Findings Of Fact In April 1995, DMS issued ITB #94/95-053 soliciting bids for providing an indefinite quantity of interior painting of buildings statewide. Bidders were to submit unit prices for ten categories of work in each of five districts. The unit prices were added together to arrive at a total for each of the five districts. The invitation to bid (ITB) contemplated the award of five contracts--one for each district. The contract was to be issued for one year with the anticipated renewals of one year each. The ITB provided that bids would be "evaluated and awarded to the responsible low bidder(s) per region." On May 1, 1995, DMS issued an addendum to the ITB. DMS issued the addendum to add the requirement for a bid bond or cashier's check in the amount of $5,000. The purchasing specialist in charge of the solicitation had inadvertently omitted the bid bond requirement from the ITB. The purpose of the bid bond is to compensate the agency for damages in the event the low bidder fails to enter the contract at issue. To underscore the importance of the bid bond requirement, DMS required that all bidders return a signed acknowledgment form with their bid. Ten bidders submitted bids on May 15, 1995. The lowest bidder for regions two through four was Brighton Painting Company (Brighton). Although the ITB provided that bids could only be withdrawn prior to bid opening, David Batts, who will be responsible for managing the contracts, contacted Brighton's president after the bid opening and questioned him because the contractor was based in Illinois. Based on that conversation, Mr. Batts determined that Brighton would not be able to adequately manage the contract while based out of state. Although the ITB provided that bids could only be withdrawn prior to bid opening, DMS allowed Brighton to withdraw its bid. Taul submitted the lowest bid for region one and the second low bid for regions two through five. J. F. Ward Painting and Decorating (Ward) submitted the third lowest bid for regions one, two, four and five. CEM Enterprises, Inc., d/b/a Sunshine Painting (CEM) submitted the third lowest bid for region three. The total of the unit prices submitted by Ward and CEM were higher than the total of the unit prices submitted by Taul. 1/ After the bid opening, all bids were reviewed by the agency purchasing office in order to determine responsiveness. Ms. Joyce Plummer is the purchasing officer for DMS, who was responsible for evaluating and awarding the contract. Ms. Plummer found no irregularities in her review of Taul's bid. After her review, Ms. Plummer provided Mr. Batts the three lowest bids for review by him. Mr. Batts reviewed the bids because he was the individual primarily responsible for preparing the ITB and because he would be the contract administrator once the contracts were awarded. On May 30, 1995, at 10:20 a.m., DMS posted a notice of intent to award the contract to Ward. The posting indicated that Taul's bid was disqualified for failure to submit a bid bond. Ms. Plummer posted the notice of intent to award the contracts to Ward based on the opinion of Mr. Batts that Taul had not submitted a valid bid bond. At the request of Mr. Taul, DMS Bureau Chief Wayne Smith reviewed Taul's bid bond and determined that it was responsive. At that time DMS had in its possession a letter from the surety agent affirming the surety's obligation in a minimum amount of $5,000 under the bid bond. 2/ Ms. Plummer therefore reconsidered the posting and spoke with another purchasing officer, Kathleen McKenzie. Ms. McKenzie had been employed by DMS longer than Ms. Plummer and she recalled a prior bid process in which a bid bond similar to Taul's had been accepted. McKenzie did not know at the time she gave her opinion that the contract in question was an indefinite quantity contract. As a result of the further inquiry into the sufficiency of Taul's bid bond, DMS posted an amended bid tabulation announcing its notice of intent to award the contracts to Taul. Sometime after the second posting, Mr. Ward called Mr. Batts to discuss the award to Taul. Mr. Batts advised Mr. Ward that, in his opinion, Taul's bid bond was no good. After this conversation with Mr. Batts, Ward filed a notice of intent to protest the award to Taul. When she received the notice of intent to protest filed by Ward, Ms. Plummer discussed the matter with DMS assistant general counsel. 3/ As a result of that discussion, Ms. Plummer posted a second amended tabulation indicating an award of all five regions to Ward. That tabulation subsequently also was amended to represent the award of the contract for region three to CEM. The first posting showing an intent to award to Ward was verified by Mr. Batts and Ms. Plummer. The second posting showing an intent to award to Taul was verified by Ms. Plummer. The third and fourth postings were verified by DMS general counsel. The bid security requirement in the ITB called for submission of a bid bond or a cashier's check in the amount of $5,000. The ITB also required bidders to commit to furnishing a $100,000 performance and payment bond if they were successful. In order to obtain a bid bond, a bidder must secure a commitment from the bonding company to issue a performance and payment bond. If the surety agrees to provide the payment bond, it will issue a bid bond without charge. Taul has been in the commercial painting business since 1978. For the past 8 years 95 percent of its work has been awarded by governmental entities pursuant to competitive bids. Taul has consistently expressed the intent to execute and perform the contracts in accordance with its bid in this case. In obtaining the bid bond in this case, Taul followed his standard practice--contacting the bonding agent and providing information regarding the nature of the contract and extent of commitment that would be required for the performance and payment bond. The bid specification for the bonds was given to and reviewed by the surety agent. The surety agent, David Pichard, was of the opinion that, since the ITB called for a performance bond in the amount of $100,000 and because the amount of the contract was indefinite, the amount of the bid upon which to issue the bid bond was $100,000. The standard bid bond requirement on public contracts is five percent. The plain wording of the bid bond submitted is that the sum of the surety obligation is "FIVE PER CENT (5 percent) OF AMOUNT BID." Since the contract to be awarded in this case is for an indefinite quantity of work, the "amount bid" is indeterminate. Petitioner was unable to establish, either prior to or at the final hearing, what the "amount of the bid" is. Mr. Batts was of the opinion that the amount of the bid bond was not clear. Based on that opinion, Mr. Batts believed that the bond did not meet the specification in the ITB. The purpose of the bid bond requirement was to ensure that DMS received considered bids. Due to the vagaries of the contract DMS wanted a contractor it could depend on to enter into the contract in case there was an emergency painting need such as storm damage. With a valid bid bond or a cashier's check the contractor could not unilaterally decide to walk away from the bid without leaving money on the table. The ITB addendum is clear and definite with respect to the required bid bond. Taul's bid bond is indefinite and not specific with regard to the amount of the bid bond furnished. Taul's bid bond was therefore not responsive with regard to the bid bond requirement. Petitioner has failed to prove that the agency acted arbitrarily, capriciously, fraudulently, or illegally, in determining that Petitioner's bid was materially not responsive to the requirements of the ITB at issue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order dismissing Petitioner's formal bid protest. DONE and ORDERED this 11th day of September, 1995, in Tallahassee, Florida. JAMES W. YORK 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 11th day of September, 1995.
The Issue The issue is whether Respondent, Akers Holdings, LLC, and its surety, Fidelity and Deposit Company of Maryland, are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner operates a nursery supply company that produces trees, plants, and other landscaping supplies at a location in Bunnell, Florida. Respondent is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Respondent was a landscape distribution company and a licensed dealer in agricultural products supported by a surety bond provided by Fidelity and Deposit Company of Maryland. This matter arose over an Agent Complaint filed by Petitioner on March 23, 2005, in which it alleged that Respondent owed $136,942.49, based upon numerous invoices for nursery goods delivered to various job sites where Respondent was providing landscaping services. Respondent Akers Holdings, LLC, by its agent or employee, R. Dean Akers, signed a Promissory Note on March 23, 2005, in the amount of $137,445.47 plus ten percent simple interest per annum. Under the note, Respondent agreed to repay its outstanding debt to Petitioner at the rate of $12,083.64 per month, commencing March 15, 2005, until paid in full. Respondent made payments under the note as follows: Date of Payment Amount Paid Check No. 3/15/2005 $12,083.64 13536 4/15/2005 12,097.81 1360 5/13/2005 12,090.51 13657 6/14/2005 12,129.37 1372 7/29/2005 12,103.41 13782 The payment dated 7/29/2005 was received by Petitioner on August 8, 2005. No subsequent payments were made by Respondent, Akers Holdings, LLC, after that date. At the time of hearing, based upon the evidence presented by Petitioner, the amount due to Petitioner under the Promissory Note was $81,655.81, and the amount due to Petitioner on open account was $30,734.58. Respondent, Akers Holdings, LLC, offered no excuse for its nonpayment of either the Promissory Note or the open account with Petitioner. Accordingly, Respondent Akers Holdings, LLC, or its surety, Fidelity and Deposit Company of Maryland, owe Petitioner $81,655.81 on the Promissory Note and $30,734.58 on open account, for a total amount owed of $112,390.39.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent, or its surety, to pay Petitioner $112,390.39 for unpaid invoices. DONE AND ENTERED this 26th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 26th day of January, 2006. COPIES FURNISHED: Kathy Alves Fidelity & Deposit Company of Maryland Post Office Box 87 Baltimore, Maryland 21203 R. Dean Akers Akers Holdings, LLC 5006 20th Avenue, South Tampa, Florida 33619 Donald M. DuMond Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Christopher E. Green, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Division of Marketing 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Department of Agriculture and Consumer Services Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Oglesby Nursery, Inc., is a commercial nursery providing a variety of landscape agricultural products. The principal office for Petitioner is located at 3714 SW 52nd Avenues Hollywood, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highway, Delray Beach, Florida. Respondent, Garden of Eden, is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about August 22, 1986, Garden of Eden ordered and received delivery of $7673.40 worth of agricultural products from Petitioner. This purchase consisted of nine may pan coconuts and thirty green malayans trees. All of the trees were accepted and no issue was made as to their condition. On or about September 2, 1986, Garden of Eden ordered and received delivery of $1190.00 worth of agricultural products from Petitioner. This purchase consisted of seven coconut malayans dwarf trees. All of the trees were accepted and no issue was made as to their condition. The total amount of the agricultural products purchased by Garden of Eden from Petitioner was $8863.40. The total amount Garden of Eden paid on this account was $5000.00. The balance of indebtedness owed by Garden of Eden t o Petitioner for the purchases listed above is $3863.40. Petitioner claims it is due an additional sum of $247.77 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry and since Respondent took delivery of additional products knowing interest on past due accounts to be Petitioner's policy. No written agreement of acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
The Issue The issue is whether Smallwood Design Group/Smallwood Landscape, Inc. (Respondent), and its surety, Hartford Fire Insurance Company, owe funds to American Farms, LLC, (Petitioner) for the sale of agricultural products.
Findings Of Fact At all times material to this case, the Petitioner was a licensed agricultural producer in the State of Florida. At all times material to this case, the Respondent was a licensed agricultural dealer in the State of Florida. From May 30 through October 27, 2006, the Respondent purchased agricultural products, specifically foliage plants, from the Petitioner. All charges for the plants sold by the Petitioner to the Respondent were billed on invoices that were sent to the Respondent by the Petitioner. The quantities and prices of the delivered plants were clearly identified on the invoices. The Respondent has failed to pay invoices totaling $11,777.18 that were sent by the Petitioner to the Respondent. There is no evidence that any of the charges were disputed by the Respondent at the time the sales were invoiced. There is no evidence that any of the plants sold by the Petitioner to the Respondent were unsatisfactory in terms of price or quality. As required by law, the Respondent had in place an Agricultural Products Dealer Bond dated December 9, 2005. The bond was executed by Joann Smallwood as "principal" for the Respondent. The bond was effective for one year and included the time period relevant to this proceeding. In correspondence filed during the course of this proceeding, the Respondent asserted that Joann Smallwood sold the business to another owner during the time relevant to this proceeding. The evidence established that at all times material to this case, Joann Smallwood acted as the owner/manager of the business. The plants sold by the Petitioner to the Respondent were picked up by trucks with Smallwood logos and signage. There was no evidence that the Petitioner was ever advised during the time the Respondent was purchasing plants from the Petitioner that Joann Smallwood had sold the business or that the Respondent would not be liable for payment of products purchased from the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order directing that the Respondent pay the total of $11,777.18 to the Petitioner (plus the filing fee paid by the Petitioner to the DACS) and establishing such other procedures as are necessary to provide for satisfaction of the debt. DONE AND ENTERED this 3rd 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 3rd day of August, 2007.
The Issue The ultimate issue for determination is whether the School Board's proposed award of a construction contract to Federal Construction Company is fraudulent, arbitrary, illegal or dishonest. See Department of Transportation v. Groves- Watkins Constructors, 530 So.2d 912 (Fla. 1988). Also at issue is whether Gulf, as fifth lowest bidder, has standing to bring this action and, if so, whether it is entitled to award of the contract. STIPULATED FACTS In their Prehearing statement, filed on December 13, 1988, the parties have stipulated to the following facts: The SCHOOL BOARD placed [sic] for bids pursuant to bid documents on elementary school project known as "Elementary School "E". At a Pre-Bid Meeting on September 27 the bidders were told that the subcontractor's list must list one and only one subcontractor per item and include all subcontractors with no open blanks. If the general contractor was going to list himself as doing that particular piece of work he must so indicate. Bids were submitted to the SCHOOL BOARD on October 13, 1988, by six general contractors with the lowest bid being submitted by FEDERAL followed by PHILLIPS, INDUS, BARTON-MALOW and GULF. Required to be attached to each bid was a Bid Bond, Unit Price List, and List of Subcontractors. The List of Subcontractors Form required the bidder to list the names of subcontractors and suppliers who would perform the phases of the work indicated with the assumption that any work item (trade) not included would be performed by the Bidder's own forces. The lowest bidder, FEDERAL, left some of the items of work blank or had a horizontal line drawn beside them. FEDERAL's bid bond did not contain a penal sum and the Power of Attorney did not contain an original signature, but had a typed in date October 13, 1988 next to the copy of the signature. No Power of Attorney was filed in the Public Records of Sarasota County PHILLIPS' bid listed no subcontractors for any work items. INDUS' bid materially deviated in that it did not agree to complete the work in the time specified, left some work items blank on the subcontractor's list and listed itself as doing work items not normally done by a general contractor. BARTON-MALOW'S bid listed a steel supplier who did not bid the project to BARTON-MALOW and the bid bond was not on the specified form. GULF's bid was in conformance with the bid documents. On October 20, 1988, the SCHOOL BOARD Construction Staff recommended to the SCHOOL BOARD that the FEDERAL bid be accepted and that the contract be awarded to FEDERAL.
Findings Of Fact The bid specifications and related items for construction of Sarasota County School Board's Elementary School "E" and bus depot are dated July 1, 1988. (Joint Exhibit #1.) The Invitation for Sealed Bids was advertised on September 4, 11 and 18, 1988. Among the requirements included in the instructions to the invitation for sealed bids is the direction that each bid must be accompanied by a bid bond, written on the form satisfactory to the Board, or a cashier's check in the amount of five percent of the total base bid as a guarantee that, if successful, the bidder would enter into a written contract with the Board. (Joint Exhibit #1, P.C-1.300.) The instruction also includes the requirement that if a bid bond is submitted it must be "...written on the form bound within these bidding documents...". (Joint Exhibit #1, P.C-1.600.) Among other specifics related to the bond are the requirements that the dollar amount of the bond, or "5 percent of the bid", be typed or printed in the space provided, and that the surety's agent's power of attorney either be recorded in Sarasota County or include an original signature. (Joint Exhibit #1, P.C- 1.610.) Two addenda were issued to the July 1, 1988 bid specifications. Addendum No. 1 is dated September 30, 1988, and includes a revised bid form and list of subcontractors form. The material change in the list of subcontractors form was to delete language at the end of the form allowing changes or substitutions with written consent of the architect and owner prior to signing the agreement, and substituting this language: "The contractor shall not remove or replace subcontractors listed above except upon good cause shown and written approval by Owner". (Joint Exhibit #1, P.C-2.430.) Both the revised and former subcontractor list provide "Any work item (trade) not included will be assumed by the Owner as being performed by the Bidder's own forces". (Joint Exhibit #1, p.C-2.400.) A mandatory pre-bid conference was held on September 27, 1988. In order to have a valid bid proposal, all bidding contractors had to attend the conference. Gulf, Federal and the other bidders had representatives at the conference. Charles Collins, the School Board project manager, also attended and reviewed the specifications. He reminded the conference participants that the subcontractors list must be included with the bid and that one and only one subcontractor could be listed for each item. He also told the participants that if the contractor was going to do a particular item, he had to so indicate. He said that any deviation would result in the bid being rejected. (Transcript pp.316,319.) The bids were submitted and opened on October 13 1988. Six bids were received, with the following totals for both the school and bus depot: Federal $7,243,000.00 Phillips $7,322,155.00 Indus $7,390,000.00 Barton-Malow $7,398,000.00 Gulf $7,448,000.00 Carlson (amount not included in the record -- the highest bidder) (Joint Exhibits #2,3,4,5 and 6) The immediate reaction of Charles Collins and other School Board staff was that the lowest bid, Federal, was a very sloppy bid. There were problems, in fact, with the four lowest of the six bids. (Transcript pp.215 and 324.) Federal's bid bond was on the proper form, but the penal sum space was left blank. In addition, the power of attorney signature was not an original, but was rather part of the printed form. There was no power of attorney for its surety, American Home Assurance Company, on record in Sarasota County. The list of subcontractors form required by the School Board is divided into two columns. The first column lists the work item and in some cases, includes subcategories, such as "supplier", "installer", "manufacturer", "dealer/contractor", and similar designations. For some work items more than one, and as many as three, separate subcategories are included, indicating the need to fill in more than one blank for that work item. The heading over the second column is titled "Subcontractor or Material Supplier". The bidder is supposed to write in the space in this column the subcontractor or supplier for each of the work items and subcategories listed in the first column. Federal's list of subcontractors had either blank spaces or a line drawn in the second column for approximately twenty-two work items or subcategories under the work items. In several cases a single name was listed only once next to the work item, even though there were several subcategories under that item. For example, under the work item, "Pre-Engineered Metal Roof System", are three subcategories: "Manufacturer", "Dealer/Contractor (Supplier)" and "Erector". Federal has handwritten one name next to the "Dealer/Contractor (Supplier)" subcategory: "Hammer & Howell". (Joint Exhibit #3.) Dr. Melvin Pettit is the School Board's director of facilities and is responsible for the bidding process and construction of new schools. He is Charles Collins' supervisor. After the bid opening, Dr. Pettit and his other staff met with the bidders individually to make sure they understood the bid. Gulf's bid was very complete and there was not that much to interpret. (Transcript p.217.) Federal's bid was not complete and needed considerable explanation. Dr. Pettit took notes of the explanations on his copy of Federal's bid form. (Joint Exhibit #10.) Federal drew a line next to the work item "site concrete work" because it intended to do than work itself. Although it listed "United" only once for the two subcategories under "Sanitary Sewer Lift Station", it intended that United be both the supplier and installer. Under the work item, "Termite control", Federal drew a line because it did not have a bid or a subcontractor to list. "Underground Fuel Tanks (Bus Depot) and Accessories" with two subcategories, "Supplier" and "Installer", were left blank. Federal intended that J. H. Pump Services do the work, as they were also doing the fuel dispensing equipment, a separate work item on another page of the form. No supplier nor installer was listed under "Concrete Work" because the Federal representative could not remember the supplier's name when the bid was prepared. Federal had quotations for the "Chalkboard and tackboard" work item, but did not list a supplier. They also had quotations for the specialty signs but did not list a supplier for that work item. No subcontractor was listed under the work item, "Waste Handling Equipment"; Federal intended to use the same subcontractor for that and a separate item, "Food Service Equipment". For the separate items, "Dark Room Equipment" and "Library Equipment", no supplier was listed. Federal explained that it had quotes but did not list them because of the rush of bidding. No subcontractor nor supplier was listed for the separate items, "Intercommunications System" or "Public Address System". Federal explained that it intended to use the same subcontractor as that indicated for the electrical work because these items were included in the electrician's bid. For those items including separate subcategories, where only one name is listed, Federal intended in most cases to use the same firm for all subcategories. However, for the roof system example cited in paragraph #9, above, Federal assumed that Hammer and Howell would supply and erect a roof manufactured by Butler. In other words, Hammer and Howell would not also be the manufacturer of the system. The bid specifications list approved manufacturers, and Hammer and Howell is not one of them, nor were they certified as an approved manufacturer one week prior to the bid date, as required in the specifications. Bid opening day in a general contractor's office is a frantic time. Depending on the size of the job and its competitive nature, literally hundreds of phone calls are made. In this case there were over fifty line items that had to be filled in with names on the subcontractors list. Although quotations from subcontractors and suppliers are obtained in the weeks prior to opening, last minute confirmations are obtained in an effort to get the best and most accurate estimates. Preparation of the subcontractor list is time-consuming and critical to competition among bidders. If the bidder is allowed to leave an item blank, he may continue to "shop around" after the bid opening, if he is awarded the bid, to improve his profit margin. The owner, on the other hand, is deprived of the opportunity to consider the subcontractors or suppliers when the bids are evaluated. The bid opening was at 2:00 p.m. Federal, like many other contractors, dispatched an employee to the bid opening with a blank bid. While the staff were at the contractor's office compiling estimates, the representative at the opening was on the phone taking down last minute information. Rick Furr, Vice-President of Federal for eight years, did not give specific instructions to his representative regarding leaving blanks or drawing a line. In some cases, the blanks or lines were intended to mean that Federal was going to do the work itself; in most cases, however, Federal intended that someone else would do the work. After hearing Federal's explanation of its bid, Dr. Pettit and his staff discussed it and came to the conclusion that even though there were a "goodly number of irregularities", that it was "poorly done" and "sloppy" (transcript, p.219), in their opinion Federal did not gain significant material advantage, so they recommended the award go to Federal, as lowest bidder. Dr. Pettit explained at hearing that because of the language on the subcontractor list form, that ". . . any work item not included would be assumed by the owner as being performed by the Bidder's own forces", the School Board intended to require Federal to use their own forces for those work items which they left blank. By "their own forces", he means the work would be done by Federal employees on Federal's payroll, for whom workers' compensation is paid. (Transcript, pp.228-9.) This stated intention is so conflicting with Federal's intention and capabilities as to be utterly disingenuous. Although Federal can do its own site concrete work, just as most contractors do, it is not licensed to do termite control. It does not have a batch plant to supply concrete. It cannot manufacture a metal roof system, chalkboards and tackboards, specialty signs, darkroom equipment, an intercommunications system, or a public address system. Even if it could, it is not one of the approved manufacturers listed in the bid specifications for most of these items list. It is apparent, therefore, that Federal will either be unable to perform under the contract or that changes must be made to its subcontractors list. The approximate combined value of the work items left blank, or partially blank, by Federal is $1 million. Federal gained a competitive advantage by failing to complete all the blanks on the subcontractors list form. It gained precious minutes of time to concentrate on other aspects of the bid preparation; it is not bound to a given supplier, manufacturer or installer and can continue to bid shop. Phillips' bid, the second lowest, was non-responsive as it failed to list any subcontractors. It left blank the entire four-page attachment to the bid. (Joint Exhibit #4.) Indus' bid materially deviated from the specifications, as stipulated by the parties. (See stipulated Facts, above, and Joint Exhibit #5.) Barton-Malow's subcontractors list included Aetna Steel as the steel fabricator/supplier, but Aetna Steel verified in writing that they did not bid the structural steel on this job. Barton-Malow also used its surety's bid bond form, rather than the form required in the specification. The form provided by Barton-Malow lacked several provisions found on the required form, including the payments of expenses and attorney's fees in the event of a suit on the bond. (Joint Exhibits #1 and 6; Transcript, pp.89-90) Barton-Malow did fill in all of the blanks on the subcontractors list in accordance with the instructions at the pre-bid conference. In its bid specifications and accompanying documents and instructions, the School Board reserves the right to reject any and all bids received and to waive any and all irregularities in regard thereto. (Joint Exhibit #1, p.C- 1.310.) Since the only recommendation the School Board was given is to award the contract to Federal, the lowest bidder, it has not taken any action on the remaining bids.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Sarasota County award the contract to Gulf Constructors, Inc., as the lowest responsive bidder. DONE and ENTERED this 1st day of March, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 March, 1989. APPENDIX The following constitute my rulings on the findings of fact submitted by the parties: Petitioner's Proposed Findings Addressed in Background. Adopted in paragraphs 2. and 7. Adopted in paragraph 2. Adopted in paragraph 7. Adopted in paragraph 4. Rejected as irrelevant. Adopted in paragraphs 12. and 17. 8.-10. Rejected as unnecessary. 11.-13. Adopted in paragraph 3. 14.-19. Adopted in substance in paragraph 11. 20. Adopted in summary in paragraph 16. 21.-30. Adopted in substance in paragraph 16. 31.-36. Adopted in substance in paragraph 17. 37.-41. Addressed in conclusions of law. Rejected as cumulative. Adopted in paragraph 18. Adopted in paragraph 19. Adopted in paragraph 20. 46.-58. Rejected as cumulative and unnecessary 59.-61. Adopted in paragraph 12. 62.-90. Rejected as cumulative, unnecessary or a restatement of testimony, rather than a finding of fact. 91.-96. Although credible, Mr. Cannon's opinion on the enforceability of the bond is not competent. This is basically a legal opinion. 97.-149. Rejected as cumulative, unnecessary, or a restatement of testimony, rather than a finding of fact. Respondent's Proposed Findings Addressed in Background. Adopted in paragraph 3. Adopted in paragraph 21. 4.&5. Adopted in paragraph 3. 6.&7. Rejected as statement of testimony, not a finding of fact. 8.&9. Rejected as immaterial. 10.&11. Adopted in paragraph 4. 12.&l3. Rejected as immaterial. 14.-16. Rejected as contrary to weight of evidence. 17. Adopted `in paragraph 11. 18.-45. Rejected as unnecessary or subordinate to the findings in paragraph 11. Adopted as a legal conclusion. 47.-52. Rejected as unnecessary. Adopted in paragraph 14. Rejected as unnecessary; this is addressed in the conclusions of law. 55.-59. Rejected as contrary to the weight of evidence. Rejected as unnecessary. Rejected as contrary to the weight of evidence. COPIES FURNISHED: DARYL J. BROWN, ESQUIRE MICHAEL S. TAAFFE, ESQUIRE ABEL, BAND, BROWN, RUSSELL & COLLIER 1777 MAIN STREET POST OFFICE BOX 49948 SARASOTA FLORIDA 34230-6948 JOHN V. CANNON, III, ESQUIRE ELVIN W. PHILLIPS, ESQUIRE WILLIAMS, PARKER, HARRISON & DIETZ 1550 RINGLING BOULEVARD POST OFFICE BOX 3258 SARASOTA, FLORIDA 34230 HONORABLE BETTY CASTOR COMMISSIONER OF EDUCATION THE CAPITOL TALLAHASSEE, FL 32399 DR. CHARLES W. FOWLER SUPERINTENDENT SCHOOL BOARD OF SARASOTA COUNTY 2418 HATTON STREET SARASOTA, FL 33577
The Issue Whether the Respondent is indebted to Petitioner as alleged in the Complaint filed with the Department of Agriculture and Consumer Services.
Findings Of Fact Robert Sepos is the comptroller for Ben-Bud Growers, Inc. As such Mr. Sepos maintains the company records which document amounts owed to it by others. As to this case, Mr. Sepos presented the invoices and statements due and owing from the Respondent. Based upon the unpaid invoices, Respondent owes Petitioner the sum of $10,471.80. Respondent acknowledged that the sum of $10,471.80 is owed to Petitioner but claimed that such amount was not for the purchase of agricultural products as contemplated by Chapter 604, Florida Statutes. According to Mr. Towell the bulk of the debt owed to Petitioner is for packaging and shipping fees for produce from growers represented by Fantastic Produce. Mr. Towell maintains that packing and shipping fees are not encompassed within Chapter 604, Florida Statutes. Mr. Sepos could not verify what sum, if any, of the total amount claimed was for agricultural products (versus packing or shipping). Based upon the admissions made by Mr. Towell, Respondent owes the Petitioner for agricultural products the sum of $775.00 in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order approving Petitioner's claim in the amount of $775.00 and disallowing the remainder. DONE AND ENTERED this 7th day of November, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish 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 7th day of November, 1997. COPIES FURNISHED: Brenda D. Hyatt, Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza 01 Tallahassee, Florida 32399 Ben Litowich, President Ben-Bud Growers, Inc. 6261 West Atlantic Boulevard Margate, Florida 33063 George Towell, President George Towell Distributors, Inc. d/b/a Fantastic Produce Post Office Box 159 Belle Glade, Florida 33430 American Southern Insurance Company Legal Department 3715 Northside Parkway, 8th Floor Atlanta, Georgia 30327
The Issue At issue in this proceeding is whether the proposal of Health Care Pharmacy Providers, Inc. (HCPP), was responsive to the request for proposal issued by the Department of Administration (Department), and whether the Department departed from the essential requirements of law in its evaluation of the responses to the request for proposal.
Findings Of Fact Background On June 14, 1991, the Department of Administration, Division of State Employees' Insurance (Department), issued Request for Proposal No. 91-14 (hereinafter "the RFP") for a statewide prescription drug card program for full- time and part-time state employees, retired employees, COBRA recipients and eligible dependents covered by the State of Florida Employees' Group Health Self-Insurance Plan. The deadline for submitting sealed proposals in response to the RFP, as amended, was established as 2:00 p.m., August 2, 1991. At the time of the deadline, the Department had received a number of proposals, including those of petitioner, Consultec, Inc. d/b/a General American Consultec, Inc. (Consultec), and intervenor, Health Care Pharmacy Providers, Inc. (HCPP). On August 22, 1991, following its evaluation of the proposals, the Evaluation Committee advised the Secretary of the Department that: Based on the evaluation criteria contained in the RFP, the Committee would normally recommend that a contract be offered to Consultec, Inc. The company that was awarded the second most points is Health Care Pharmacies. However, considering the Plan's past claim's history, the Committee projects that, with a contract awarded to Consultec rather than Health Care Pharmacies, an additional claim's cost of approximately $500,000 - $600,000 would be incurred annually. This difference is calculated based on the discount rates of 12.4% versus 15% respectively. The Committee feels it must, therefore, recommend that a contract be offered to Health Care Pharmacies. . . . Thereafter, on August 23, 1991, the Department notified Consultec that it had selected the proposal of HCPP, as the most advantageous to the state, and accorded Consultec notice of its opportunity to contest the Department's decision. Consultec filed a timely notice of protest and formal written protest to contest the Department's decision. Such protest charged that the Department materially departed from the evaluation criteria contained in the RFP, and that the proposal of HCPP was not responsive to the RFP. The Request for Proposal Pertinent to this case, General Conditions 3 and 6 of the RFP provided: 3. PROPOSAL OPENING . . . A proposal may not be altered after opening of the price proposals. . . . * * * 6. AWARDS:As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. . . . The RFP, as amended, further provided: SECTION IV PROPOSAL COMPLETION 1. Any proposal submitted in response to this RFP must include the certification of compliance on pages 25 and 26 signed by an authorized representative of the respondent. By the signature, the respondent certifies that all provisions of this RFP have been read, understood and agreed. The absence of such certification at the time of bid opening will render the proposal invalid and it will not be evaluated. * * * 3. Each respondent must submit the original of the following in a single envelope: * * * Complete information requested in the 12 subsections of the Proposal Requirements. The respondent must respond to each statement in the same order as they appear in Section VI. Do not re-format or group your replies or your proposal will result in a non-responsive bid. Complete the Cost Proposal as outlined in Section VIII. . . . * * * 6. DOA reserves the right to request verifi- cation, validation or clarification of any information contained in the proposal submit- ted. This may include checking references. SECTION V INQUIRIES * * * Questions regarding this RFP will be answered at the pre-bid conference at the time, date and address shown in the Schedule of Events . . . Responses to such advance written questions, as well as questions raised at the conference, will be recorded in compre- hensive written minutes which will be distri- buted to all parties who received the RFP and who record their presence at the conference. Any changes made in this RFP which are not part of the official minutes of the pre-bid conference will be communicated in writing as an RFP amendment to all parties who received this RFP and who record their presence at the pre-bid conference. * * * 8. The State of Florida reserves the right to reject any and all proposals, to make no award or to issue a new Request For Proposals. SECTION IV PROPOSAL REQUIREMENTS 1.0. LICENSE ORGANIZATION AND HISTORY * * * 1.4 Provide audited financial reports for 1987, 1988, 1989 and 1990, summarizing revenue and expenses for the operation of the prescrip- tion drug card benefit program of your business and the total operation of your prescription drug card business. * * * 2.0 FINANCIAL RESPONSIBILITY * * * 2.2. Provide evidence of a $1 million Performance Bond. * * * PROVIDER NETWORK Develop a statewide network of pharmacies which agree, by contract, to submit claims for participants and to accept the contractor's allowance along with the participant's co-payment as full payment. There must be participating pharmacies in all of Florida's 67 counties. * * * SECTION VIII CRITERIA FOR EVALUATION The Department of Administration shall evaluate each proposal by assessing the re- spondent's reply to all issues addressed in this RFP. The evaluation process shall include: The adherence and response to the Proposal Requirements as specified in Section VI. Lack of response to each point in Section VI will result in a nonresponsive bid. Do not reformu- late or group your replies. The Cost Proposal. SECTION IX EVALUATION OF PROPOSALS CRITERIA: Each evaluation shall be done using the criteria listed in Section VIII. WEIGHTING:The weighted criteria is as follows: ADMINISTRATIVE FEES Category 1 1/1/92 - 12/31/92 40% Category 2 1/1/93 - 12/31/93 40% Enrollment data on the number of state subscribers is found in APPENDIX I of this REP. DISCOUNT PERCENTAGE RATE Category 3 1/1/92 - 12/31/93 20% FORMULA FOR CLAIMS PAYMENT Payment will be the Average Wholesale Price (AWP) less a discount percentage rate, plus a dispensing fee minus a co-payment. Information on prescriptions for participants in the last two fiscal years and partial amounts for the 1991-1992 fiscal year are found in Appendix 2 of this RFP. METHODOLOGY: In order to determine the rela- tive value of the weighted criteria, a 100 point system will be used. Respondents submitting the lowest administrative fees will be awarded the most points. Respondents submitting the highest discount percentage rate will be awarded the most points. Conversion to the 100 point scale will be determined as follows: The administrative fees and discount percentage rate for each of the respondents will be added by category. The sum of each category will be divided by the number of respondents to arrive at the mean for that category. ADMINISTRATIVE FEES The mean for administrative fees will be accorded a value of 20 points per year. Each respondent's response, by category, will be divided into the mean for that category. This factor will be multiplied by the point value of the mean (20 points) to determine the points awarded for the category. Calculations will be rounded to the fifth decimal. An administrative fee of 0 will receive a value of 40 points per year. DISCOUNT PERCENTAGE RATE The mean for the discount percentage rate will be accorded a value of 10 points. Each respondent's response will be divided by the mean for that category. This factor will be multiplied by the point value of the mean (10 points) to determine the points awarded for that category. The total points for each of the three categories will result in that respondent's total points awarded. Maximum points will be 100. SECTION X COST OF PROPOSAL Provide the monthly cost per year for all administrative services per claim for each year of the contract. 1/1/91 - 12/31/92 1/1/93 - 12/31/92 Provide the discount percentage rate for the two-year contact period. 1/1/92 - 12/31/93 SECTION XI CERTIFICATE OF COMPLIANCE * * * We propose to furnish and deliver any and all of the services in the attached Request for Proposals. It is understood and agreed that this proposal constitutes an offer which, when accepted in writing and subject to the terms and conditions of such acceptance, will consti-tute a valid and binding contract between the undersigned and the State of Florida, Department of Administration. It is understood and agreed that we have read the State's specifications shown or referenced in the RFP and that this proposal is made in accordance with the provisions of such specifi- cations. By our written signa-ture on this proposal, we guarantee and certify that all items included in this pro-posal meet or exceed any and all such State specifications. We further agree, if awarded a contract, to deliver services which meet or exceed the specifications. . . . In accordance with Section V of the RFP, Consultec submitted the following question to the Department: What is meant by "providing evidence"? Do you want written assurance that we have the capa- bility to provide these bonds and insurance should we be the successful bidder? The Department answered: Provide evidence means the respondent must show written proof that it acquired the bonds and general liability insurance as required in the RFP and that the State shall be notified by the insurer of any cancellation of the bonds and liability insurance required. While the Department's answer to Consultec's question stated that a respondent "must show written proof that it acquired the bonds," the proof at hearing demonstrated that insurance companies do not issue performance bonds until a contract has actually been awarded. Consequently, no respondent could "provide evidence" of a $1 million performance bond in the manner delineated by the Department. The responsiveness of Consultec's proposal Consultec's proposal was fully responsive to the requirements of the RFP, and contained no material omissions or deviations from those requirements. 1/ In response to Section X of the RFP, as amended, Consultec proposed a monthly cost-per-year for all administrative services per claim for each year of the contract (January 1, 1992 - December 31, 1992, and January 1, 1993 - December 31, 1993) of Zero dollars ($0.00). Consultec also proposed a discount percentage rate from the average wholesale price (AWP) for prescription drugs for the two-year contract period of 12.4 percent. The responsiveness of HCPP's proposal HCPP's proposal was not responsive to the requirements established by the RFP in at least two material particulars. First, it failed to comply with the requirement that it provide audited financial statements for 1987-1990, and second, it failed to provide evidence of a $1 million performance bond. As heretofore noted, Section VI of the RFP required that HCPP provide audited financial reports for 1987 through 1990. The specific requirement read as follows: 1.4 Provide audited financial reports for 1987, 1988, 1989, and 1990, summarizing revenue and expenses for the operation of the prescription drug card benefit program of your business and the total operation of your pre- scription drug card business. In response to such requirement, HCPP submitted a consolidated balance sheet and consolidated statement of operations for National Intergroup, Inc., and its subsidiaries. National Intergroup, Inc., is HCPP's parent company. The financial statements, assuming they were audited, which was not demonstrated by competent proof in these proceedings, failed to include any auditor's notes. More importantly, such statements were consolidated statements of National Intergroup and its subsidiaries, and it is impossible to ascertain from such documents any information concerning the financial health of HCPP, the entity proposing to contract with the Department. Moreover, such statements fail, as required by the RFP, to summarize "revenue and expenses for the operation of the prescription drug card benefit program of [HCPP's] prescription drug card business." Under such circumstances, HCPP's response to the provision of the RFP regarding the provision of financial reports was not responsive. HCPP's response to Section VI of the RFP, that it "Provide evidence of a $1 million Performance Bond" was likewise nonresponsive. Regarding such requirement, HCPP responded: HCPP does not have a Performance Bond as it is not applicable. Following bid opening, the Department contacted HCPP regarding its response to the performance bond requirement and was advised by HCPP that it had framed its response based on its assumption that a performance bond would not be required for a company of its stature. Upon being advised that it indeed was required, HCPP agreed to provide such a bond. Notably, however, HCPP's proposal contained no evidence of its ability or inclination to provide such a bond, and its agreement to do so occurred subsequent to bid opening. Under such circumstances, HCPP's proposal was not responsive to the performance bond requirement of the RFP. HCPP's response to Section VI of the RFP, that it agree to develop a statewide network of pharmacies with participating pharmacies in all of Florida's 67 counties was ambiguous. Pertinent to this requirement, HCPP responded: HCPP proposes a statewide network of pharma- cies including Eckers, Kmart, Pharxnor and numerous independent pharmacies. The total preferred network consists of 820 stores in 53 counties. Upon review of HCPP's response, the Evaluation Committee was of the opinion that HCPP's response evidenced an intention to provide a statewide network, with participating pharmacies in all 67 counties, and that HCPP currently had a network of pharmacies in 53 counties. To clarify such point, the committee contacted HCPP following the bid opening, and HCPP confirmed that the committee's interpretation of its response was accurate. At hearing, the proof confirmed the accuracy of the committee's interpretation of HCPP's response. Under such circumstances, the Department's request for clarification was appropriate, and HCPP's response that it had in fact proposed a 67-county statewide network was not a post-bid opening alteration of its proposal. Finally, HCPP's proposal failed to contain any specific response to paragraphs 5.8, 5.10, 11.1, 11.2, and 11.3 of Section VI of the RFP, as required by paragraph 3C of Section IV and paragraph 1 of Section VIII of the RFP. Such failing, more likely than not, was inadvertent and the fault of the typist who prepared the response, since any response to such paragraphs required no more of the bidder than its agreement to comply with such requirements. HCPP's proposal was, nonetheless, not responsive to paragraphs 5.8, 5.10, 11.1, 11.2, and 11.3 of the RFP. While not responsive to such paragraphs, the Department and HCPP contend that such failing is a minor irregularity since, by execution of Section XI (the Certificate of Compliance), HCPP obligated itself to comply with such requirements. A fair reading of Section XI comports with the position espoused by such parties. Accordingly, it is found, under the circumstances, that HCPP's failure to specifically respond to such paragraphs was a minor irregularity, appropriately waived by the Department. The same conclusion cannot, however, be drawn regarding HCPP's failure to provide audited financial statements or to provide evidence of a $1 million performance bond. Such requirements were required as part of the proposal, and were not so submitted. Additionally, HCPP's response in these particulars was contrary to the express requirements of the RFP. Under such circumstances, HCPP's mere execution of the Certificate of Compliance does not cure the deficiencies of its proposal as to such requirements. In response to Section X of the RFP, as amended, HCPP proposed a monthly cost-per-year for all administrative services per claims for each year of the contract (January 1, 1992 - December 31, 1992, and January 1, 1993 - December 31, 1993) of forty cents ($.40). HCPP also proposed a discount percentage rate from the AWP for the two-year contract period of 15 percent. Evaluation of the cost proposals Applying the weighted criteria established by Section IX of the RFP to Consultec's cost proposal, the Evaluation Committee awarded it the maximum number of possible points (80 points) for its proposed administrative costs, since the proposal reflected no charge for such expenses, and 21.440 points based on its proposed discount percentage rate of 12.4 percent. In all, Consultec received 101.440 points. By comparison, HCPP was awarded 51.666 points for its proposed administrative costs and 25.936 points based on its proposed discount rate of 15 percent. In all, HCPP received 77.603 points. 2/ Notwithstanding that Consultec was the superior respondent, based on the evaluation criteria contained in the RFP, the Evaluation Committee recommended, and the Secretary concurred, that the contract be awarded to HCPP. Such result was occasioned by the committee's conclusion that, notwithstanding the fact that Consultec received the most points under the evaluation criteria, awarding the contract to Consultec rather than HCPP would cost the state an additional $500,000 - $600,000 annually when the cost proposals are evaluated in light of the Plan's past claims history. 3/ The Department, as well as HCPP, do not concede that the Department departed from the methodology established by the RFP but, rather, contend that the point system by which the cost proposals were to be evaluated was but a "starting point" for the evaluation of the cost proposals. Supportive of such contention, those parties note that no where in the RFP was it specifically stated that the proposal with the most points would be awarded the contract and, therefore, the Department's decision to award the contract based on the lowest cost, as opposed to the most points, was not a departure from the established methodology or otherwise improper. Such contention is rejected as being contrary to the terms of the RFP, and otherwise not persuasive. Section VIII of the RFP establishes a two-pronged test for awarding the contract: (1)"The adherence and response to the Proposal Requirements as specified in Section VI," and (2)"The Cost Proposal." 4/ Pursuant to Section X of the RFP, the cost proposal of a vendor is to be evaluated under the weighted criteria established by Section IX of the RFP. Neither Section VIII, IX or X contemplate any other factor, and nothing in the RFP establishes any other test or methodology by which to compare the various responses. Accordingly, under the literal terms of the RFP, Consultec was the prevailing bidder because it received the highest number of points under the methodology established by the Department. While the proof demonstrated that Consultec is the successful bidder when the methodology established by the RFP is properly applied, it further demonstrated that the methodology established by the Department was fatally flawed since, among other things, it neither provided for an exact comparison of bids, nor secured the best values for the public at the lowest possible expense. In this regard, the proof showed that while Consultec proposed zero administrative costs, it in fact proposed to recover such costs by being able to obtain drugs from participating pharmacies at a greater discount than the discount quoted to the state. 5/ Accordingly, while Consultec did have administrative costs, and was planning to recoup those costs, such costs were subsumed in its discount rate, and the methodology established by the Department did not permit an exact comparison of bids. Further, as heretofore, found, the methodology adopted by the Department was not designed to secure the best values for the state. 6/ Considering the flawed methodology adopted by the Department to evaluate the proposals submitted in response to the subject RFP, it is concluded that it is in the best interests of the State of Florida to reject all bids and to extend a new RFP.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered which rejects all proposals, and that a new request for proposals be extended. RECOMMENDED in Tallahassee, Leon County, Florida, this 13th day of November 1991. WILLIAM J. KENDRICK 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 13th day of November 1991.
The Issue This is a license discipline case in which Petitioner seeks to take disciplinary action against Respondent on the basis of allegations of misconduct set forth in an Administrative Complaint dated August 13, 2003.
Findings Of Fact At all times material to this case, Respondent Jean- Rene Joseph has been licensed in the State of Florida as a bail bond agent. At all times material to this case, Respondent worked as a bail bond agent with a bail bond company named America's Best Bail Bonds, Inc. At approximately 2:30 or 3:00 a.m. on the morning of January 29, 2002, Santacroce contacted Respondent for the purpose of arranging bail for a friend of hers named John Raymond Moyer ("Moyer"). Moyer needed a bond in the amount of $1,500.00. Respondent agreed to provide, and did provide, the requested bail bond for a fee of $150.00. On the morning of January 29, 2002, Santacroce paid $150.00 cash for the bail bond fee. Santacroce also agreed to furnish collateral for the bail bond issued on behalf of Moyer. In this regard, Santacroce agreed that she would either deliver the title to a specified automobile as collateral, or she would make payments of $250.00 per week until the bail bond on behalf of Moyer was fully collateralized. In the early morning hours of January 29, 2002, Santacroce did not have an original certificate of title to an automobile with her. Instead, she gave Respondent a color photocopy of title number 50460657, which was a certificate of title to an automobile. The certificate showed title to a 1986 Chevrolet in the name of a registered owner named Oliver C. Todd ("Todd"). Handwritten information on the certificate indicated that the registered owner had sold the automobile to AAA National Auto Sales, who in turn had sold the automobile to Santacroce. Santacroce also had with her at that time an affidavit signed by Todd that authorized Santacroce to retrieve the subject automobile from a towing company, as well as a document from Festa Towing Service, Inc, itemizing towing and storage charges. During the early morning hours of January 29, 2002, Respondent and Santacroce both signed a receipt document numbered 11122. Section 4 of that document describes the collateral or collateral documents as consisting of a promissory note and "Fl car title #50460657 or weekly payment of $250.00." Santacroce never made any payments towards collateralization of the subject bail bond. Moreover, Santacroce never delivered to Respondent the original of the certificate of title described above. Less than two weeks later, Moyer was arrested and jailed on other criminal charges. Through another bail bond company, Moyer posted bail on the second arrest. Santacroce no longer wished to have any liability on the bail bond issued on January 29, 2002. Accordingly, she asked Respondent to "surrender" the bond and have Moyer returned to jail. Moyer failed to appear for his court appearance that was guaranteed by the bail bond obtained by Santacroce. A bond forfeiture order was issued on February 12, 2002. Eventually, Moyer appeared, the forfeiture order was set aside, and the surety was discharged. Respondent's employer incurred expenses in the amount of $50.00 to have the forfeiture order set aside. At some point after the surety was discharged, Santacroce asked Respondent to return what Santacroce described as the certificate of title she had given to Respondent. Respondent could not return a certificate of title to Santacroce, because Respondent never received a certificate of title from Santacroce. Respondent never returned the photocopy of the certificate of title to Santacroce. That photocopy was still in Respondent's possession as of the day of the final hearing.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Administrative Complaint in this case be dismissed because there is no clear and convincing evidence that Respondent received "car title #50460657" or anything else of value as collateral security for the subject bail bond. DONE AND ENTERED this 7th day of May, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 7th day of May, 2004. COPIES FURNISHED: Dickson E. Kesler, Esquire Department of Financial Services Suite N-321 401 Northwest Second Avenue Miami, Florida 33128 Hernan Hernandez, Esquire 1431 Ponce de Leon Boulevard Coral Gables, Florida 33134 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
