The Issue The issue for consideration herein is whether the Petitioners, MISSCO, GENERAL, AND INTERSTATE should be placed on the convicted vendor list pursuant to Section 287.133 Florida Statutes (1991).
Findings Of Fact The facts stated in the Joint Stipulations to the extent set forth below are hereby adopted as findings of fact: On April 9, 1993, DMS issued notices of intent pursuant to Section 187.133(3)(e)(1), Florida Statutes. Jt. Stips. Appen. at pp. 72-73. On April 13, 1993, MISSCO filed petitions with DMS for a formal hearing pursuant to Section 120.57(1), Florida Statutes, to determine whether it is in the public interest for MISSCO, GENERAL, or INTERSTATE to be placed on the Florida Convicted Vendor List pursuant to Section 287.133, Florida Statutes. Jt. Stips. Appen. at p. 74-77. Subparagraph 287.133(3)(e)e., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor upon the convicted vendor list. On April 5, 1991, General Equipment Manufacturers, Inc., (hereinafter "General"), a Mississippi corporation, and wholly owned subsidiary of MISSCO Corporation, was convicted of the commission of a public entity crime as defined within subsection 287.133(1)(g), Florida Statutes. Jr. Stips. p. 1, Appen. at pp. 41-43. A criminal information was filed in the United States District Court for the Southern District of Mississippi against General Equipment Manufacturers, Inc., alleging a violation of Section 1001, Title 18, United States Code and applicable Federal Acquisition Regulations which occurred on or about December 2, 1988. Jt. Stips. p. 1, Appen. at p. 40. The criminal information filed in the United States District Court, Southern District of Mississippi charged General with falsely representing on or about December 2, 1988 that the equipment schedule and price list submitted to the General Services Administration (hereinafter GSA) was General's established commercial price list. (Jt. Stips. p. 2, Appen. at p. 40. Upon entry of a plea of guilty, the Court entered a judgement against General which was filed April 5, 1991. The judgement required payment of a special assessment of $200, a fine in the amount of $10,000, without interest, and restitution in the amount of $28,000. Jt. Stips. p. 2, Appen. at pp. 40-48. The GSA issued Solicitation No. FCGS-X8-38010-N for FSC Group 66 Part II, Section P, Laboratory/Pharmacy Furniture. General submitted an offer dated August 18, 1988, and signed by Charles H. Wright, General Manager of General's SystaModules Division. In connection with its offer, General submitted its purported commercial price list dated January 31, 1987. Mr. Wright certified in Section M-FSS-330, M.3, Basis for Price Negotiation, Item (c), Certificate of Established Catalog or Market Price, that: The price(s) quoted in General's proposal is based on established catalog or market prices of commercial items, as defined in FAR 15.804-3(c), in effect on the date of the offer or on the dates of revisions submitted during the course of negotiations. Substantial quantities of the items have been sold to the general public at such prices. All of the data, including sales data, submitted with General's offer are accurate, complete, and current representations of actual transactions to the date when price negotiations are concluded. By letter dated December 2, 1988, Mr. Wright, in his capacity as General Manager of General's SystaModules Division, certified on behalf of General that: . . . all data submitted with General's offer pursuant to the discount schedule ad marketing data sheets and any other data submitted as as part of General's offer on Solicitation FGS-X8-38010-N are current, accurate, and complete a of the conclusion of negotiations, which occurred on December 2, 1988. Jt. Stips. p. 2-3, Appen. at pp. 51-53. On the basis of General's offer on Solicitation No. FGS-X8-38010-N, the GSA awarded General Contract No. GS-00F-06709 on December 13, 1988. The contract was for the period February 1, 1989, through January 31, 1992. Jt. Stips. p. 3-4, Appen. at p. 53. An investigation by the Federal Bureau of Investigation determined that General provided the GSA with fabricated price lists in connection with FGS-X8-38010-N. Jt. Stips. p. 4, Appen. at pp. 53-54. The details of the criminal information against General are discussed in the findings and determination made by the GSA Office of Acquisition Policy, dated May 18, 1992, which are incorporated herein by reference. Jt. Stips. Appen. at pp. 49-71). Particular findings are as follows: Federal debarment was imposed on General and its corporate officials Messrs. Wright and Majure. Jt. Stips. Appen. at p. 50. The debarments were effective throughout the Federal Executive Branch. The debarment precluded the award, renewal, or extension of federal contracts. Jt. Stips. Appen. at p. 50. Debarment proceedings were initiated by separate notices dated November 1, 1990 based on a referral from the Federal General Services Administration (GSA), Office of Inspector General (OIG). Jt. Stips. Appen. at p. 51. General bid on GSA Solicitation No. FGS-X3-36426-N and in connection with its offer General submitted a "dealer retail price list," and certified that: its prices were based on established catalog or market prices, substantial quantities of the items had been sold to the general public at said prices: and that all of the data submitted with its offer was accurate, complete and current representations of actual transactions up to the date when price negotiations were concluded. Jt. Stips. Appen. at p. 51. General's offer on the solicitation was accepted and it was awarded contract number GS-00F-70316 on April 19, 1984. Jt. Stips. Appen. at p. 52. On June 28, 1985 General made the same representations as to GSA Solicitation No. FGS-X8-38000-N for laboratory and pharmacy furniture. The award was made to General on December 9, 1985. Jt. Stips. Appen. at p. 52. Identical representations were made by General in response to GSA Solicitation No. FCGS-X8-38010-N issued on July 7, 1988. The solicitation was for laboratory and pharmacy furniture. The award was made to General on December 13, 1988. Jt. Stips. Appen. at p. 53. Criminal Information Number J90-00080(B) was filed in the U.S. District Court for the Southern District of Mississippi on November 15, 1990. The information was based on the FBI investigation of General's submission of false commercial price lists to GSA. The criminal information charged General with violating Title 18, U.S.C. 1001 in connection with its offer on Solicitation No. FGS-X8-38010-N. It alleged that General knowingly, willfully, and falsely represented to GSA that the equipment schedule and price lists submitted with General's 1988 offer was General's established commercial price list. Jt. Stips. Appen. at p. 54. General pled guilty to Criminal Information No. J90-00080(B) on December 19, 1990 and was ordered to pay a fine of $10,000 and to make just restitution to the GSA in the amount of $28,000. The conviction was also used as the basis for the federal debarment of General. Jt. Stips. Appen. at p. 54. Mr. Wright and Mr. Majure were also debarred by virtue of their conduct in connection with the General conviction. Jt. Stips. Appen. at pp. 54- 59. General and MISSCO are affiliated companies. General is a wholly-owned subsidiary of MISSCO. MISSCO is directed and governed by its executive committee which acts in lieu of the board of directors. Mr. Majure was a director of MISSCO, a member of MISSCO'S executive committee, a senior vice president of MISSCO, and president, director, and general manager of General. Jt. Stips. Appen. at p. 59. Mr. Majure held a position of substantial responsibility in both MISSCO and General, and through MISSCO's control group is accountable for the circumstances of General's crime. Jt. Stips. Appen. at p. 60. A decision not to impose federal debarment on MISSCO was predicated on MISSCO management's decision to ensure that it did not supply the Federal government with the same goods and services formerly provided by General during the period of General's debarment: MISSCO management made a commitment to emphasize ethical business practices: the people responsible for General's crime were no longer employed by MISSCO: the GSA administrative record (with the exception of General) does not indicate a lack of business integrity or poor performance on federal contracts. Jt. Stips. Appen. at pp. 61-63. Federal debarment of General was predicated upon the following: conviction of the crime of making false statements posed a substantial risk to government business dealings: General submitted false information on solicitations over an extended period of time: General fabricated price lists and false certification son two prior solicitations: General's crime posed a substantial danger to the integrity of the Federal government's MAS program: the accountable individuals for the crime were high-ranking officials at General. Jt. Stips. Appen. at pp. 63-66. The federal debarment proceedings found mitigating factors in that: the parties pled guilty and cooperated with the Department of Justice throughout the investigation: the parties cooperated with GSA throughout the debarment proceedings: General was not charged with deliberate overcharges on its federal MAS contracts: General promptly paid its fine and restitution: General has made good faith efforts to undertake remedial action. Jt. Stips. Appen. at pp. 68-69. On April 9, 1993, Respondent issued Notices of Intent pursuant to Section 287.133(3)(e)1, Florida Statutes, which were received by the Petitioners. Jt. Stips. p. 5, Appen. at pp. 72-73. On April 13, 1993, Petitions filed petitions pursuant to Section 287.133(3)(e)2, Florida Statutes, and Section 120.57(1), Florida Statutes, requesting an order determining that it is not in the public interest for Petitioners to be placed on the State of Florida Convicted Vendor List. Jt. Stips. p. 5, Appen. at pp. 74-75. MISSCO is a holding company which has a number of operating divisions and two wholly-owned subsidiary corporations, General Equipment Manufacturers (General) and MISSCO Exports Corporation (Exports). Jt. Stips. p. 2, Appen. at pp. 35-36. Interstate of Florida is a Division of MISSCO and is a dealer (re- seller) of General's products. Jt. Stips. p. 2. General and MISSCO are commercially distinguishable and they do not occupy the same facilities. MISSCO's primary lines of business are distribution of school equipment and supplies, office equipment and supplies, and commercial printing. Jt. Stips. p. 4. MISSCO Exports is an entity formed solely for accounting and tax purposes, has no employees, and does not engage in substantive commercial operations. Jt. Stips. p. 4. MISSCO has extensive dealings with the federal government, as supplier of goods manufactured by other entities. General is the only MISSCO entity that contracts with the government under the Multiple Awards Schedule (MAS) program. General's primary line of business is manufacturing institutional furniture. Jt. Stips. pp. 4-5. In compliance with paragraphs 287.133(3)(a) and (B), Florida Statutes, MISSCO made timely notification to the DMS and provided details of the conviction of General, by letter dated March 24, 1992 and provided copies of the criminal information, judgement and related correspondence. Jt. Stips. p. 5, Appen. at pp. 37048. Payment of the fine in the amount of $10,000 and restitution in the amount of $28,000 imposed by the conviction and judgement entered April 5, 1991 were promptly paid by General on April 15, 1991. Jt. Stips. pp. 5-6, Appen. at pp. 47-48. Subsequent to the criminal information filed in the United States District court, Southern District of Mississippi in November of 1990, General entered a plea of guilty to the charge, thus eliminating the necessity for further investigation and trial. Jt. Stips. p. 6. The GSA in its findings and determination dated May 18, 1992, cited mitigating factors favorable to General and MISSCO. The factors included, cooperation with the Department of Justice throughout its investigation; cooperation with the GSA throughout the debarment proceeding; constructive dealings by counsel for MISSCO and General with the GSA Office of General Counsel on issues relating to the restrictions on MISSCO and General's business relationship with the government and government prime contractors. Jt. Stips. p. 6, Appen. at pp. 68-69. MISSCO fully cooperated with the DMS in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes. Jt. Stips. p. 6. MISSCO formally filed its disclosure pursuant to Section 287.133(3)(b), Florida Statutes with the DMS by letter dated March 24, 1992, together with exhibits attached thereto. The letter specifically referred to the criminal information filed against General and the judgement entered by the Federal District Court. A copy of the criminal information and judgement were enclosed with the letter, together with a copy of correspondence between MISSCO and the GSA. Jt. Stips. pp. 8-9, Appen. at pp. 37-39. In response to a request dated April 15, 1992 from the DMS for additional information, MISSCO promptly furnished all such information. Jt. Stips. p. 9. At its meeting held December 17, 1992, the Board of Directors of MISSCO was convened and all of the offices then held by Mr. James T. Majure, former President of General, were declared vacant and other persons were elected to those positions. Jt. Stips. p. 7, Appen. at pp. 2, 67, 70. Mr. Charles Wright was retired from General under a medical disability prior to 1990. Jt. Stips. p. 7. MISSCO Corporation fully cooperated with the GSA by proposing and implementing remedial measures including the presentation of an Ethics Seminar by Mr. Norman Roberts, past chairman of the American Bar Association's section on government contracting. Jt. Stips. p. 7. MISSCO revised its corporate Code of Ethics, revised its Employee Handbook, installed an 800 hotline telephone number permitting employees to communicate any concerns regarding business ethics, designated a Corporate Vice President as the Ethics Compliance Officer, appointed a committee of three corporate executives to monitor corporate business activities, and revised its internal audit procedures to insure that no cash is unaccounted for which might be used for the purpose of kickbacks. Jt. Stips. pp. 7-8, Appen. at pp. 28-33, 62-63. MISSCO's management undertook prompt and verifiable action to comply with the restrictions imposed on MISSCO's business dealings with the government after notices of proposed debarment. General promptly and voluntarily withdrew from the GSA contract that was tainted by the submission of a fabricated commercial price list during negotiations. Jt. Stips. p. 8. MISSCO had a code of business ethics in place when the circumstances leading to General's conviction arose. The code was amended following the initiation of debarment proceedings to specifically address the importance of truthful certifications and providing accurate information in connection with business transactions with the government. Jt. Stips. p. 8. MISSCO substantially expanded its corporate ethics compliance program and undertook extensive training in business ethics. A detailed "ethics audit" was undertaken by MISSCO, and the results of this audit were provided to the GSA. Jt. Stips. p. 8, Appen. at pp. 10-22, 28-34. General sells its products through a dealer network and not through factory direct sales. General has a dealer agreement with Interstate of Florida for the sale of its products in Florida to private and public entities. Jt. Stips. p. 9. Interstate of Florida, a division of MISSCO Corporation of Jackson, is a dealer (re-seller) of General's products. There are other dealers throughout the United States which also market and sell General's products. Interstate of Florida had gross sales of approximately $6.8 million in fiscal year 1990-91. Approximately 99 percent of those sales were to public entities. Jt. Stips. p. 9. Interstate of Florida is primarily an educational sales company which sells educational contract furnishings such as laboratory casework, auditorium seating, and folding bleachers. It has conducted business with almost every school district in Florida. The largest transactions have been conducted with the school districts of Dade and Orange Counties in Florida. The largest municipal transactions have been conducted with the City of Tallahassee. Jt. Stips. p. 10.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department not place the names of the Petitioners on the Florida Convicted Vendor List. DONE and ENTERED this 29th day of July, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 29th day of July, 1993. COPIES FURNISHED: William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Susan B. Kirkland, Esquire Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 C. Graham Carothers, Esquire Ausley, McMullen, McGehee Carothers & Proctor Post Office Box 391 Tallahassee, FL 32392 Terry A. Stepp, Esquire Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
Findings Of Fact William L. McCallister was the Respondent in Dept. of State, Division of Licensing vs. William L. McCallister, DOAH Case No. 86-1480. The Department of State, Division of Licensing, initiated Case No. 86- 1480. In that action, the Department of State sought to revoke the detection of deception examiner's license of William L. McCallister. It also entered an emergency order of suspension. William L. McCallister was the prevailing party in DOAH Case No. 86- 1480. The total value of reasonable attorney's fees and costs in this proceeding is $15,000. The Department of State was not a nominal party in these proceedings. During 1985, William L. McCallister was the sole owner of McCallister Polygraph Service, Inc. During 1985, he was employed by the Polk County Sheriff's office as a sworn officer serving as Staff Polygraphist. When he conducted the polygraph examinations of the three complaining witnesses in DOAH Case No. 86-1480, he did so in fulfillment of his duties as Staff Polygraphist. McCallister Polygraph Service, Inc. was not a party in DOAH Case No. 86-1480. Prior to initiating proceedings in DOAH Case No. 86-1480, the Department of State conducted an adequate factual investigation of the allegations by Phyllis Langdale, Rose Giannotti, and Joanne Meyer. The evidence presented at final hearing regarding standards applied by the Department to detection of deception examiners in disciplinary proceedings describes the standards in effect at the time the complaint was filed.
The Issue Whether Respondent Consolidated Services, Inc. (CSI) owes Petitioner $20,674.50 for peppers purchased from Petitioner, as alleged in Petitioner's Complaint.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a producer of peppers and other produce. It owns and operates Goodson Farms in Balm, Florida, which is located on the west coast of the Florida peninsula. At all times material to the instant case, Don and Jan Goodson have been the owners of Petitioner. At all times material to the instant case, Steve Macholl has been Petitioner's sales manager. At all times material to the instant case, Craig Sovine has been employed by Petitioner, "handl[ing, along with Mr. Macholl] sales[,] shipping[,] receiving," and related paperwork. At all times material to the instant case, Mr. Macholl and Mr. Sovine have had the authority to enter into agreements on behalf of Petitioner to sell produce Petitioner grows on its farm. At all times material to instant case, it has been Petitioner's practice to sell on only a cash basis, and not to extend credit, to any unbonded and unlicensed dealer who is not listed in either the "Blue Book" or "Red Book" (both of which, among other things, provide credit rating information) and with whom it does not have an established relationship. CSI is a Florida-licensed dealer in agricultural products. At all times material to the instant case, CSI had offices in Nogales, Arizona and Pompano Beach, Florida, which is located on the southeast coast of the Florida peninsula. At all times material to the instant case, Robert Allen has been the owner of CSI. At all times material to the instant case, Harry Guice was employed as a sales representative by CSI. As a sales representative, Mr. Guice had the authority to enter into agreements on behalf of CSI to purchase produce. Mr. Guice no longer works for CSI. In or about April of 1998, Mr. Guice, acting in his capacity as CSI's sales representative, visited Goodson Farms to discuss with Petitioner's representatives, Mr. Macholl and Mr. Sovine, the possibility of CSI obtaining peppers from Petitioner. (Prior to this time, CSI had not had any direct business dealings with Petitioner.) Mr. Guice was accompanied on his visit by John Haire. Mr. Haire owned and operated a business, Signal Produce, from his home in Appollo Beach, Florida, which was located a short distance from Goodson Farms. Although there is a conflict in the evidence, the more credible evidence establishes that the following occurred during and after Mr. Guice's visit. Mr. Guice and Mr. Haire introduced themselves to Mr. Macholl and Mr. Sovine and presented them with their business cards. Mr. Guice's business card reflected that he was a sales representative for CSI. On the back of the card, Mr. Guice wrote down his home telephone number. Mr. Haire's business card reflected that he was with Signal Produce. Mr. Guice told Mr. Macholl and Mr. Sovine that he was familiar with Petitioner's product because he had purchased Goodson Farms' produce (on behalf of CSI) from Don Monteef, who, Mr. Guice related, had recently passed away. (Mr. Monteef had been, like Mr. Haire, unbonded, unlicensed and not listed in either the "Blue Book" or "Red Book." Petitioner, at the outset, had done business with Mr. Monteef on a cash basis exclusively, but after having established a business relationship with him had allowed him to defer payment until "two or three days" after he "picked up" his order.) Mr. Guice advised Mr. Macholl and Mr. Sovine that CSI was interested in purchasing product directly from Petitioner. He further indicated that Mr. Haire would assist him in making such purchases for CSI by visiting Goodson Farms and inspecting the produce available for purchase. After determining that CSI had an exemplary credit rating, Mr. Macholl and Mr. Sovine informed Mr. Guice that Petitioner would sell to CSI on credit. When Mr. Guice indicated that CSI would make payment within seven to ten days, Mr. Macholl and Mr. Sovine told him that CSI would receive a discount if payment was actually made within that time frame. During the period beginning April 20, 1998, and ending May 26, 1998, CSI, through Mr. Guice, verbally agreed to purchase from Petitioner, and Petitioner, through its representatives, verbally agreed to sell to CSI (FOB), five separate loads of peppers for a total price of $20,674.50 ($12,515.50 for a load purchased and sold on April 20, 1998; $2,561.00 for a load purchased and sold on April 29, 1998; $2,556.00 for a load purchased and sold on May 23, 1998; $612.00 for a load purchased and sold on May 25, 1998; and $2,430.00 for a load purchased and sold on May 26, 1998).2 All five loads were delivered to and accepted by CSI's agents (the truck drivers Mr. Guice dispatched to Goodson Farms). On one occasion (the May 23, 1998, delivery) Mr. Haire picked up the peppers from Goodson farms for CSI. For each transaction, Petitioner prepared (in triplicate) a "manifest" ("manifest" number 0997 for the April 20, 1998, transaction; "manifest" 1089 for the April 29, 1998, transaction; "manifest" number 1551 for the May 23, 1998, transaction; "manifest" number 1578 for the May 25, 1998, transaction; and "manifest" number 1601 for the May 26, 1998, transaction). The "manifest" indicated, among other things, the date of the transaction; the number of peppers sold; CSI's status as the purchaser of these peppers; the CSI purchase order number used to make the purchase (2311 for the April 20, 1998, purchase; 2334 for the April 29, 1998, purchase; 2440 for the May 23, 1998, purchase; 2462 for the May 25, 1998, purchase; and 2327 for the May 26, 1998, purchase); the name of the trucking company and driver picking up the load for CSI, the tag number of the driver's truck; and when the load was picked up. The "manifest" was presented to the truck driver picking up the load for the driver's signature. After signing the "manifest," the driver was given a copy as a receipt. Mr. Macholl thereafter added price information to the "manifest" to reflect the amount that, pursuant to the parties' verbal agreement, CSI owed Petitioner for the peppers in question. He then sent a copy of the "manifest" (with this additional information) to CSI's Pompano Beach office. At all times material to the instant case, documents received at CSI's Pompano Beach Office that were labeled as "manifests" were placed in the mailboxes of the CSI sales representatives responsible for the transaction. At no time prior to the commencement of the instant action did CSI advise Petitioner that it disputed any of the information contained in the above-described "manifests." CSI received and paid invoices from John Haire/Signal Produce dated April 26, 1998, April 30, 1998, May 23, 1998, and May 25, 1998, seeking payment for peppers purportedly purchased by CSI with purchase order numbers 2311 (for $9,955.50), 2334 (for $2,406.00), 2440 (for $3,337.50), and 2462 (for $660.00), the same purchase orders that Mr. Guice gave Petitioner when he placed orders, on behalf of CSI, with Petitioner for the peppers that were the subject of the April 20, 1998, April 29, 1998, May 23, 1998, and May 25, 1998, transactions described above. CSI has not yet paid Petitioner for the peppers that were the subject of these transactions; nor has it paid Petitioner for the peppers that were the subject of the May 26, 1998, transaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the that the Department enter a final order (1) finding that CSI is indebted to Petitioner in the amount of $20,674.50, (2) directing CSI to make payment to Petitioner in the amount of $20,674.50 within 15 days following the issuance of the order, and (3) announcing that if payment in full of this $20,674.50 indebtedness is not timely made, the Department will seek recovery from NYSC, CSI's surety. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Florida. STUART M. LERNER 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 15th day of June, 1999.
The Issue The issues in the case are as follows: Whether Florida Administrative Code Rule 61G4-12.017 is an invalid exercise of delegated legislative authority; and Whether the committee procedure used by the Construction Industry Licensing Board to review applications for licensure is invalid as an unadopted rule.
Findings Of Fact The Petitioner is an applicant for licensure as a general contractor by the Respondent. By operation of Subsection 489.107(4), Florida Statutes (2006),1 the Construction Industry Licensing Board (CILB) is divided into two Divisions. Division I has jurisdiction over the regulation of general contractors, building contractors, and residential contractors. Division II has jurisdiction over the regulation of all other contractors. Subsection 489.107(5), Florida Statutes, provides as follows: Five members of Division I constitute a quorum, and five members of Division II constitute a quorum. The combined divisions shall meet together at such times as the board deems necessary, but neither division, nor any committee thereof, shall take action on any matter under the jurisdiction of the other division. However, if either division is unable to obtain a quorum for the purpose of conducting disciplinary proceedings, it may request members of the other division, who are otherwise qualified to serve on the division unable to obtain a quorum, to join in its deliberations. Such additional members shall vote and count toward a quorum only during those disciplinary proceedings. (emphasis supplied) After the Petitioner's application was deemed complete, the application was referred to an "application committee" appointed by the CILB chairperson and assigned the responsibility of reviewing pending applications. There is no specific reference in either statute or rule codifying the application committee process. The application committee generally meets one day prior to the regularly scheduled meeting of the full CILB. Application materials are provided to members of the application committee. An applicant receives a letter signed by an employee of the CILB providing notice of the application review committee meeting at which the pending application will be considered. The notice includes the following statement: Statute or rule does not require attendance; however, it is in your best interest to attend so those questions that may arise during the committee's review can be answered. Failure to attend may result in denial of your application as a result of unanswered questions. Applications are commonly referred to the Board for review when an applicant or the business has a criminal history, liens or judgments on their credit report, bankruptcies, complaints or unlicensed activity cases against them. If you are unsure why your application has been referred to the board please contact me at the number listed below. (emphasis in letter) The letter clearly indicates that not all applications are reviewed by the full CILB, and accordingly, it is reasonable to presume that there are applications being approved without review by the full CILB. The Petitioner's application was reviewed by an application committee on two occasions. The parties stipulated that the application committee that considered the Petitioner's application was not composed of either five Division I or five Division II Board members. At the committee meeting of July 13, 2006, the Petitioner was granted a continuance apparently to obtain additional information for CILB consideration. The Order of Continuance issued by the CILB and dated August 7, 2006, stated that the Petitioner "agreed to waive the statutory 90 day requirement and appear before the Board in August, 2006." On August 10, 2006, the application committee made a recommendation to the full CILB that the Petitioner's application be denied. On August 11, 2006, the CILB unanimously voted to approve the committee recommendation. The parties stipulated that the full CILB (composed of at least five Division I and five Division II Board members) voted on August 11, 2006. The extent to which the application was reviewed by the full CILB prior to the vote is unclear, as is whether all application materials were provided to the full CILB prior to consideration of the Petitioner's application. Although the Petitioner has sought to obtain a transcript of the meeting, it has not been made available by the CILB. By Notice of Intent to Deny, dated August 30, 2006, the Petitioner set forth the grounds for the denial as follows: Applicant failed to provide proof of restitution associated with a prior order, which constitutes a basis for denial under Section 489.129(7) F.S. The prior order being referenced in the August 30 letter is a Final Order of the Hillsborough County Building Board of Adjustment dated June 21, 1997, wherein the Petitioner was directed to make restitution to a former client.
Conclusions This matter is before Florida Agricultural and Mechanical University Board of Trustees (“FAMU,” “Petitioner,” or the “University”) for final agency action. By letter dated March 10, 2010, Gerald Grow, Respondent, was notified by the University that it was determined, as a result of an internal payroll audit, that he was overpaid in the amount of $1,165.77 by the University. Pursuant to Section 120.57(1), Florida Statutes, Respondent requested a disputed-fact hearing to protest the alleged salary overpayment and the cause was referred to the Division of Administrative Hearings (DOAH) on or about June 22, 2010. Respondent's request for hearing was assigned DOAH case number 10-003398. The Administrative Law Judge assigned to review the matter scheduled a disputed-fact hearing for September 20, 2010. On or about July 1, 2010, Respondent filed a notice advising that he tendered $1,165.77 to the University, that the tendered amount was accepted by the University, and that he was withdrawing his request for a disputed-fact hearing because the matter had been “settled.” By Order entered July 27, 2010, DOAH closed its file and relinquished jurisdiction to the University. Accordingly, it is hereby Ordered and Adjudged that Respondent's debt obligation to the University of $1,165.77 has been satisfied and further that the instant matter is closed. Respondent may seek judicial review of this Final Order pursuant to Florida Rule of Appeliate Procedure 9.190, applicable to review of quasi-judicial decisions of an administrative body not subject to the Administrative Procedure Act, by filing a petition for certiorari review within thirty (30) days of the date this Final Order is filed with the Agency Clerk. DONE and ORDERED this 1st day of November, 2010. pnts H Cvassate H. Ammons President File with the Agency this day of November, 2010. Agency Clerk Copy: Teresa Hardee, CFO and Vice President, Administrative and Financial Services Avery D. McKnight, General Counsel Linzie F. Bogan, Associate General Counsel, Director of Labor Relations Nellie C. Woodruff, Associate Vice President, Human Resources Ciaudia Liado, DOAH Clerk Gerald Grow, Respondent
Conclusions This matter is before Florida Agricultural and Mechanical University Board of Trustees (FAMU) for final agency action. Pursuant to FAMU Regulations 10.120 and 10.302, Respondent requested a formal administrative hearing on or about November 17, 2012 to contest his dismissal from employment. Respondent's request for administrative hearing was referred to the Division of Administrative Hearings (hereinafter "DOAH") on November 29, 2011. The Administrative Law Judge assigned to review the matter scheduled a disputed-fact hearing for January 30-31, 2012. Respondent filed a Consented Motion for Continuance on January 26, 2012. DOAH issued an Order on January 19, 2012, granting the Continuance and requesting that the parties advise of the status by February 1, 2012. Upon Respondent's failure to provide a status report, DOAH issued an Order Closing File and Relinquishing Jurisdiction on April 12, 2012. Accordingly, it is hereby ORDERED and ADJUDGED that the Petition for Formal Administrative Hearing in this matter is dismissed in its entirety. DONE and ORDERED this 16th day of April, 2012. ounaa {rons Ammons, President Filed with the Agency this day of April, 2012. Agency Clerk
Other Judicial Opinions Petitioner may seek judicial review of this Final Order pursuant to Florida Rule of Appellate Procedure 9.190(b)(3), applicable to review of quasi-judicial decisions of an administrative body not subject to the Administrative Procedure Act, by filing a petition for certiorari review with the appropriate circuit court within thirty (30) days of the final University decision. If you seek review with the court, you must also provide a copy of the petition to the following university office or official: Agency Clerk, Office of the General Counsel, 1601 South Martin Luther King Jr. Boulevard, 300 Lee Hall, Tallahassee, Florida 32307. Copy: Tyreece Brown, Respondent Nellie C. Woodruff, Assistant Vice President, Human Resources Claudia Llado, DOAH Agency Clerk Avery D. McKnight, Esq. Robert E. Larkin, III, Esq.
