 4. Based on the foregoing, the Respondent's license to practice dentistry in the State of Florida is subject to discipline pursuant to Section 466.028 (1)(c), Florida Statutes, for being convicted or found guilty of or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of dentistry. 003015 “4 BEEBE ON ‘ WIESB IQUZ cptoaey ~ WHEREFORE, Petitioner respectfully requests the Board of Dentistry enter an order imposing one or more of the following penalties: revocation or suspension of the Respondent's license, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board deems appropriate. . SIGNED this Wh day of ark 1999, Robert G. Brooks, M.D. Secretary, Department of Health BY: NdnocyM.S Chief Attorney oe, Agency for Health Care Administration COUNSEL FOR PETITIONER: Fi LED ; RTMENT-OF HEALTH . ory W. me Counsel DEPA EPUTY CLERK r Attorney Contract Counse’ . poh ‘i : Agency for’Health Care CLERK 9. Administration ae pate_4- IA-T___ Post Office Box 14229 . ; Tallahassee, Florida 32317-4229 , (904) 414-1981 - GWF/mt PCP: F.G.& WR. DATE: January 24, 1998 603016
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaints are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged, pursuant to Chapter 465, Florida Statutes (2006), with regulation of the practice of pharmacy. At all times material to this case, the Respondent was a licensed pharmacist in the State of Florida, holding license number PS 26142. On May 3, 2005, a Final Order (DOH-05-0782-S-MQA) was filed based on the stipulated resolution of disciplinary proceedings initiated against the Respondent by the Petitioner in DOH Case Nos. 2002-27092 and 2002-25746. The Final Order imposed a suspension of the Respondent's license as follows: Respondent's license to practice pharmacy shall be suspended until such time as Respondent petitions and appears before the Board and can demonstrate that he is able to practice pharmacy with skill and safety to patients. Proof of his ability to practice safely shall include an evaluation of respondent by the Professional Resources Network (PRN) and a recommendation from PRN to the Board that Respondent can practice pharmacy with reasonable skill and safety to patients. The Final Order imposed a probationary period as follows: Upon the termination of suspension of Respondent's license, Respondent's license shall be placed on probation concurrent with the PRN contract or three (3) years whichever is longer. If, after completing an evaluation of Respondent, the PRN deems it necessary for Respondent to execute a contract for supervision and/or treatment, the three-year probationary period shall run concurrent with the PRN's contract. During the period or probation Respondent shall be subject to the following terms and conditions: Respondent or his employer shall submit written reports to the Compliance Officer at the Board office. The written reports shall contain Respondent licensee's name, license number, current address and phone number; current name, address and phone number of each pharmacy in which Respondent is engaged in the practice of pharmacy; the names of all pharmacists, pharmacy interns, pharmacy technicians, relief pharmacists, and prescription department managers working with the Respondent. These reports shall be submitted to the Compliance Officer every three (3) months in a manner as directed by the Compliance Officer. * * * Respondent shall submit documentation evidencing that his employer, or if employed as a relief pharmacist, his supervision pharmacists(s) and the relief agency, have been provided with a copy of the Final Order describing these probationary terms within ten (10) days of the entry of the Final Order or upon initiation of employment. Respondent shall ensure that his employer or, if employed as a relief pharmacist, the supervising pharmacist at each pharmacy at which the Respondent works, submits written reports to the Compliance Officer for the Board of Pharmacy. These reports shall contain: the name, current address, license number, and telephone number of each pharmacy intern, pharmacy technician, relief pharmacist, and prescription department manager working with the Respondent in the prescription department; a brief description of Respondent's duties and responsibilities; and Respondent's work schedule. These reports shall be submitted by the employer to the Compliance Officer every three (3) months in a manner directed by the Board. The Final Order imposed an administrative fine of $2,000. In the stipulation for settlement of the disciplinary cases, the assessment of costs was addressed as follows: Respondent agrees to reimburse the Department for any administrative costs incurred in the investigation, prosecution, and preparation of this case, not to exceed eleven thousand dollars ($11,000). The total amount of the costs will be assessed at the time the stipulation is presented to the Board. The fine and costs are to be paid by the Respondent . . . within sixty (60) days of the filing of a Final Order accepting and incorporating this Agreement. The copy of the stipulation admitted into evidence at the hearing included a handwritten notation related to the time for payment of the fine and costs and appears to indicate that the 60-day deadline for payment was extended to six months. The source of the handwriting was unclear; but in any event, the Final Order adopted the agreed stipulation and assessed costs of $10,852.66. The Final Order extended the deadline for payment of the costs to six months from the date of the Final Order, but did not specifically reference the deadline for payment of the administrative fine. The evidence establishes that both the fine and the assessed costs were to be paid within six months of the date of the Final Order, or by November 2, 2005. The evidence establishes that the Respondent paid neither the fine nor the assessed costs by the November 2, 2005, deadline. There is no evidence that the Respondent has made any attempt to pay any portion of the financial penalty, and the $12,852.66 remained unpaid at the time of the administrative hearing. The Respondent's suspension was lifted pursuant to an Order of Reinstatement filed June 28, 2005, at which time the probationary period began. According to the Respondent's Responses to the Petitioner's First Request for Admissions, the Respondent was placed by "Healthcare Consultants" to work in relief status at the Winn-Dixie #736 pharmacy and at the Winn-Dixie #741 pharmacy for a total of five days during the month of August 2005. According to the terms of the stipulation as adopted by the Final Order, the Respondent's first quarterly report was due three months following the beginning of the probationary period, or approximately September, 28, 2005. Cheryl Sellers, a compliance officer for the Petitioner, was assigned the responsibility of monitoring the Respondent's compliance with his obligations under the May 3, 2005, Final Order. The Respondent had several extended telephone conversations with Ms. Sellers shortly after the Respondent's probationary period began. During the conversations, the specific disciplinary requirements of the stipulation and Final Order were discussed at length. Additionally, in 1997, the Petitioner had incurred a substantially similar penalty, including a suspension, a fine, and compliance with quarterly reporting requirements. It is reasonable to presume that the Respondent was aware of, and understood, his obligations under the May 3, 2005, Final Order. As was her standard practice, Ms. Sellers sent a package of information to licensees with disciplinary restrictions, including various forms, related to compliance with requirements set forth by Final Orders. The package was mailed by regular mail to the Petitioner on August 4, 2005; but for reasons unknown, the information was not delivered to the Respondent and was returned to the Petitioner by the postal service. The package was not re-mailed to the Respondent until October 12, 2005. The Respondent filed his quarterly reports on October 19, 2005, several weeks after the deadline had passed. Apparently the first Employer's Quarterly Report was completed by an individual identified as Robert Miller, presumably employed by Healthcare Consultants, an otherwise unidentified entity which supposedly placed the Respondent in the Winn-Dixie pharmacies for the August 2005 employment. Mr. Miller was not the pharmacist in charge of the Winn-Dixie units where the Respondent had been employed. By letter dated October 21, 2005, Compliance Officer Cheryl Sellers notified the Respondent that he was "not in compliance" with the May 3, 2005, Final Order and stated as follows: Guidelines for submitting Employer Quarterly Reports were sent to you on October 12, 2005, the Employer's Quarterly Report from Robert Miller received on October 19, 2005, is not acceptable. Efren Rivera the PDM at the Winn Dixie store #736 is the appropriate person to complete this form. [sic] The Employer's Quarterly Report subsequently submitted by Efren Rivera was dated and notarized on November 1, 2005, and was filed thereafter. The Respondent filed for Chapter 7 bankruptcy in late 2005 and was discharged from debt on January 31, 2006. The Respondent has asserted that his obligation to pay the administrative fine and assessed costs was discharged through the bankruptcy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Pharmacy, enter a final order directing that the Respondent pay a total of $16,352.66, to the Petitioner. The total reflects the $12,852.66 imposed by the May 3, 2005, Final Order and the additional $3,500 penalty related to the violations set forth herein. Additionally, the final order should extend the Respondent's current probationary period by 18 months to be served consecutively to the current probationary period. DONE AND ENTERED this 10th day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 10th day of August, 2007. COPIES FURNISHED: Patrick L. Butler, Esquire Billie Jo Owens, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Denis R. Bousquet 5125 Cedar Springs Drive, Unit 203 Naples, Florida 34110 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Rebecca Poston, R.Ph., Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way, Bin C04 Tallahassee, Florida 32399-1701
The Issue Whether Respondents violated the statutes and rules alleged in the Second Amended Administrative Complaint; and, if so, what is the appropriate penalty to be imposed against Respondents.
Findings Of Fact OFR is the state agency charged with administering and enforcing chapter 560, Florida Statutes, including part II related to money services businesses. At all times material hereto, Payservices has been a foreign corporation and part II licensee pursuant to chapter 560, specifically a "money services business," as defined in section 560.102(22), and "money transmitter," as defined in section 560.102(23).4/ At all times material hereto, Mr. Danenberg has been the chief executive officer, compliance officer, and an owner of Payservices. As such, Mr. Danenberg is an "affiliated party" and a "responsible person" as defined in sections 560.103(1) and 560.103(33). Count I Licensees, such as Payservices, are required to annually file a financial audit report within 120 days after the end of the licensee's fiscal year. The financial audit report is prepared by a certified public accountant and is used to demonstrate to OFR that the licensee has the financial health to conduct its business and transmit funds within the State of Florida. Payservices' fiscal year ends December 31st. Respondents were required to provide Payservices' 2016 financial audit report to OFR by no later than May 1, 2017. On December 20, 2017, William C. Morin, Jr., OFR's Chief of the Bureau of Registration, contacted Payservices by email with regard to Payservices' failure to timely file a financial audit report within 120 days after the 2016 fiscal year ended. Mr. Danenberg responded by email that same day, telling Mr. Morin that Payservices' accountant had prepared a financial audit report "many months ago," and that it was his "impression" that it had been uploaded to the REAL system "at some point when we filed the quarterly reports." Mr. Danenberg attached to his December 20, 2017, email what OFR accepted as the financial audit report that same day. Notably, the document indicated it was prepared by a certified public accountant on June 15, 2017, after the May 1, 2017, deadline. In any event, Mr. Morin reviewed the REAL system regarding Payservices and determined there were no problems with the REAL system's ability to accept uploaded documents. Mr. Morin testified that he could see on the REAL system that Payservices successfully uploaded a quarterly report and Security Device Calculation Form on January 26, 2017, which created a transaction number. Mr. Morin also observed that Payservices started to upload its financial audit report, which would create a transaction number, but no financial audit report was actually attached and uploaded to the REAL system on January 26, 2017, under that transaction number. According to Mr. Morin, Payservices may have attempted to start to file a financial audit report on January 26, 2017, but it did not complete the transaction because no financial audit report was attached. At hearing, Mr. Morin acknowledged that: "When I looked at the Financial Audit Report transaction, nothing was attached. And I also know that the functionality of the REAL system will kind of allow for the transaction to be completed and nothing attached." Tr. p. 100. Mr. Morin testified that Mr. Danenberg was cooperative when he was contacted on Decemeber 20, 2017, and submitted the financial audit report. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondents did not submit their financial audit report to OFR until December 20, 2017, almost eight months after the May 1, 2017, deadline. Count II Licensees, such as Payservices, are required to annually file Form OFR-560-07, Security Device Calculation Form, by January 31st of each calendar year for the preceding calendar year. The Security Device Calculation Form requires licensees to report to OFR the dollar amount of transactions with Florida consumers. The dollar amount of transactions identified in the form is then utilized by OFR to determine if additional collateral is necessary to protect Florida consumers in the event a claim is made against the collateral for monies that were not properly transmitted by the licensee. Andrew Grosmaire, OFR's Chief of Enforcement in the Division of Consumer Finance, acknowledged at hearing that a licensee has 60 days to amend the face value of its surety bond, should an increase be required, and that at all times material hereto, the value of Payservices' surety bond has been correct for the minimum amount required. Nevertheless, Mr. Morin testified that Respondents did not file Form OFR-560-07, Security Device Calculation Form, until February 10, 2018, ten days late. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondents did not file Form OFR-560-07, Security Device Calculation Form, until February 10, 2018, ten days late. Count III Licensees, such as Payservices, are required to update information contained in an initial application form, or any amendment to such application, within 30 days after the change is effective. In Payservices' initial application dated September 25, 2015, Respondents identified Corporate Access, Inc., as its registered agent with an address for service of process at 236 East 6th Avenue, Tallahassee, Florida 32303. According to the Department of State, Division of Corporation's records, on January 10, 2017, Mr. Danenberg was appointed as Payservices' registered agent with a new address for service of process at 300 West Palmetto Park Road, A210, Boca Raton, Florida 33432. Respondents filed an amended license application with OFR on August 28, 2017, which still listed Corporate Access, Inc., as the registered agent for service of process. On February 26, 2018, Respondents amended their registered agent information with the Department of State listing a new address for Mr. Danenberg at 14061 Pacific Pointe Place, No. 204, Delray Beach, Florida 33484. Mr. Morin testified that at no time have Respondents updated their initial application with OFR to reflect Mr. Danenberg as the registered agent for Payservices and his address as the registered agent.5/ Mr. Morin and Mr. Grosmaire testified that the reason a licensee needs to update a change in the registered agent's name and address is so that OFR may effectuate service of process against the licensee. Yet, Mr. Grosmaire acknowledged that OFR has access to the Division of Corporation's records. Nevertheless, the persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondents did not update their initial application with OFR to reflect Mr. Danenberg as the registered agent for Payservices and his address as the registered agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that OFR impose an administrative fine against Respondents in the amount of $6,000. DONE AND ENTERED this 16th day of December, 2019, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 16th day of December, 2019.
The Issue May Petitioner be granted credit for Questions 11, 12, and 18 on his February 1989 Certified General Contractor Examination so as to be considered to have successfully passed the examination?
Findings Of Fact Petitioner sat for the certified general contractors' examination on February 18, 1989. Petitioner has passed two parts of the examination, but scored 65 on the part of the examination containing the three challenged questions which serve as the basis for the appeal. The Petitioner requires a score of 69.01 to pass the third part of the examination. Petitioner timely and properly challenged the grading of three examination questions for which he received no credit, to wit: Questions 11, 12, and 18 in Test Booklet GC 421-0749. Petitioner alleged that his answers to Questions 11 and 12, which had been marked incorrect, were equally correct with those selected as correct by Respondent. He also contended that the network drawn in the critical path method which formed the reference point for each of these questions was so illegible, due to labelling of the network diagram, that no ore, including Petitioner, could have been expected to successfully complete it in the timeframe allotted. Additionally, he contended that his answer of "B" to Question 18, amounting to $6642 should be counted correct, the same as Answer A which amounted to $6400 because Petitioner's answer amounted to only a few dollars more than the answer Respondent designated as correct. With regard to the illegibility issue, Petitioner did not object to legibility at any time during the course of the examination itself, nor did he fill out a comment form at the time of turning in his examination or claim to have a defective test booklet at those times. He did, however, later challenge legibility as to the specified questions, and he has been permitted to present evidence of lack of legibility on that basis. Apparently, Petitioner's concern was based on a misunderstanding that certain letter-number configurations in Questions 11 and 12 could be used more than once, when, in fact, each could be used only one time. He did not understand that letters appear always above a line while numbers always appear below a line and that based on the legend, some of his interpretations of component parts of the diagram could not have logically occurred. Petitioner also thought some numbers and/or letters could be repeated and so became confused. As a result, he worked some problems presented by the diagram incorrectly. These interpretations, as opposed to lack of a legible diagram, appear to have accounted for his mistakes. Also, George Bruton, who was qualified as an expert on the requirements of certified general contractors in Florida, was able to correctly answer Questions 11 and 12 without utilizing those symbols the Petitioner stated were illegible. Therefore, it must be concluded that the quality of the diagram did not prevent the Petitioner from correctly answering the questions. Question 18, a multiple choice question, required the Petitioner to estimate the cost of construction for a perimeter fence built with certain materials. The Petitioner utilized materials not included in the question and his perimeter did not accomplish the goal set by the problem. Among other problems, the Petitioner used six corner posts instead of four corner posts. Therefore, he answered the question incorrectly. Under this set of circumstances, Petitioner's dollar amount answer in excess of the correct answer also is clearly incorrect and not subject to "rounding off" simply because it is "close." Questions 11, 12, and 18 are each worth 4 points. Petitioner failed to demonstrate his entitlement to have his score of 65 raised above 65 by 4 (69), 8 (73), or 12 (77) points respectively.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Professional Regulation enter a final order continuing to keep sealed the exhibits herein, finding that Petitioner abandoned his challenges to all questions except Questions 11, 12, and 18 of Test GC 421-0749, denying Petitioner's challenge to the foregoing questions, and denying a raise in the test score therefor. DONE and ENTERED this 22nd day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4098 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1 and 2 are rejected as not supported by the record. 3 is accepted but immaterial to the facts ash found and issue raised herein. Respondent's PFOF: 1 is subordinate and a conclusion of law 2, 3, 4, 5, 6, 7, and 8 are accepted. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Edward K. Fewox, Jr. 3924 Wormwood Circle Jacksonville, Florida 32210 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth D. Easley General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues for disposition in this case are whether Respondent committed willful violations of section 106.07(7), Florida Statutes (2014), when its campaign treasurer failed to notify the filing officer that Respondent had not received funds, made contributions, or expended reportable funds during four 2014 reporting periods; and, if so, whether Respondent is subject to civil penalties in view of the holding in PAC for Equality v. Department of State, Florida Elections Commission, 542 So. 2d 459 (Fla. 2d DCA 1989).
Findings Of Fact Petitioner is the entity responsible for investigating complaints and enforcing Florida's election and campaign financing laws, chapters 104 and 106, Florida Statutes. § 106.25, Fla. Stat. Respondent is a political committee organized for the purpose of sponsoring and supporting a constitutional initiative to conserve and protect Florida’s scenic beauty, which is primarily directed to restrictions on billboards along Florida highways. Respondent has been a registered political committee since 2002. Prior to 2014, Respondent suspended its campaign to gather petitions to place the constitutional initiative on the ballot. Respondent has not abandoned the campaign, and the initiative remains legally active. Prior to 2014, Respondent’s most recent financial activity was an expenditure of $61.25 in the first quarter of 2011. Respondent’s assets during 2014 consisted of $157.50 held in a bank account. There were no contributions received or expenditures made by Respondent during the times pertinent to this proceeding. Respondent’s treasurer is Mr. Crescimbeni. Mr. Crescimbeni acknowledged his responsibility as treasurer to accurately report to the Division of Elections the contributions received and expenditures made by Respondent, and the dates of each. The reporting requirements were contained in a political committee handbook and copy of the Florida statutes that are provided by Petitioner to all political committees. Mr. Crescimbeni acknowledged having received and read both documents. Although some reporting requirements have changed since Mr. Crescimbeni’s receipt of the political committee handbook, Mr. Crescimbeni believed that he understood the reporting requirements. Mr. Crescimbeni understood that, since Respondent neither received contributions nor made expenditures, the requirement to submit a treasurer’s report was statutorily waived, though there was a requirement to notify the filing officer that a report was not being filed. In 2013, section 106.07 was amended, creating 33 reporting periods for calendar year 2014, significantly more than existed prior to the amendments. Ch. 2013-37, § 9, Laws of Fla.3/ Reports for the 33 reporting periods in 2014 were statutorily waived pursuant to section 107.07(7), inasmuch as there were no contributions or expenditures. Notifications of no activity were filed for each of the 33 reporting periods in 2014, all of which were timely, except the four identified in the Order of Probable Cause. The M5 Filing Period The notification of no activity for the 2014 M5 reporting period of May 1 through May 31, 2014, was due by midnight on June 10, 2014. The notification of no activity for the 2014 M5 reporting period was filed on Saturday, June 14, 2014, at 11:50:59 a.m. On the morning of Saturday, June 14, 2014, Mr. Crescimbeni picked up Respondent’s mail from the post office. He then traveled to his office, where he opened the mail. Among the items received was a notice from the Division of Elections advising Respondent that its M5 report had not been received by the filing deadline. The letter was dated June 11, 2014, and bore a postmark of June 12, 2014. When Mr. Crescimbeni realized his error, he immediately uploaded the report of no activity at 11:50 a.m. on the morning of June 14, 2014. Mr. Crescimbeni testified credibly that “[m]y delayed filing of the M5 notification of no activity was neither deliberate nor a repeated failure. It was simply an oversight and nothing more.” The P1 Report The notification of no activity for the 2014 P1 reporting period of June 1 through June 20, 2014, was due by midnight on Friday, June 27, 2014. The notification was filed on Saturday, June 28, 2014, at 9:34:11 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the PI notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. The G1 Report The notification of no activity for the 2014 G1 reporting period of August 23 through 29, 2014, was due by midnight on Friday, September 5, 2014. The notification was filed on Saturday, September 6, 2014, at 3:52:33 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the GI notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. The D2 Report The notification of no activity for the 2014 D2 reporting period of October 25, 2014, was due by midnight on Sunday, October 26, 2014. The notification was filed on Monday, October 27, 2014, at 10:12:15 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the D2 notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. As to each of the four notifications of no activity referenced above, Mr. Crescimbeni credibly testified that the delay was: [T]he result of my temporary inattention and each such delay was a simple and inadvertent omission on my part that was promptly remedied . . . . I was never indifferent to the required filings of notifications of no activity. Each such delay by me in making such filing of said notification was not intentional. Each such delay was not deliberate, purposeful, or with any intent or consciousness on my part to avoid the notification of “no” activity. Mr. Crescimbeni’ testimony is accepted. There was no evidence adduced at the hearing suggesting there to have been any financial or political advantage or benefit that could reasonably be derived from the late filing of the four notifications of no activity referenced above. The Commission does not investigate willfulness and does not make a finding of willfulness until after the determination of probable cause in a Probable Cause Hearing.
Findings Of Fact 1. The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated by reference as modified by Rulings on Respondent’s Exceptions noted above. 2. There is competent, substantial evidence to support the Findings of Fact.
Conclusions Based upon the foregoing findings of fact and conclusions of law, it is Ordered that Petitioner’s challenge to the licensure examination taken December 6, 2000, is Denied and his petition is Dismissed. This order takes effect upon filing with the Clerk of the Department of Health. Done and Ordered this ( , day of , 2002. BOARD OF PODIATRIC MEDICINE
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Department of Health and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal. That Notice of Appeal must be filed within thirty days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Certified Mail to Charles Pellegrini, Katz, Kutter, Alderman, Bryant & Yon, P.A., 106 E. College Ave., Suite 1200, Tallahassee, FL 32301, and Perry Verleni, 7624 S.W. 56th Avenue, Gainesville, FL 32608, and by interoffice mail to Cherry Shaw, Department of Health, 4052 Bald Cypress Way, Tallahassee, FL 32399-1783, Ella Jane P. Davis, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060, and to Ann Cocheu, Office of the Attorney General, PL 01 The Capitol, Tallahassee, FL 32399-1050, this IS. day of "\ , 2002. LE qlee F.\Usens\ ADMIN\WILMA\ Ann \pod\000208d.wpd
The Issue The issues in these consolidated cases are: (1) whether the Respondent should award Project/Job No. 15030-2531, RFP No. DOT-90/917002-RA to the Petitioner or to John C. Putnam; (2) whether the Respondent should award Project/Job No. 15010-2540, RFP No. DOT-90/91-7003-RA to the Petitioner or to George A. Cuddeback; and (3) whether the Respondent should award Project/Job No. 26090-2522, RFP No. RFP-DOT-2-90-003, to the Petitioner or to Richard S. Hale.
Findings Of Fact On or about October 19, 1990, the Respondent, the Department of Transportation (DOT or Department), requested proposals for appraisal services in connection with the condemnation of road right of way. Three of the requests for proposals are identified as follows: (1) in District VII, Project/Job No. 15030-2531 (State Road 686, East Bay Drive, Missouri Avenue to East of Highlands, Pinellas County), RFP No. DOT-90/917002-RA, hereafter referred to as RFP 7002 ; (2) also in District VII, Project/Job No. 15010-2540 (State Road 686, West Bay Drive, Missouri to Second Avenue, Pinellas County), RFP No. DOT-90/91- 7003-RA, hereafter referred to as RFP 7003; and (3), in District II, Project/Job No. 26090-2522 (State Road 24, Archer Road, Alachua County), RFP No. RFP-DOT-2- 90-003. The DOT has been decentralized to the extent that each district handles requests for proposals for work within its geographical boundaries. The central office in Tallahassee, establishes general procedures for the districts to follow, provides support services and makes suggestions but does not always require that its suggestions be followed, leaving that for the districts to decide, along with the description of the scope of the work and other aspects of the process. In the requests for proposals (RFPs) in issue in this case, both District VII and District II followed the general procedures of selecting an appraisal service from among the respondents to the RFPs by scoring the respondents on price and other criteria designed to rank the quality of the appraisal service offered. With one exception, the point system and criteria are the same for all three RFPs in issue in this case. In all three cases, evaluation of the responses to the RFPs was done by a three-member committee that included the district appraisal contracts administrator. District VII provided that proposals had to be submitted by November 16, 1990, for evaluation and posting of evaluation results on November 26, 1990. District II provided that proposals had to be submitted by November 19, 1990, for opening on November 20, 1990. The Petitioner, D. J. Leggate Appraisal Service, Inc. (Leggate), submitted responses to all three of the RFPs. All of the contracts were awarded to an RFP respondent other than Leggate. On RFP 7002, Leggate received a score of 37.44 out of a possible maximum score of 60, the third highest score; the successful bidder, John C. Putnam, received a score of 45.33. On RFP 7003, Leggate's score was 39.52 out of 60, again the third highest score; George Cuddeback was awarded this contract with a score of 47.14. On the Alachua County RFP, Leggate's score was 33.01 out of a possible maximum score of 55, only the sixth highest scorer out of eight respondents; Richard S. Hale was the successful bidder with a score of 42.66. The Petitioner made some general claims, and presented some evidence in an attempt to prove, that the criteria and scoring system were too subjective. But the evidence did not prove that the criteria and scoring system were so subjective as to be facially arbitrary. The DOT witnesses adequately explained the criteria and scoring system. Although some of the criteria were not susceptible to completely objective evaluation, even those criteria established specific enough standards to ascertain that the evaluations were not done in a generally arbitrary fashion. Except as referenced in Finding 6, the Petitioner did not attack the scores given to Putnam, Cuddeback or Hale. Instead, the Petitioner attempted to prove that the Petitioner should have received higher scores. One ground argued in support of the Petitioner's case that it should have received higher scores was that higher scores should have been given under some of the criteria pursuant to F.A.C. Rule 14-95.003. But F.A.C. Chapter 14- 95 sets out criteria for the evaluation of appraisers to determine whether they are minimally qualified to do work for the DOT. Appraisers not qualified under Chapter 14-95 to do work for the DOT would be precluded from responding to the RFP. But Chapter 14-95 does not to purport to undertake to rank the relative qualifications of appraisers to determine which appraiser's RFP response should be selected. None of the RFPs state that Chapter 14-95 applies to the evaluation under the RFP criteria. The RFP criteria stand alone and apart from Chapter 14-95. Under the heading "Selection Process," each RFP contains a criterion entitled "Education." The criterion states in part that respondents would be given three points for having a college or university degree with a major related to real estate appraisal and one point for having a degree with any other major. Putnam got one point under this criterion for a B.A. degree in science and engineering; Cuddeback got one point for a B.A. degree in arts; Hale got two points. 1/ Leggate, in the person of its principal, Donald J. Leggate, does not have a college degree. But, in part, unjustifiably relying on Chapter 14-95, Leggate contends that his years of experience in the field should be considered to be the equivalent of a college degree. But Leggate is not entitled to points under this part of the criterion. He clearly does not have a college or university degree. The RFP does not provide for the substitution of work experience for a college or university degree; to the contrary, the RFPs contain a separate criterion under which scores are given for work experience. Whether or not any particular appraiser with a degree is better than any particular appraiser without one, awarding points separately for a college or university degree is legitimate as part of a rational attempt to differentiate the qualifications of the respondents. Under the heading "Education," respondents also were given points for hours of appraisal training in the past three years--three points for 45 or more hours, two points for 30-44 hours, and one point for 10 to 29 hours. Putnam, Cuddeback and Hale got three points each. Leggate had 35 hours and received two points. He did not and could not prove that he was entitled to more. Whether or not any particular appraiser with 45 or more hours of recent appraisal training is better than any particular appraiser with less recent training, awarding points for recent training is legitimate as part of a rational attempt to differentiate the qualifications of the respondents. Although it would seem to make sense for teachers of appraisal training courses to be able to claim or be awarded "bonus" hours for teaching courses, as the Petitioner seems to argue, the Petitioner's evidence that he has taught appraisal training courses at some unspecified point in the past does not entitle him to more points. It was not clear how much of his teaching, if any, was within three years. Under the criterion entitled "Appraisal Experience (maximum points possible, 15)," RFP respondents were given between 10 and 15 points if they had more than five years experience in either eminent domain or single-family experience. The evaluators in District VII gave Leggate a maximum score of ten, while Cuddeback got only eight, and Putnam got only six; in District II, Leggate got 9.67 (the average of the two tens and one nine given by the three evaluators), and Hale got a ten. The Petitioner did not prove why a score of 9.67 was an inaccurate assessment of his appraisal experience in comparison with Hale and the other respondents to the Alachua County RFP. (Their responses to the RFP are not in evidence.) The Petitioner's argument that its score of ten in the District VII evaluations demanded the same score in the District II evaluation does account for possible differences among the competing respondents and is rejected. Under the "Appraisal Experience" criterion, up to five points also were available for "demonstrated expertise in complex/unusual appraisal problems." Putnam, Cuddeback and Leggate all got three as their score in District VII; in District II, Leggate got 3.67, and Hale got 3.33. Again, Leggate contended that it should have been given the highest possible score based on its principal's experience, but the responses to the RFPs were not in evidence, and the Petitioner did not prove why the scores it got were inaccurate assessments of its appraisal experience in comparison with the other respondents. The next criterion to which the Petitioner objects is entitled "Performance (maximum points possible, 9) . . . Past performance for DOT as indicated by Appraiser Performance Evaluations . . . (An appraiser with no prior DOT evaluation shall be rated 'Acceptable.')" Following the suggestion of a memorandum from DOT's central office in Tallahassee, both District VII and District II scored this criterion on the following scale: Outstanding, 9; Good, 5; Acceptable, 0; Poor, but correctable, -5; and Unacceptable, -9. But then the two districts' methodologies diverged. District VII also followed the central office's suggestion that this criterion be based upon the new statewide performance ratings. Before, districts gave RFP respondents a score based either on the district's own rating system or on the old statewide system. As late as May, 1990, District VII gave Leggate a score of 9 based on its own rating system that only took District VII work into account. 2/ The new statewide rating system was based on work done for the DOT, in any district, but only since October 1, 1989, with a score of zero ("acceptable") given to any respondent with no DOT work since October 1, 1989, unless submission of a demonstration appraisal report warranted a higher (or, presumably, a lower) score. The DOT central office memorandum also suggested that, if the new rating system is used, the RFPs should notify respondents of the change. District VII did not follow that suggestion. Instead, it relied on a mass mailout to appraisers on its mailing list, as well as verbal advice imparted at various conferences, to advise prospective bidders of the new rating system and the demonstration appraisal report option. The evidence was that, at some point in time, probably in the spring of 1990, the Petitioner received notice of the new statewide rating system and the demonstration appraisal report option. Leggate did not have DOT work after October 1, 1989, and did not submit a demonstration appraisal report with his response. Using the new statewide rating system, District VII gave Leggate a zero. Putnam and Cuddeback each got a five. Putnam got his five points by submitting a demonstration appraisal report. Leggate claims that it should have gotten a nine, the same score it got on this criterion in May, 1990. If it had, it would have been the highest scoring respondent on both of the District VII RFPs. On the other hand, District II chose not to follow the DOT central office memorandum's suggestion, believing it not to be fair or accurate to give appraisers who had high ratings in prior years a zero score, for merely "acceptable," just because they did not have DOT work after October 1, 1989. District II felt this was especially unfair because not much DOT appraisal work had been available after October 1, 1989, and many good appraisers who submitted responses to the Alachua County RFP would lose a high rating through nothing reflecting adversely on them or their ability. (District II apparently did not feel the "demonstration appraisal report" option adequately addressed the perceived unfairness.) District II decided to score the respondents to its RFP based on their rating in the out-of-date statewide rating system. Using this system, both Leggate and Hale got a five. 3/ On September 26, 1990, Leggate inquired of DOT's District I office in Bartow as to his performance rating and was told by letter dated September 29 that Leggate had no rating in District I but that his statewide rating was 15. The evidence was that this rating of 15 was on a different scale than the -9 to +9 scale used in the RFPs and would equate to a five on the RFP scale. One can surmise that this rating may have been based on the same out-of-date statewide rating that District II used, but the source and meaning of the rating is not clear from the evidence. It is not inherently illogical or arbitrary for District VII to score respondents differently than District II did on this criterion of the RFPs. Since the work is being procured and contracted by and for the districts, it is "appropriate" for the DOT to allow the districts the discretion to choose whether to use their own rating system or to use the statewide rating system. At the same time, the Petitioner did not prove facts on which the DOT would be compelled to require the districts to follow their own rating systems, rather than the new statewide system. The evidence adequately explicated a rational basis for DOT's suggestion that the districts use the new statewide rating system--the new statewide system is based on recent experience and addresses all of the appraisers' recent experience. To address the possibility that formerly rated appraisers, like Leggate, might not have recent enough experience, the DOT provided for the demonstration appraisal option. While perhaps not the best method for rating performance, the new statewide system has a rational basis and is not arbitrary. The next criterion of which the Petitioner complains is entitled "Understanding of the project (maximum points possible, 10). Under this criterion, the contracting agency is to rate the completeness of the RFP respondent's work plan, together with the respondent's demonstrated understanding of the project complexities and particular appraisal skills, knowledge and ability possessed by the respondent, as described in a maximum of three pages of narrative. District VII gave Leggate a six on RFP 7002 and a seven on RFP 7003; it gave Putnam an eight on RFP 7002, and it gave Cuddeback a nine on RFP 7003. District II gave Leggate a 7.67 to Hale's 6.33. In all cases, the scores were based entirely on the written submission of each RFP respondent describing the respondent's understanding of the project. The evaluators scored the submission based on the perceived relative merits of the appraisal issues raised and possible solutions offered by the RFP respondents. The Petitioner did not place the other responses in evidence, and its response could not be compared with the others. Apparently accepting that his submission was not as complete as it could have been (or as others were), Leggate implied that it relies in part on his credentials and experience to demonstrate his understanding of the project. But the RFPs clearly were designed to score credentials and experience separately, and the Petitioner should have recognized that this criterion was limited to an evaluation of the three-page written submission. Awarding points separately for an RFP respondent's ability to communicate in writing his understanding of the project at hand is legitimate as part of a rational attempt to differentiate the qualifications of the RFP respondents. District VII used one criterion omitted by District II, giving five points for office location 50 miles or less from the Hillsborough County courthouse. Assuming that this criterion was intended to rate the RFP respondents' access to the court records they would have to use during the appraisal work, Leggate pointed out that the appraiser awarded the contracts would have to use the Pinellas County courthouse to access the pertinent court records and that, although the Petitioner got five points for office location, its office actually is more than 50 miles from the Pinellas County courthouse. The Petitioner argued that the criterion is arbitrary. The Department's evidence, however, was that the criterion was added to give an advantage to local appraisers with working knowledge of local conditions and that the 50 mile limitation was used specifically to include Leggate and other appraisers from Lakeland, known to District VII to be good appraisers with local knowledge. The Petitioner did not prove either that the criterion should be invalidated or that five points should be subtracted from its score. As can be seen by the foregoing Findings of Fact, the Petitioner has not proven its entitlement to any additional points on any of the RFP response evaluations in issue in this case. (Besides, as to the Alachua County RFP, even if the Petitioner were given all of the additional points claimed, it still would not be the highest scoring respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order dismissing the bid protests in these cases and awarding the appraisal contracts to John C. Putnam (RFP 7002), George Cuddeback (RFP 7003) and Richard S. Hale (Alachua County RFP). RECOMMENDED this 1st day of February, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 1st day of February, 1991.
