Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered sustaining the revocation of furlough on the grounds that respondent violated the terms of his Furlough Agreement. Respectfully submitted and entered this 14th day of October, 1982, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1982. COPIES FURNISHED: Christopher Cobb Post Office Box 490 Arthur G. Dozier School Marianna, Florida 32446 Julia Cobb 1527 Lancelot Loop Tampa, Florida 33619 Amelia M. Park, Esquire District VI Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 David Pingree, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Petitioner was an employee of the Respondent at a boys' detention center in Hillsborough County when he was accused by a resident thereof of having physically abused him. The matter was reported to the Department of Health and Rehabilitative Services' Abuse Register and, thereafter, Petitioner requested a hearing under Section 120.57(1), Florida Statutes, on the Department's denial of his request to amend or expunge the report of abuse. A formal hearing was thereafter held on the matter before the undersigned who, on January 10, 1994, entered a Recommended Order to the effect that the abuse report be amended and closed without classification, since the evidence presented at the hearing did not establish that Petitioner has abused the resident. This Recommended was subsequently sustained by the Secretary who, in his Final Order dated July 7, 1994, so ordered. Thereafter, Respondent's counsel sought reimbursement for the attorney's fees and costs expended by Respondent under the provisions of Section 111.07, Florida Statutes. In response, the Hillsborough County Attorney concluded that Petitioner was not a permanent County employee but a relief employee, and, thereby, was not entitled to reimbursement. By Petition dated September 28, 1994, a copy of which was not forwarded to a representative of the Board of County Commissioners or any representative of Hillsborough County, Petitioner now seeks reimbursement in the amount of $1,500.00 for attorney's fees and such other relief as the "Court" may deem fit and proper. By Order to Show Cause dated November 28, 1994, the undersigned directed counsel for Petitioner to advise the undersigned in writing by December 10, 1994, of the jurisdictional basis for its claim against the Board of County Commissioners before the Division. No response has been forthcoming.
Findings Of Fact Petitioner, Jo Nees, is a 52 year old caucasian woman who appears to be her age. Ms. Nees first moved to Destin, Florida in or about April, 1982, and upon arrival in the area, submitted an application for employment to the Delchamps store which was accepted, but about which she never heard anything from store personnel. Ms. Nees lives in the Destin East Mobile Home Park with Mr. Emerson, a gentleman with whom she has shared the mobile home for several years. In January or February, 1985, Ms. Nees went to the Delchamps store in Destin, where, she alleges, she spoke with the store manager, Mr. Owens, and asked him for an application for employment. At this point, according to Ms. Nees, he refused, indicating he preferred people younger than Petitioner. She concluded from their discussion that he felt that due to the large number of customers during the crowded summer tourist season, she would not be able to keep up and used the term, she contends, "older people." As a result she became quite upset with Mr. Owens and after this colloquy, she paid for her groceries and left. Ms. Nees contends that the conversation referenced above was overheard by the assistant manager, Mr. Few, and the cashier, Kathy Richardson. Though the cashier did not say anything at the time, she was present at the check-out counter where the conversation took place and must have heard it. The assistant manager, Mr. Few, in Ms. Nees' recollection, tried to smooth things over and calm her down. At approximately 4:30 a.m. in November, 1985, just before Thanksgiving, Ms. Nees was again in the Delchamps store. Mr. Few, she contends, came up to her and spoke to her by name. However, as she was checking out a few moments later, and he was manning the cash register, he advised her that if she filed any sort of complaint against the company, he would not know her. Ms. Nees continued to patronize the Delchamps store after the conversations with Mr. Owens because it is the only major supermarket in the area and she prefers to use it because of the quality of the product and the price. At no time has she been offered an application for employment by the store, nor has she been offered employment. As of the hearing, Ms. Nees had a job at a convenience and package store in Destin where she has worked since May, 1985. At the time she applied for a position with Delchamps she had been unemployed since December, 1984, when she left her prior job as manager of a local motel because of poor wages. In May, 1985, she was earning $4.20 an hour on a 40-hour week. Though complaining about the fact that she was not offered employment or even given an application in January, 1985, Petitioner is nonetheless satisfied that at that time, no employment was available at the Delchamps store. She contends, however, that they could have accepted her application and hired her even though she was not needed so that she would be available later on when the busy season came. At the time of the application, the period was one of low employment in the area. Ms. Nees has also filed a discrimination complaint against the neighboring Eckerd's Drug Store for failure to hire her, also on the basis of age. At the hearing, Petitioner testified that she had applied to Delchamps only once, yet on cross examination it appears she applied once and requested an application a second time. The EEOC form 5 filed in April, 1985, reflects that she applied three times for a position at Delchamps. Ms. Nees explains that the information contained on the form 5, though it bears her signature, was given over the telephone to the clerk at the Commission office and that she only applied once and requested an application form a second time. Inasmuch as Ms. Nees' testimony indicates that she applied in January or February, it is quite possible that in recounting the story over the telephone, the clerk misunderstood her comment and put down that she applied in both January and February, 1985, and that Ms. Nees failed to catch the mistake when she signed the form. This is, however, de minimus. What is more significant is the fact that none of the other parties involved identified by Ms. Nees, have any recollection of the situation being as she describes it. According to Mr. Owens, Ms. Nees at no time ever asked for an application, nor did he ever make to her the comments that she attributes to him. When he saw her at the investigation conducted by CHR, he recalled having seen her previously as a customer in the store, but at no time did she ever discuss employment with him, either alone or in the presence of Mr. Emerson, who, she claims, was a witness to the entire situation. Delchamps' policy is to accept an application form from anyone who asks for it and keep it on file. When employees are needed, people from the filed applications are called and interviewed, and selections are made. It is not company policy to take on as full-time employees, people who have not worked within the company before. Instead, people are hired on a part- time basis and then promoted to full-time positions from part- time status when openings occur. During the winter months, Mr. Owens has a staff of between 70 and 75 people. During the tourist season, that figure increases up to 120. Mr. Few, present at the discussion with Mr. Owens, does not recall any meeting between Nees and Owens and denies age discrimination. He agrees he saw her at the delicatessen counter early one morning as she alleges and greeted her. She seemed to be complaining to the counter clerk about Delchamps employment policy. When she got to the check-out counter he was manning, he offered her an application form in the hope it would put an end to the matter. She refused to accept it, however, and left after paying for her purchases. Kathryn Guidas, the cashier at the time of the alleged conversation between Ms. Nees and Mr. Owens, recalls seeing Petitioner in the store numerous times as a customer, but did not hear any conversation between Petitioner and Mr. Owens regarding employment. In fact, she has never seen Petitioner and Mr. Owens together. She has been asked for application forms by customers from time to time. When this happens, she refers them to either the manager or his assistant. Petitioner has not, to the best of her knowledge, ever asked her for an application form. On one occasion, Mr. Emerson mentioned that he had filed an employment discrimination complaint against the company and expected to hear something soon, but made no mention of any discrimination complaint by Petitioner. In her testimony at the prior inquiry, Ms. Nees identified Vicky White as an employee who was present at the conversation she claims to have had with Mr. Owens. Ms. White has worked in the Destin store as a clerk in the bakery and deli for approximately 10 years, but denies having ever seen Petitioner prior to the hearing. Neither does she know Mr. Emerson and she denies she has ever discussed company hiring policy with either Petitioner or Emerson. She has never been present at any conversation between Owens and Nees. In light of the above, it is most likely that Ms. Nees did not ask for an application at all. It would have been unnecessary for Owens to deny her one in light of the policy when, if she was not wanted, she need not have been called in for an interview. Ms. Nees would like to be compensated for the time she was improperly denied employment by Delchamps and would like to be offered a permanent job at the store. She is concerned, however, that if offered a job as a result of a settlement, she would be discharged shortly thereafter: a result that she does not desire. If she is to be hired, she would like to be assured that she can keep the job and not face layoff as retribution for her actions here. In her post hearing submission, she reiterates her desire for a settlement and a job because she is, apparently, no longer working at the convenience store and the Delchamps store is only two blocks from-her residence. Based on all the evidence, considering the inherent probabilities and improbabilities of the testimony, it is obvious that Ms. Nees is anxious to be employed by Delchamps and/or to receive compensation from them. She has, however, scant evidence to establish that she was discriminated against because of her age. She admits that there were no openings at the time of her alleged conversation with Mr. Owens, and that she also filed a discrimination complaint against Eckerd' s, again knowing that no vacancies existed. When Ms. Nees was not hired, it was clearly for undisclosed reasons other than her age and there is no evidence of any discrimination by Respondent
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petition for Relief filed by Jo Nees be denied. RECOMMENDED in Tallahassee, Florida this 9 day of May, 1986. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1986. COPIES FURNISHED: Jo Nees Box 89 Destin East Mobile Home Park Destin, Florida 32541 William C. Tidwell, Esquire Post Office Box 123 Mobile, AL 36601 - Donald A. Griffin, Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The issue is whether the proposed award of the contract for Request for Proposals (RFP) No. P2032 to Daniel Memorial, Inc. (Daniel), is contrary to the specifications of the RFP.
Findings Of Fact DJJ issued RFP No. P2032 on April 2, 2007. The RFP solicited proposals for a “20-slot day treatment program for youth placed on Probation, being released from a residential program, transitioning back into the community or classified as minimum risk, and a 100-slot service- oriented Intervention program with comprehensive case management services for youth which the programs are currently located in Pinellas and Pasco Counties ” The contract resulting from the RFP will be for a three-year term -- July 1, 2007 through June 30, 2010 -- with a renewal option for up to an additional three years at DJJ’s sole discretion. The RFP states that the maximum annual contract amount is $948,308, and prospective providers were required to propose a price at or below that amount EYA and Daniel submitted timely, responsive proposals in response to the RFP. Daniel’s proposal offered a slightly lower price than EYA’s proposal.1 On June 11, 2007, DJJ posted notice of its intent to award the contract to Daniel. Thereafter, EYA timely filed a notice of intent to protest and a formal written protest challenging the proposed award of the contract to Daniel. The RFP provides that the proposals were to be evaluated and scored in three categories: technical proposal, financial proposal, and past performance. The past performance category focuses on the prospective provider’s knowledge and experience in operating non-residential juvenile justice programs. The criteria related to the past performance category are contained in Attachment C to the RFP. Attachment C consists of three parts: Part I - Past Performance of Non-Residential Programs; Part II - Evaluation for Past Performance in the United States Outside of Florida; and Part III - Evaluation for Professional Accreditation in the United States. The focus of the dispute in this case is on Part III. A proposal could receive a total of 1,000 points if, as is the case with both EYA and Daniel, the prospective provider operated other DJJ-contracted non-residential programs in Florida. The proposals could receive up to 240 points for Attachment C, with a maximum of 40 points for Part III. The RFP provides that the proposal that receives the highest total points will be awarded the contract. Daniel’s proposal received a total of 600.13 points, which was the highest overall score. Daniel received 176 points for Attachment C, including 30 points for Part III. EYA’s proposal received a total of 573.46 points, which was the second highest overall score. EYA received 143.7 points for Attachment C, including zero points for Part III. EYA contends that Daniel should not have received any points for Part III, which would have resulted in Daniel’s overall score being 30 points lower, or 570.13, and would have given EYA the highest overall score. Part III of Attachment C asks whether the prospective provider currently operates non-residential juvenile justice programs that are accredited and in good standing with certain accrediting agencies, including the Council on Accreditation (COA). If so, the RFP requires the prospective provider to include supporting documentation. The prospective provider receives 10 points for each accredited program listed in Part III of Attachment C. The RFP states multiple times that the supporting documentation “must include the start and end dates [of the programs], be current dated and valid at least through the start date of the Contract that results from this RFP,” and that it must state that “the program cited is a non-residential juvenile program and that is run by the prospective Provider.” The RFP also states multiple times that a prospective provider’s failure to provide the required supporting documentation “shall” result in zero points being awarded for Part III of Attachment C, and that DJJ “is not responsible for research to clarify the prospective Provider's documentation.” EYA did not list any programs in its response to Part III of Attachment C. Its wilderness programs are accredited by COA, but its non-residential juvenile justice programs are not accredited. EYA is currently seeking COA accreditation for the services provided in its non-residential programs based, in part, on DJJ’s scoring of Daniel’s proposal in this proceeding. Daniel listed three programs in its response to Part III: a behavioral management program in Circuit 4; a conditional release program in Circuits 6 and 13; and a behavioral management program in Circuit 7. The documentation provided by Daniel to show that the listed programs are accredited was a letter from COA dated August 18, 2006. The letter confirms that Daniel is accredited by COA; that the accreditation runs through September 30, 2010; and that the accreditation includes “the following programs:” Mental Health Services Psychosocial and Psychiatric Rehabilitation Services Employee Assistance Program (EAP) Services Case Management Services Foster and Kinship Care Services Supported Community Living Services Residential Treatment Services The letter does not on its face refer to the three programs listed by Daniel in its response to Part III. The letter does not on its face reflect whether the listed services were accredited in non-residential programs (as compared to residential programs) or in juvenile justice programs (as compared to adult programs or juvenile programs that do not involve the juvenile justice system). Each of the three programs listed by Daniel in its response to Part III is a non-residential program operated under contract with DJJ. Those programs were also listed by DJJ contract number in Daniel’s response to Part I of Attachment C. Paul Hatcher, the DJJ employee who evaluated the responses to the RFP with respect to Attachment C, was familiar with the three programs listed in Daniel’s response to Part III. He knew from his experience and his review of Part I of Attachment C that the programs were non-residential juvenile justice programs and he knew that the programs provided case management services and mental health services. Mr. Hatcher acknowledged that the COA letter does not specifically mention the three listed programs. He nevertheless considered the letter to be sufficient documentation of accreditation for the three programs because the letter indicated that Daniel, as an organization, was accredited and that it had specific accreditation for the services provided at the three listed programs. COA accredits organizations and services, not specific programs.2 On this issue, Dr. Hilda Shirk, a member of the COA Board of Trustees and an experienced COA peer reviewer, testified that “COA accreditation applies to the entire organization and the services that it provides” and that Daniel’s accreditation includes all of its programs that fall under the service areas listed in the COA letter, which is consistent with Mr. Hatcher’s interpretation of the letter. COA does not separately accredit services provided in residential and non-residential settings, nor does it separately accredit services provided to adults or juveniles. The standards used to evaluate case management services and mental health services, for example, are the same notwithstanding the setting or the type of client being served. COA performed its on-site accreditation review of Daniel in April 2006. It is unlikely that two of the three programs listed by Daniel in response to Part III -- the conditional release program in Circuits 6 and 13 (DJJ Contract No. P2013 and the behavior management program in Circuit 7 (DJJ Contract No. G8101 -- were evaluated by COA as part of that review because those programs had just started. That does not mean, however, that those programs are not accredited. Indeed, Dr. Shirk testified that an organization is not required to submit each new program to COA for review if the services offered in the program fit within a service area for which the organization has been accredited.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that DJJ issue a final order dismissing the EYA’s protest and awarding the contract for RFP No. P2032 to Daniel. DONE AND ENTERED this 14th day of December, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2007.
Recommendation There are factors in mitigation which should be considered in this case to include the following: Carlson and Benedict had personal reasons for discrediting Beach and their actions show their anamosity toward her. The events which constituted the majority of the charges against Beach happened over one year before the Report was made to the Florida State Board of Nursing by Carlson. Beach worked at Lancaster Youth Development Center approximately seven years. She received good efficiency ratings for her employment from Carlson and Benedict for the period of time covered by the allegations relating to employment of unlicensed persons and unauthorized administration of medication, although, if their testimony is believed, they had knowledge of these matters. The testimony of the witnesses is largely unsupported by any physical evidence with the exception of the testimony of Rollings, whose testimony was rejected because of the changes which she had made from her original statements. Beach called and obtained authority to administer valium to a rape victim, who under any reasonable interpretation of the Department of Health and Rehabilitative Services policy, was entitled to treatment at the infirmary. Having sought authority to administer valium under these circumstances, it is difficult to conclude that she would have administered valium or any other prescription drug to Rollings or Campbell without obtaining authority. Based upon the foregoing findings of fact, conclusions of law, and factors in mitigation, the Hearing Officer recommends that the Florida State Board of Nursing take no action against the license of Adeline Beach. DONE and ORDERED this 31st day of May, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire Florida State Board of Nursing 1107 Blackstone Building Jacksonville, Florida 32202 Smith and Johnson Post Office Box 508 Gainesville, Florida 32602
The Issue Whether Centerstone of Florida, Inc. (Respondent or Centerstone), discriminated against Latonia Enzor (Petitioner) on the basis of her race in violation of the Florida Civil Rights Act of 1992 when Respondent terminated Petitioner’s employment, as alleged in Petitioner’s Charge of Discrimination.
Findings Of Fact Respondent, Centerstone of Florida, Inc., is a not-for- profit corporation offering behavioral health and addictions treatment services. Petitioner, Latonia Enzor, is a black female who was employed by Centerstone from November 3, 2014, to January 11, 2016, as a behavioral health technician in Centerstone’s addiction treatment center in Bradenton, Florida. As a behavioral health technician, Respondent served as a paraprofessional member of the therapeutic team for clients admitted to Centerstone’s inpatient addiction treatment center. Petitioner’s duties included providing client support and advocacy in the form of data gathering and reporting, activities therapy, crisis intervention, and maintaining a safe, orderly, and secure physical environment for the residential clients throughout their recovery process. During the period from September 5, 2015, through January 4, 2016, Respondent received at least seven written grievances containing complaints against Petitioner. The grievances were submitted to Respondent’s staff by various residential clients who were admitted to Respondent’s inpatient addictions recovery facility where Petitioner worked. Specifically, Respondent offered into evidence seven grievance forms dated: September 5, 2015; September 5, 2015; December 8, 2015; December 9, 2015; December 30, 2015; January 4, 2016; and January 4, 2016. The first two written grievances against Petitioner in September 2015 contained general allegations that Petitioner was rude and demeaning towards the residential clients. In the fall of 2015, upon receipt of the first two grievances, Petitioner’s direct supervisor, Jessica Crosby, met with Petitioner, informed her of the allegations, and discussed Respondent’s concerns regarding Petitioner’s behavior towards the clients. Despite those discussions, over the next few months, Respondent received at least five more written complaints from various residential clients regarding Petitioner’s behavior. Of note, the last grievance form, received January 4, 2016, was signed by 16 out of the 20 clients residing in the addiction recovery facility at the time. The grievances filed against Petitioner generally alleged the following: Petitioner told a client that the client “wasn’t going to make it” through recovery; Petitioner threatened to cancel Christmas visitation for clients’ friends and family members, without having the authority to do so; Petitioner told female clients that they had to stop exercising in the common area because she felt the male clients were looking at the female clients inappropriately; Petitioner was heard referring to a male client as a “womanizer” and other clients as “mother fuckers”; Petitioner denied clients access to coffee as a form of punishment, without having the authority to do so; Petitioner unnecessarily violated a client’s right to privacy when she entered a male client’s bathroom door without permission and without a valid reason for doing so; Clients reported that Petitioner acted aggressively towards them, used “prison talk,” “writes the law as she goes,” abused her power over clients, made her own forms of punishment, disrespected clients, and had an overall negative and discouraging attitude around the clients. On January 5, 2016, Respondent placed Petitioner on administrative leave in order to investigate the allegations contained in the grievances. Jessica Crosby conducted the investigation. In addition, on January 6, 2016, Ms. Crosby and Centerstone Director of Human Resources, Colleen O’Conner, contacted Petitioner by telephone and asked her to provide a verbal statement in response to the allegations. Crosby and O’Connor contemporaneously documented Petitioner’s responses during the telephone conference, which was admitted into evidence as Respondent’s Exhibit 8. Ms. Crosby testified that following her investigation into the grievances and their telephone conversation with Petitioner, she determined that the allegations regarding Petitioner’s actions to be largely substantiated. Ms. O’Connor agreed with Ms. Crosby’s assessment and recommended that Respondent’s employment be terminated. The investigation was also reviewed by several members of Centerstone’s corporate management team, who approved of the decision to immediately terminate Petitioner. On January 11, 2016, Respondent informed Petitioner that her employment was terminated based on unsatisfactory job performance, violation of client rights, and misuse of authority over clients in a secure, residential addictions treatment setting. Petitioner was thereafter replaced by an individual whose self-declared ethnicity is “two or more races.” Petitioner’s discrimination Complaint filed with the Commission on February 25, 2016, alleges that she was discriminated based on race because she was terminated without reason despite receiving positive performance evaluations in the past. Petitioner did not present any direct or circumstantial evidence establishing that Respondent discriminated against Petitioner because of her race by terminating her employment. Petitioner suggested at the final hearing that the residential clients admitted to the Centerstone addiction treatment facility acted with discriminatory intent when they filed the grievances against her because most of the clients were white, but no evidence was offered to support this conclusory allegation based on hearsay. Further, Petitioner acknowledged that she never relayed this concern directly to Centerstone management or human resources or otherwise complained to management that she felt she was being discriminated against based on her race in any way during her employment at Centerstone. Ms. Crosby and Ms. O’Connor testified that the decision to terminate Petitioner’s employment was based entirely on issues regarding Petitioner’s treatment of clients and their concern for the safety and well-being of the clients during their recovery process, and that Petitioner’s race was not a consideration in the decision whatsoever. Respondent denied harboring any discriminatory animus towards Petitioner, and the evidence did not otherwise demonstrate any indication of discriminatory intent on the part of Respondent. Further, Petitioner failed to present any evidence establishing that a similarly-situated employee who was not in her protected class committed similar acts but was, or would have been, treated differently. On the other hand, Respondent’s witnesses testified that if any other employee in Petitioner’s position engaged in similar conduct, such employee would be subject to immediate termination regardless of his or her race, especially considering the importance Respondent places on client respect and sensitivity in the substance abuse recovery setting. Finally, Petitioner failed to present any evidence establishing that Respondent’s reason for terminating her employment was a mere pretext for racial discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 24th day of May, 2017, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2017.
The Issue The issue is whether Respondent's decision to reject all bids in DJJ Solicitation Number: RFP# P2043 was illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Parties DJJ is a state agency whose mission is to reduce juvenile delinquency. One of the methods used to attempt to attain this goal is through the provision of community-based intervention services programs for boys and girls. EYA and the White Foundation, both of whom are not-for- profit foundations, are contractors who are in the business of providing community-based intervention services for boys and girls. There are about 320 to 360 contracts between DJJ and private contractors. Both EYA and the White Foundation, at all times pertinent, had contracts with DJJ. The White Foundation operates only non-residential programs. EYA operates both non- residential and residential programs. Background In RFP#R2043 dated April 30, 2008, DJJ solicited requests for proposals for a contract to provide, "A 120-slot community based intervention program for boys and girls in Circuit 5 (Marion, Citrus, Hernando, Sumter, and Lake Counties, as described in the Scope of Services (Exhibit 1)." EYA is the current operator of the program and continues to operate the program pursuant to an extension of their current contract. That extension is set to expire December 31, 2008. The program sought can be further described as a nonresidential, service-oriented intervention program with comprehensive case management services for department-served youth through the development of a provider designed, developed, implemented, and operated intervention program for youth. The program is to serve youth on probation, conditional release, or post-commitment probation, and is to include supervision of youth transitioning from a residential commitment program, released from residential commitment program for post-commitment services, or placed on probation. The RFP provided that "The Department reserves the right to accept or reject any and all bids, or separable portions thereof, . . . if the Department determines that doing so will serve the State's best interests." EYA and the White Foundation submitted timely, responsive proposals. Proposals were also submitted by Gulf Coast Treatment Center, Psychotherapeutic Services of Florida, Silver River Mentoring & Instruction, Community Action Foundation of Citrus County, and Taylor Human Services. No responder availed themselves of the opportunity to ask questions about the RFP. On June 20, 2008, DJJ published its notice of intent to award the contract to EYA. On June 25, 2008, DJJ published a notice of its withdrawal of its previous decision on the RFP and its intended decision to re-issue the solicitation for the program. On June 26, 2008, the White Foundation timely filed a notice of intent to protest DJJ's intended decision. On July 9, 2008, the White Foundation timely filed a formal bid protest challenging DJJ's intended decision. Evaluation generally The language contained in the RFP is boilerplate language that is repeated with little change in all solicitations for both non-residential and residential programs, with the exception of the scope of services portion. Attachment D of the RFP is entitled, "Evaluation Criteria." It provides that the proposals are to be evaluated and scored in three categories: technical proposal (referred to as "Volume 1"), financial proposal (referred to as "Volume 2"), and past performance (referred to as "Volume 3"). Generally, at DJJ, an evaluation panel of three to five evaluators reviews Volume 1, the programmatic elements, or the technical proposal. In this case, three evaluators scored Volume I. The financial proposal, or Volume 2, was a mathematical formula that essentially required no subjective analysis. A single evaluator simply determined the lowest price that was under the maximum amount the RFP permitted. The evaluation of the third part or Volume 3, past performance, was accomplished by Senior Management Analyst II, Paul Hatcher, acting alone. Mr. Hatcher has been an employee of DJJ for 23 years and has been an evaluator of RFPs for seven years. His role in evaluating the RFP was intended to be objective. In other words, he was tasked with reviewing the information provided and ensuring that it met the requirements of the RFP. His evaluation was not supposed to be subjective or judgmental. Typically, and in this case, subsequent to the evaluation of the parts, the DJJ Contract Administrator enters the various scores into a bid tabulation sheet to determine the high scorer. It is DJJ's intention in all cases to award the contact to the prospective provider whose proposal receives the most points. In this case, on June 19, 2008, the contract administrator determined that EYA received 817.22 points and the White Foundation received 785 points. Other responders scored lower. To the extent the controversy is concerned with which party should have been awarded the most points, the focus is on the past performance evaluation. The past performance category addresses the prospective provider's knowledge and experience in operating non-residential juvenile justice programs. The criteria related to the past performance category, Volume 3, are contained in Attachment C to the RFP. Attachment C consists of three parts: Part I - Past Performance of Non-Residential Programs; Part II - Evaluation for Past Performance in the United States Outside of Florida; and part III - Evaluation for Professional Accreditation in the United States. Attachment C further states that if the prospective provider has received DJJ Quality Assurance (QA) reviews and recidivism rate results for its non-residential programs, the provider should complete only Parts I and III. Both the White Foundation and EYA had QA reviews and thus were required to address only Parts I and III. This information was available to all parties through access to DJJ databases. Part I of Attachment C - Past Performance of Non-Residential Programs Part I of Attachment C permitted the assignment of 100 points for "Average QA." For programs receiving a quality assurance review prior to 2007, responders could receive up to 75 points for performance scores and up to 25 points for compliance scores. Part I provided a grid entitled, "Attachment C-1 Part I, Data Sheet: Past Performance of Non-Residential Programs." (past performance data sheet). The past performance data sheet has columns labeled "Contract Number," "Program Type," "Contract Begin Date," "Contract End Date," "Most Recent QA Performance Percentage Score," "Most Recent QA Compliance Percentage Score (if evaluated prior to 2007)," and "Failure to Report." There is also a column entitled "Number of Completions during FY 2005-2006" in which is recorded the number of youths who complete the programs. A final column is labeled, "2005- 2006 Recidivism Rate." The "Most Recent QA Performance Percentage Score," "Most Recent QA Compliance Percentage Score (if evaluated prior to 2007)," "Failure to Report," "Number of Completions during FY 2005-2006," and "2005-2006 Recidivism Rate," are found in databases available from DJJ. This form is quite similar to the forms in RFPs for the residential programs. Ashley Nevels, an accountant, and vice-president of administration for the White Foundation, reviewed all of the records pertaining to the responses to the RFP. Mr. Nevels found Volumes 1 and 2 to be essentially correct. He found errors in Volume 3. Though not qualified or considered as an expert witness, his testimony was helpful in illuminating the forms and procedures used in evaluating the responses. Mr. Nevels carefully reviewed responses in Volume 3 submitted by the White Foundation and EYA. With regard to the past performance data sheet, he found that there was information provided by EYA that was erroneous and information that was omitted. He found that Mr. Hatcher had corrected the erroneous information supplied by EYA, but did not consider whether or not it was complete. Mr. Nevels concluded that the White Foundation was correct in its report as presented on the past performance data sheet. Laura Moneyham, an employee of DJJ, working in its purchasing section, also reviewed the past performance data sheet. She found that EYA should have been awarded only 813.04 total points instead of the 817.22 that Mr. Hatcher awarded. In other words, EYA received 4.18 more points than it should have received. Her findings generally comported with Mr. Nevels, except he believed EYA received slightly more underserved points than reported by Ms. Moneyham. Based on the testimony of Mr. Nevels, the figures derived by Ms. Moneyham, and a review of the data contained in the exhibit, it is found as a fact that EYA should have received at least 4.18 fewer points on the Attachment C-1 Part I, Data Sheet, than was awarded by Mr. Hatcher. It is further found that the White Foundation's data was correct. The errors found on the past performance data sheet would have not affected the outcome of the award. After corrections, EYA would still have enough points to prevail. However, there was also an error in scoring the Part III accreditation portion of Attachment C. As Ms. Moneyham found on her re-scoring, and as Mr. Nevels had found, the White Foundation was entitled to 30 more points than it received in that category. Part III of Attachment C - Evaluation for Accreditation It was DJJ's policy, through the accreditation section that was denominated in Part III, to reward providers with points in the procurement process for achieving accreditation status. This was DJJ's policy because accreditation is a qualified endorsement by an outside, objective party that confirms that an organization conforms to recognized service standards. Ten points were to be awarded for each accredited program submitted in the response to the RFP. Both EYA and the White Foundation submitted information on three accreditations. Both responders were eligible to receive 30 points in this category. Attachment C provides, with regard to Part III - Evaluation for Professional Accreditation in the United States, found at page 16 of 63 of the RFP, as follows: All documentation provided . . . must include the start and end dates, be current dated and valid at least through the start date of the Contract that results from this RFP. The documentation shall also state that the program cited is a non-residential juvenile program and that it is run by the prospective Provider. The Department will verify all information received but is not responsible for research to provide information not submitted and documented by the prospective Provider. Failure to provide the required supporting information for Parts II or III of the attachment shall result in a score of zero (0) for that section. EYA responded to Part III by providing a copy of page 24 of the RFP and providing copies of three certificates from the Council on Accreditation (COA) indicating that EYA was accredited in Circuits 6, 7, and 11; a letter from the copies of Bureau of Quality Assurance Performance Rating Profiles; and an explanation that the three programs are operated in the United States under DJJ contract, are non-residential programs, and are operated under the CBIS program model. The EYA certificates did not indicate start dates. Nevertheless, Mr. Hatcher awarded 30 points to EYA. The White Foundation responded to this section by providing copies of pages 20-23 of the RFP and three certificates from the Commission on Accreditation of Rehabilitation Facilities (CARF) that indicated that the White Foundation was accredited. Mr. Hatcher awarded no points to the White Foundation in the accreditation category. Mr. Hatcher arrived at the White Foundation's score, or non-score, by referring to Part III of Attachment C of the RFP. In that section there appears a list of four accreditation organizations. Accreditation by one or more of these organizations can result in a responder receiving points for the section. Following the list of acceptable accreditation organizations, the form inquires, "Does the prospective provider currently operate or perform a non-residential juvenile justice organization/program/facility/service ('accredited entity') in the United States which is being offered as a part of its RFP proposal, and is that accredited entity in good standing and without restrictions by: . . . " and lists four accreditation agencies. The evaluator is to check "yes" or "no." Immediately following this language, the form recites 12 standards to be addressed if the responder answers "yes." These standards serve as the base requirements for a responder to have an acceptable "yes." Mr. Hatcher found that the White Foundation had not complied with standard eight of the 12 standards, which states, "Must provide documentation that establishes the accredited entity is offered as part of the prospective provider's proposal (i.e. RFP) proposal page and/or section reference)." Mr. Hatcher believed standard eight required documentation of the specific page and section of the RFP to which the accreditation would apply, and that was not provided by the White Foundation in Part III. He believed the White Foundation was required to provide a reference to a specific portion of Volume 1. Because the accreditations supplied did not provide a reference to a proposal page or section, Mr. Hatcher, using a strict interpretation of the requirement, found it to be noncompliant. Mr. Hatcher could have looked at Volume 1 of the White Foundation's response and found the information that was required. He did not look at Volume 1 because he believed that would be "research" of the type prohibited by the guidance found at page 16 of 63 of the RFP. Subsequent to the announcement of the agency decision revealing that EYA had prevailed, as noted, Mr. Nevels and Ms. Moneyham reviewed the evaluations for past performance. Lisa J. Eaton, a Senior Management Analyst II, who is employed by DJJ, also reviewed the evaluations for past performance. Interpreting the same language Mr. Hatcher used for guidance, they all arrived at the opposite conclusion with regard to accreditation and determined that the White Foundation should have been awarded 30 points. It is found as a fact that standard eight of the 12 standards, when read in conjunction with the guidance provided in the first paragraph of Attachment C, Evaluation of Past Performance for Non-Residential Programs, at page 16 of 63, provided guidance that could confuse an evaluator and could result in a decision with regard to accreditation that was contrary to DJJ policy that DJJ attempted to express in the RFP. Agency deliberations with regard to the decision to reject all bids It was brought to the attention of DJJ in December of 2007, by the Recommended Order in Eckerd Youth Alternatives, Inc. v. Department of Juvenile Justice, Case No. 07-4610BID (DOAH December 14, 2007), that the past performance portion of their RFP was infused with ambiguity. As a result, an attempt was made to clarify the type of information that was desired to satisfy the accreditation portion of the past performance part of the RFP. After the responses to RFP# P2043 were received and scored, the contract section of DJJ determined that Mr. Hatcher's scoring was inconsistent with the scoring that had been done on residential RFPs even though the two were 99 percent congruent. The evaluators of the residential programs would provide information omitted by a response, and correct information that was incorrect when submitted. Then they would score the response. Unlike the residential scorers, Mr. Hatcher did not count QA programs that were missing, but did correct information that was incorrect when submitted, if the contract numbers were correct. This meant that a potential vendor could choose to include their well-performing programs and not report programs that were performing poorly, and thereby gain an advantage. This did not comport with the desires of DJJ. DJJ staff also determined that Mr. Hatcher failed to score the accreditation portion in accordance with their policy objectives. Amy Johnson, Chief of the Bureau of Contracts, believed that Mr. Hatcher was confused by the language of the RFP and that accounted for his incorrect scoring. Upon reviewing the situation, Deputy Secretary Rod Love and Assistant Secretary Darryl Olson determined that all bids should be rejected and the process begun anew. It cannot be determined from the evidence whether that decision was made before the White Foundation protested, or after. As a result of the difficulties experienced in RFP# P2043, DJJ staff have attempted to further clarify that information that is omitted or inaccurate will be corrected and used. They have removed standard eight of the 12 standards that referred to the need to cross-reference. It was DJJ's intent to have consistent interpretations and scoring of proposals throughout the Department, and in particular, between bids for residential and non-residential programs. In order to carry out that intent, DJJ decided to reject the bids and initiate a new RFP for the desired project. There was no evidence that the actions of DJJ were illegal, dishonest, or fraudulent. For reasons that will be addressed below, the decision to reject all bids also was not arbitrary.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Department of Juvenile Justice issue a final order dismissing the Petition and Formal Protest filed by Petitioner. DONE AND ENTERED this 27th day of October, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 27th day of October, 2008. COPIES FURNISHED: Donna Holshouser Stinson, Esquire M. Stephen Turner, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Tonja V. White, Esquire Department of Juvenile Justice Knight Building, Room 312L 2737 Centerview Drive Tallahassee, Florida 32399-3100 Martha Harrell Chumbler, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this case is whether Petitioners, foster parents trained in the care of children with medical disabilities, permitted a two-year-old medically disabled deaf child to be unattended during a brief conversation, resulting in the child's later being found facedown in the family's swimming pool; and as a result of that near-drowning experience is permanently on a life support system, are guilty of having committed an intentional or negligent act materially affecting the health or safety of the medically disabled child.
Findings Of Fact Based upon the demeanor of the witnesses while testifying, exhibits admitted in evidence, and the arguments of the parties, the following relevant, material, and substantive facts are found: Respondent is the state agency responsible for licensing and regulating foster care in the state. Petitioners were granted a medical foster care license on August 31, 2000, after making application with Help-A-Child, Inc., and being approved by the Department under Section 409.175, Florida Statutes. At all times material to this case, Petitioners, Ronald Bryson and Joyce Bryson, husband and wife, resided at 1476 Highland Circle, in Pinellas County, Florida. Petitioners completed required training in fostering medically needy foster children, and medically needy children were placed with Petitioners through Help-A-Child, a placement agency that specialized in placing medically needy children with special trained foster parents. Petitioners fostered three medically needy children. One medically needy child fostered by Petitioner was A.S., born on April 21, 2000. A.S. suffered with Wardensburg Syndrome (genetic deafness), microcephalic, developmental delays, weakness of motor skills, short stature, and had been in Petitioners' foster care for 14 months, from February 2001 to April 17, 2002, until removed because of a near-drowning incident on April 17, 2002. On April 17, 2002, while fostered at Petitioners' family residence, A.S. was found facedown in Petitioners' swimming pool. The swimming pool is not attached to the family residence. After removing A.S. from the pool, Cardio Pulmonary Resuscitation (CPR) was administered, 911 called, and A.S. was Bayflighted to a hospital in Broward County, Florida. Upon her arrival at the Broward County hospital A.S. was placed on a life support system where she shall remain indefinitely. In response to the 911 call, Sergeant Torres, Clearwater Police Department, along with the patrol office, were the first law enforcement personnel on the scene. Detective Kliensorge, accompanied by Detective Fellicci, arrived shortly thereafter. Detective Kliensorge conducted the initial investigation of A.S.'s near-drowning incident. The record evidence establishes the incident to have occurred sometime between 5:00 p.m. and 5:15 p.m. on April 17, 2002. Petitioner, Joyce Bryson, recalled the following sequence of events leading up to the near drowning of A.S. She and her two grandchildren, Cazi and Izac, had been in the back yard in the swimming pool. She escorted her two grandchildren from the swimming pool through an aluminum screen door onto the patio and through a sliding glass door into the kitchen. After they were in the kitchen, Joyce Bryson instructed her grandchild, Cazi, "to close the door." Joyce Bryson assumed Cazi or Izac closed the sliding glass door and further assumed that the sliding glass door leading into the kitchen and the aluminum screen door on the back porch were both locked. Joyce Bryson did not personally check to ascertain whether the sliding glass door or the aluminum screen door was locked after entry by she and her grandchildren. Once in the kitchen, Joyce Bryson began cooking chicken nuggets and French fries for her grandchildren's birthday dinner. During this time in the kitchen, A.S. was in her sight and in her presence. Joyce Bryson finished cooking the chicken nuggets and French fries. She then seated her grandchildren and at the dining room table. She then lifted Savannah, another foster child, out of her swing set and placed Savannah in her highchair. During these several activities, A.S. was constantly at her side. After Joyce Bryson seated her grandchildren at the dining table; Matt Wolfe, the prospective adoptive parent of Savannah, came into the kitchen. Upon his arrival, Joyce Bryson took Savannah out the highchair and gave her to Matt Wolfe who held her in his arms. With Matt Wolfe holding Savanna, he and Joyce Bryson engaged in a short conversation. At some point during the conversation with Matt Wolf, Joyce Bryson became aware that A.S. was no longer in her presence or within her sight. Joyce Bryson asked of everyone "Where is Angela?" Ronald Bryson, her husband; Mr. Wolf; and her two grandchildren looked about the house for A.S. After an undetermined amount of time, but not more than five minutes,1 A.S. was found face down in the swimming pool by one of Joyce Bryson's grandchildren. In a time span of approximately two to eight minutes, A.S., with weak motor skills, traveled unnoticed from the kitchen area, across the back porch into Petitioners' swimming pool. Due to A.S.'s deafness, Joyce Bryson's minimum duty of care required A.S. to be within her presence or within her sight at all times. During the time interval when Joyce transferred Savannah from her swing to her highchair and from her highchair to Mr. Wolf's arms followed by her conversation with Mr. Wolf, Joyce Bryson did not have A.S. within her sight, and the near drowning incident occurred. But for Joyce Bryson's lack of attention to A.S.'s whereabouts during the time period she was moving Savannah from her swing to her highchair and from her highchair to Mr. Wolf's arms, followed by her conversation with Mr. Wolf, A.S. would not have been able to move from her side into the swimming pool, unobserved. I find that Joyce Bryson's negligent lapse of attention to be the primary cause of A.S.'s near-drowning episode. Based upon the Findings of Fact herein above, Respondent has proven that Petitioners committed a negligent act materially affecting the health or safety of the medically disabled child, A.S.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that: The Department of Children and Family Services enter a final order affirming revocation of Petitioners' license. DONE AND ENTERED this 29th day of January, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 29th day of January, 2003.
