The Issue The issue is whether Petitioner has proved that Respondent employed the requisite number of employees to establish jurisdiction in the Florida Commission of Human Relations over an alleged claim of employment discrimination against Respondent.
Findings Of Fact South Florida Business Ventures, Inc. (SFBV) was incorporated about ten years ago. For the past five years, SFBV has provided telemarketing services for "Ramada Plaza Resorts." These services provide substantially all of the revenue of SFBV. For this case, "Ramada Plaza Resorts" is SFBV. A corporation known as "Ramada Plaza Resorts Orlando/Ft. Lauderdale Vacations, Inc." (RPR, Inc.) is in the business of selling timeshare units. The tradename "Ramada Plaza Resorts" enjoys wider use and not merely by RPR, Inc. or the legal owner of the tradename, if different from RPR, Inc. However, for this case, "Ramada Plaza Resorts" does not refer to RPR, Inc., or the owner of the tradename. Petitioner earlier filed a charge of discrimination directly against SFBV, which the Commission has dismissed. Petitioner did not continue to prosecute that case after its dismissal, but has instead prosecuted this case against "Ramada Plaza Resorts." Regardless of the wisdom of abandoning the case against the proper legal entity and proceeding against a fictitious name, Petitioner's present claim, as a matter of fact, is against SFBV, doing business as "Ramada Plaza Resorts" or as sales agent of RPR, Inc. To avoid confusion, this Partial Recommended Order shall refer to Respondent simply as SFBV, and not as SFBV doing business as Ramada Plaza Resorts or as agent of RPR, Inc. During 2003 and 2004, RPR, Inc., entered into contracts with several telemarketers, not only SFBV. The role of SFBV was to sell to the public three- or five-night "vacations" to Orlando, Ft. Lauderdale, or Las Vegas--essentially providing potential timeshare purchasers to RPR, Inc., which would promote its timeshare units to the "vacationers" during their "vacations." At the end of each telemarketing call that resulted in a sale by SFBV, the telemarketers transferred the call to a call center operated in Ft. Lauderdale by RPR, Inc., where a person employed by RPR, Inc., confirmed the sale and the accuracy of the material representations made by the telemarketer. In June 2004, Petitioner saw a newspaper advertisement seeking a receptionist. The advertisement states in part: "Ramada Plaza Resorts Industry leader hiring . . .." Petitioner telephoned the number listed, which belonged to SFBV, and was given an interview at an office in Boynton Beach, which was the headquarters of SFBV. Nothing in the advertisement mentioned SFBV. The office building to which Petitioner was directed bore a sign, "Ramada Plaza Resorts." Entering the office, which bore no sign indicating that it was the office of SFBV, Petitioner asked for Kelly Mincey, as she had been instructed to do by the person with whom she had spoken on the telephone. SFBV employed Ms. Mincey as its administrator. Among her duties for SFBV was human relations, including the hiring of secretaries. Ms. Mincey has worked for SFBV for four years. During the interview, Ms. Mincey explained to Petitioner that the receptionist was required to answer telephone calls, perform data entry, and fax memos to the Ft. Lauderdale office. Specifically, Ms. Mincey directed Petitioner to answer the telephone, "Ramada Plaza Resorts. How may I direct your call?" In entering data, Petitioner inputted the identification number for each buyer. In faxing memos to Ft. Lauderdale, Petitioner's testimony did not establish whether these documents went to SFBV's Ft. Lauderdale office or RPR, Inc., whose main office was in Ft. Lauderdale. Ms. Mincey gave Petitioner an employment application. It was a form that did not bear the name of the employer. After examining the completed application and performing the job interview, Ms. Mincey offered the job to Petitioner, who accepted it and, shortly after the interview, began working at the Boynton Beach office of SFBV. SFBV employed Petitioner. SFBV issued her payroll checks, which bore the name of SFBV. Petitioner's W-2 form bore the name of SFBV as her employer. Any claim of Petitioner that she was employed by some other entity alone or in conjunction with SFBV is unsupported by the evidence. The evidence supports the subordinate finding of a sales agency relationship between SFBV and RPR, Inc., so as to support the ultimate finding that "Ramada Plaza Resorts," as used in this case to identify Respondent, means SFBV. However, the evidence is not sufficient to find an employment agency relationship for the purpose of finding that Respondent was employed by RPR, Inc., or the owner of the tradename, or co-employed by RPR, Inc., or the owner of the tradename. In any event, such evidence would be irrelevant anyway because of the absence of evidence as to the number of employees, during 2003 or 2004, of RPR, Inc., or the owner of the tradename. At various times, SFBV operated offices in Boynton Beach, Delray Beach, West Palm Beach, and Ft. Lauderdale. The Ft. Lauderdale office, which was actually in Oakland Park, was open from September through December 2004. SFBV concedes that it employed Warren Izard as president, Kirk Izard as vice-president, Gabriel Izard as an operations employee, Ms. Mincey, and eight receptionists at the four offices operated during 2004. SFBV thus employed these 12 employees in 2004. The jurisdictional dispute centers around the proper classification of two other categories of workers: the persons making the telephone calls and their sales managers. SFBV contends that these persons were independent contractors of SFBV, and Petitioner contends that they were employees of SFBV. A third classification of worker--general manager was restricted to one person, Enrico Merada, so, even if he had been an employee, the total number of employees would still have been less than the jurisdictionally required 15--thus, his status is irrelevant. During 2003 and 2004, 25-100 telemarketers worked at SFBV offices at any given time. However, it is unnecessary to determine whether the telemarketers were employees of SFBV. SFBV employed more than two sales managers during 2004 so that, if they were determined to have been employees, the jurisdictional prerequisite of 15 employees over 20 calendar weeks would have been satisfied. The evidentiary basis for characterizing the sales managers as employees is largely undisputed while the evidentiary basis for characterizing the telemarketers as employees would require discrediting the testimony of SFBV's witnesses, who claimed that the telemarketers were not required to work specific shifts. Two sales managers worked at each of the four offices during 2004. At times during 2004, a total of eight sales managers worked at SFBV's offices. There was little turnover among sales managers. Mr. Merada supervised these sales managers, who, in turn, supervised the telemarketers. Interestingly, Ms. Mincey twice characterized the sales managers as employees of SBFV, distinguishing them from the telemarketers, whom she described as independent contractors. SFBV employed the sales managers and receptionists in pairs because it needed one person in each position at each office for each of the two shifts that it ran daily: a day shift and a night shift. SFBV strictly controlled the work of the sales managers, evidently in an effort to avoid misrepresentations by the telemarketers to purchasers. As required by SFBV, sales managers provided scripts to telemarketers, who were required to stick to the scripts and prohibited from certain acts, such as uttering profanities. As required by SFBV, sales managers provided telemarketers with rebuttals for certain responses from potential buyers and guidelines for what could be said. As required by SFBV, sales managers informed telemarketers that they could make no personal calls and could not sell for other companies while telemarketing for SFBV. To ensure that telemarketers complied with these rules, as required by SFBV, sales managers randomly listened in on calls made by telemarketers. As required by SFBV, sales managers helped telemarketers with the paperwork following sales and sometimes telemarketed directly to potential buyers. SFBV paid the sales managers weekly with SFBV checks and required that they perform their job duties, which included hiring and firing telemarketers, at the SFBV office to which they were assigned and during the shift to which they were assigned. SFBV paid the sales managers based on total sales, so that each sales manager made the same amount during the same pay period, provided they were scheduled for, and actually worked, the same number of shifts. Even if SFBV had operated only three offices, thus with six receptionists and six sales managers, SFBV would have employed 16 employees, if the sales managers were employees. Although at times SFBV may have had only one sales manager at an office, the evidence is clear that, during substantial parts of 2004, including at least 20 weeks, SFBV employed at least six sales managers and six receptionists, and, for the last 17 weeks of 2004, it employed eight sales managers and eight receptionists. In its proposed recommended order, SFBV states: "SFBV sometimes will monitor a Direct Seller's selling pitch " This statement implies an employer-employee relationship between SFBV and the person monitoring the calls of telemarketers, and these employee-monitors were the sales managers. A few lines later, SFBV baldly asserts that sales managers were also "Direct Sellers, not employees." But the contrasts that SFBV draws between sales managers and telemarketers suggest otherwise. Accepting strictly for the sake of discussion SFBV's characterization of its telemarketers, they were not required to work specific shifts, but sales managers had specific shifts for which they had to be in the office to monitor the calls of, and help, the telemarketers. Telemarketers were paid strictly on the basis of what they sold, but sales managers were paid on the basis of the sales during the shifts that they worked. This means that the compensation of sales managers was tied directly to the time that they were in the office working, as opposed to the compensation of the telemarketers, whose pay was not so time- dependent. The effect of this difference is obvious upon consideration that the sales managers were paid equally, if they worked an equal number of shifts, but the telemarketers were paid based on sales, not at all on the amount of time they spend working. Also, there was much churning of telemarketers, unlike the situation with sales managers. And the sales managers had a stricter dress code than did the telemarketers. For both sales managers and telemarketers, SFBV supplied the telephone and office equipment, including computers to automatically dial prospective purchasers. All of this equipment was necessary for the work to be performed. For both sales managers and telemarketers, SFBV provided the names and telephone numbers of potential buyers to be called--also crucially important to the success of the telemarketing effort. The only thing that some telemarketers routinely provided were telephone headsets, which were not necessary to perform their duties. In general, SFBV did not provide fringe benefits to sales managers. But the telemarketing work that they supervised and occasionally performed provided substantially all of the revenue of SFBV. Also, SFBV tightly governed the means by which the sales managers performed their duties. SFBV structured its contract and withholding and reporting practices so as to maximize its prospects for regulatory characterizations of its relationships with telemarketers and sales managers as those of employer and independent contractor, not employer and employee. However, at least as to the sales managers in the context of the jurisdictional requirements of the Act, these practices did not reflect the economic realities of the employer-employee relationship that actually existed between SFBV and its sales managers.
Conclusions For Petitioner: John de Leon Law Offices of Chavez & de Leon, P.A. 5975 Sunset Drive, No. 605 South Miami, Florida 33143 For Respondent: Richard W. Epstein Myrna L. Maysonet Greenspoon Marder, P.A. 201 East Pine Street, Suite 500 Orlando, Florida 32801
Recommendation RECOMMENDED that the Florida Commission on Human Relations enter a Partial Final Order determining that it has jurisdiction over the claims of Petitioner against South Florida Business Ventures, Inc., doing business as Ramada Plaza Resorts or as sales agent of Ramada Plaza Resorts Orlando/Ft. Lauderdale Vacations, Inc., and take such additional action on the claims as is required by law. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 11th day of August, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John de Leon Law Offices of Chavez & de Leon, P.A. 5975 Sunset Drive, No.605 South Miami, Florida 33143 Richard W. Epstein Myrna L. Maysonet Greenspoon Marder, P.A. 201 East Pine Street, Suite 500 Orlando, Florida 32801
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, H. Fleischer, has filed a claim against the bond for $648.95 alleging that Passport failed to perform on certain contracted services. On an undisclosed date in 1991, petitioner responded to a newspaper advertisement promoting a five-day, four-night cruise to the Bahamas for $99.00 per person. After calling a toll-free number, petitioner was told that in order to take the trip, he must purchase a video for $198.00 plus $11.95 postage, or a total of $209.95. Petitioner agreed to purchase the video in order to take advantage of the trip. The advertisement was being run by a telemarketeer in Tennessee who had been authorized to sell Passport's travel certificates. As such, it was acting as an agent on behalf of Passport. In June 1991, the assets and liabilities of Passport were assumed by Incentive Internationale Travel, Inc. (Incentive). Even so, any travel described in certificates sold after that date under the name of Passport was still protected by Passport's bond. Within seven days after receiving the video and other materials, which carried the name, address, logo and telephone number of Passport, petitioner returned the same to the telemarketeer along with a request for a refund of his money. When he did not receive a refund, he filed a complaint with the Department. In response to a Department inquiry, in December 1991 Incentive declined to issue a refund on the ground the video was purchased from a Tennessee firm, and not Passport, and Passport had never received any money from the telemarketeer. Incentive offered, however, to honor the travel certificate by allowing petitioner to purchase a trip to the Bahamas under the same terms and conditions as were previously offered. On July 6, 1992, petitioner accepted Incentive's offer and paid that firm $439.00 for additional accommodations, meals, fees and taxes. Shortly after July 24, 1992, petitioner received a letter from Incentive advising that his trip had been cancelled and that the firm had filed for bankruptcy protection. To date, petitioner has not received a refund of his money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be reimbursed $648.95 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1994. COPIES FURNISHED: H. Fleischer 15 Wind Ridge Road North Caldwell, NJ 07006 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, FL 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, FL 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue The issue is whether Respondent committed an act of discrimination in employment based on age, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner was born on December 11, 1951. She was employed by Respondent from 1977 until December 27, 1999, at which time Respondent terminated her. During the entire term of her employment, Petitioner has served as an outside sales representative. As an outside sales representative, Petitioner was typically assigned a territory within which she was to serve existing advertisers and develop new advertisers. Petitioner often helped customers prepare their advertisements and plan and budget their advertising campaigns. While employed with Respondent, Petitioner helped train Mr. Fine, who has been employed with Respondent for nearly 13 years. Mr. Fine is currently the National Advertising Director, but, during the time in question, served as the Broward Advertising Sales Manager, and, as such, he supervised Petitioner. He served as the Broward Advertising Sales Manager from September 1998 through February or March 2000. While Broward Advertising Sales Manager, Mr. Fine supervised eight sales representatives. Mr. Fine found that Petitioner was strong in persuasiveness, but weak at times when she displayed a negative attitude and sense of entitlement to her job and her way of doing her job. She also treated customers inconsistently. In February 1999, Mr. Fine disciplined Petitioner for her handling of an internal fax that the Broward office received from an employee of Respondent in another office. The fax was addressed to a member of management and contained salary information about five persons in the office. Petitioner happened to find the fax and revealed its contents to her coworkers before delivering it to the addressee. When Mr. Fine reprimanded Petitioner for her actions, she denied any wrongdoing. Next, Mr. Fine began receiving complaints from various of Petitioner's customers, mostly over a relatively short period of time. A marketing person at the Swap Shop complained that Petitioner was brusque in dealing with her. Another customer representative mentioned that Petitioner had criticized one of her coworkers in suggesting that the customer place all of its business with Petitioner. A similar situation arose with another customer, to whom Petitioner claimed that its outside sales representative handled only smaller accounts. A representative of the Florida Philharmonic Orchestra requested that Mr. Fine assign it a new outside sales representative because Petitioner raised her voice and talked down to its young, inexperienced marketing person. On June 29, 1999, Mr. Fine sent a memorandum to his supervisor, Donna Sasser, who was then Advertising Director. The memorandum describes Petitioner as "dynamite" and expresses concern as to when she "will blow and who she will hurt." At the time, Mr. Fine was concerned that Petitioner's actions might undermine morale among the other staff for whom he was responsible. Ms. Sasser advised Mr. Fine to communicate to Petitioner specific expectations in terms of job performance and customer interaction in particular. Mr. Fine met with Petitioner and detailed his problems with her job performance and his expectations for improvement. By memorandum dated July 30, 1999, Mr. Fine memorialized the meeting, including specific customer complaints, and warned that Petitioner's job "will end, even within the next few weeks, if you are unable to achieve the following: no additional customer complaints, monthly goals [met] on a consistent basis; positive, collaborative attitude with co-workers, customers, and managers; [and] acceptance of responsibility for what goes well and what does not go well." Petitioner resisted Mr. Fine's criticism. By memorandum dated August 22, 1999, she defended her actions by pointing to shortcomings elsewhere within Respondent. Significantly, the memorandum does not address the complaints about brusque, discourteous treatment of employees of customers. At this point, Mr. Fine, who was a young manager, was legitimately concerned about whether Petitioner's attitude would undermine his ability to do his job. Mr. Fine resolved to assess over the next three to six months whether Petitioner met the goals that he stated in the July 30 memorandum. In late October 1999, a representative of the Cleveland Clinic complained about Petitioner's handling of its account. The complaints included Petitioner's "flip attitude" and "lack of professionalism." Two months later, Mr. Fine received a more serious complaint because it involved a loss of revenue to Respondent and the advertiser. Due to some miscommunication, Respondent published the wrong advertisement for a customer. When the customer's representative telephoned Petitioner and complained, she blamed someone at the Fort Lauderdale Sun Sentinel, who had supplied her the wrong advertisement for publication. When she did not call him back on the day that she had promised, the customer representative called Respondent, complained about the poor handling of the account, noted the reduction in advertising from his company over the past year as compared to the prior year, and requested a different outside sales representative. Mr. Fine consulted with Ms. Sasser and Janet Stone, the Human Relations specialist assigned to advertising. The three agreed that Respondent should terminate Petitioner. Their decision was submitted through four levels of management--up to the level of Publisher--and each level approved the decision before it was implemented. On December 27, 1999--six days after the receipt of the last complaint--Mr. Fine and Ms. Stone met with Petitioner and told her that she had been terminated. At the hearing, Petitioner presented evidence of a contemporaneous complaint about age discrimination that she had made to a Human Relations specialist who had since left the employment of Respondent. Respondent contested this assertion, but Petitioner's August 22 memorandum states that, as a "female over 40 I feel the harassment and stress that you have been putting on me is totally unnecessary." Although not a formal complaint concerning age discrimination, this memorandum is an early mention of Petitioner's age within the context of harassment. Based on the testimony of coworkers, Mr. Fine was a high-pressure manager, given to yelling, but he did not make age-related comments to Petitioner. Even if Petitioner had timely made comprehensive complaints about age discrimination, the record in this case does not support her claim that her termination was due to age discrimination. Mr. Fine hired two outside sales representatives over 40 years old, and the only other outside sales representative whom he fired was under 40 years old. More importantly, he treated employees the same without regard to age. Most importantly, Petitioner's job performance provided Mr. Fine with ample reason to fire her. Without regard to the quality of the support that Petitioner received, customer satisfaction is paramount in advertising. In a competitive environment, Mr. Fine justifiably sought satisfaction of all customers, not just favored customers. Mr. Fine could not reasonably allow Petitioner to continue to treat discourteously representatives of advertisers, regardless of the merits of her claims of inadequate support. Past evaluations suggest that interpersonal relations was never Petitioner's strength. Despite an obvious talent at advertising sales and considerable experience, Petitioner's frustrations with the perceived incompetence of her coworkers and customers' employees weakened her interpersonal skills beyond a critical point, so that her other strengths no longer offset this important deficit.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 2nd day of July, 2002. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jan Hall-Szugye 3834 Panther Creek Road Clyde, North Carolina 28721 Ellen M. Leibovitch Adorno & Yoss, P.A. 700 South Federal Highway, Suite 200 Boca Raton, Florida 33432
The Issue Whether Respondent, the University of Florida, discriminated against Petitioner, Tracey Krefting, previously known as Tracey Hardin, on the basis of a handicap as alleged in the Petition for Relief filed by Petitioner.
Findings Of Fact The Parties. The Petitioner, Tracey Krefting, formerly known as Tracey Hardin, is a handicapped individual. She suffers from seizure disorder. Ms. Krefting graduated from the University of Florida in May of 1990. She received a bachelor of science degree with a major in advertising. Ms. Krefting had experience as an advertising sales representative prior to her employment by the Respondent. The Respondent, the University of Florida (hereinafter referred to as the "University"), is a State university located in Gainesville, Florida. Within the College of Journalism and Communications of the University is a radio station, WRUF. WRUF was an auxiliary operation of the University responsible for raising revenue to fund all of its expenses, including the salaries for its sales representatives. No state funding was received directly or indirectly from the University by WRUF. Ms. Krefting's Employment by the University. Ms. Krefting was employed by the University at WRUF on July 28, 1992. Ms. Krefting was employed as "OPS", other personnel services. Ms. Krefting was employed to act as one of six or seven sales representatives of WRUF. As of January 29, 1993, Robert Clark was the General Manager of WRUF. Mr. Clark was Ms. Krefting's supervisor from January 29, 1993 until her termination from employment. Sales Representative Qualifications. The essential function of sales representatives for WRUF was to sell radio time for advertising. This function was an essential function because the revenue necessary to operate WRUF was generated in this manner. Sales representatives were responsible for servicing existing clients and for finding new clients. An essential requirement of the sales representatives of WRUF, including Ms. Krefting, was the ability to travel to the businesses and offices of WRUF's advertising clients and prospective clients. Sales representatives were generally required to spend 80 percent of their working hours out of the office servicing clients and seeking new clients. Continuous contact and an ongoing relationship with clients was required. Contacts with clients were expected to be face to face and not just over the telephone. In addition to being required to make regular contacts with clients, sales representatives were also required to make themselves available to visit their clients with little notice. Obtaining new clients usually required more than one contact with a prospective client by a sales representative. The sales representative was required to sell himself or herself and the station and must gain the trust of the prospective client. Sales representatives were also responsible for performing public service work. This work entailed the providing of public service announcements. The public service work performed by sales representatives did not directly generate revenue for WRUF. Neither the application for employment completed by Ms. Krefting when she was initially employed at WRUF nor the University's OPS personnel requisition form authorizing her employment included any of the necessary skills or qualifications for the sales representative position she was hired to fill. Ms. Krefting was aware at the time she was hired, however, that she would be required to travel to her clients locations and to the locations of prospective clients. There are other means of transportation available which would have allowed Ms. Krefting to reach clients and prospective clients: vehicle driven by a hired driver, public transportation, taxi, and walking. The evidence failed to prove, however, that there were any reasonable means of transportation available to Ms. Krefting other than driving herself which would have allowed her to meet the requirements of a sales representative for WRUF. Ms. Krefting's Handicap. On April 18, 1993, Ms. Krefting fell while rollerskating. Ms. Krefting hit her head on the ground when she fell. On April 19, 1993, Ms. Krefting was admitted to the emergency room of the North Florida Regional Medical Center. The evidence failed to prove that the injury she suffered on April 18, 1993, caused Ms. Krefting to suffer any seizure. On May 6, 1993, Ms. Krefting suffered a seizure while leaving her home to go to work. Ms. Krefting was ultimately diagnosed as having "seizure disorder." At all times relevant to this proceeding, Ms. Krefting suffered from a "handicap." Ms. Krefting's Inability to Drive. On or about May 18, 1993, Ms. Krefting provided a letter from George Feussner, M.D., dated May 18, 1993, to Mr. Clark. In the letter Dr. Feussner indicated that Ms. Krefting was able to return to work but that she could "not operate a motor vehicle " Although Dr. Feussner did not indicate how low Ms. Krefting would be unable to drive, Ms. Krefting informed Mr. Clark that Dr. Feussner had informed her that she would not be able to drive until she was seizure free for one year from the date of her last epileptic seizure, May 6, 1993. As a result of the restriction on Ms. Krefting's ability to drive and based upon Florida law, Rules 15A-5.003 and 15A-5.004, Florida Administrative Code, Ms. Krefting was unable to drive herself to see existing or prospective clients until at least May 6, 1994. Ms. Krefting discussed with Mr. Clark the possibility of hiring a "tenant" of hers to drive her around. Ms. Krefting did not identify the "tenant." Nor did Ms. Krefting inform Mr. Clark that she had completed making arrangements with anyone to drive her. Mr. Clark did not preclude Ms. Krefting from making arrangements to have someone provide transportation for her. Mr. Clark did tell Ms. Krefting that it would have to be determined what implications, if any, a driver would have on WRUF's workers compensation coverage. The resolution of this issue was to be delayed, however, until Ms. Krefting made concrete arrangements for a driver and discussed those arrangements with Mr. Clark. Ms. Krefting failed to finalize any arrangement for a driver. Had Ms. Krefting provided her own driver, at her own expense, Ms. Krefting may have been able to meet the requirement of her position that she be able to provide her own transportation. Ms. Krefting, however, did not take the necessary steps to hire a driver prior to her termination from employment. Ms. Krefting talked to her tenant, Kenneth Vest, about acting as her driver. Mr. Vest worked in the same building that Ms. Krefting did. Mr. Vest worked Sunday through Wednesday from 3:30 p.m. to 1:30 a.m. He was, therefore, generally available for part, but not all, of Ms. Krefting's working hours. Mr. Vest was generally willing to drive Ms. Krefting, if he were compensated. Ms. Krefting did not discuss with Mr. Vest the exact hours that he would be expected to drive her or her schedule. Nor did Ms. Krefting discuss compensation with Mr. Vest. Ms. Krefting failed to prove that Mr. Vest or any other individual was available at any time relevant to this proceeding, or at the final hearing, to provide transportation for her in a manner that would fulfill her responsibilities as a sales representative. Because of the restriction on Ms. Krefting's ability to drive and her failure to make alternative arrangements to have someone like Mr. Vest drive her, Ms. Krefting failed to prove that she met all the qualifications of her position with WRUF. Ms. Krefting did not meet all the qualifications of her position. But for her handicap, however, Ms. Krefting would have met all of the qualifications of a sales representative. The University's Decision to Terminate Ms. Krefting's Employment. On or about May 24, 1993, Mr. Clark informed Ms. Krefting that WRUF could not continue to employ her because of her inability to drive. Ms. Krefting suggested alternative means of meeting her responsibilities with Mr. Clark when she was informed that WRUF would not be able to continue her employment. Mr. Clark considered the suggestions, but did not accept any of them. On June 16, 1993 Mr. Clark agreed to extend Ms. Krefting's termination date to accommodate her efforts to find another postition within the University. Ms. Krefting was ultimately terminated from employment in early July of 1993. Ms. Krefting was terminated because she was prohibited from driving her vehicle and there was no other reasonable means of meeting her responsibilities to service clients and prospective clients. The University's Inability to Accommodate Ms. Krefting's Inability to Drive. During 1993, the financial condition of WRUF was precarious. WRUF was operating at a loss. Three employees had been terminated and a department had been eliminated. Another vacant position had not been filled. WRUF was forced to borrow funds from the University and a foundation account in order to continue operating. At all times relevant to this proceeding, WRUF was unable to create a newly funded position or to allow a sales representative to fail to generate reasonably expected revenues. Ms. Krefting suggested several possible alternatives to accommodate her inability to meet her requirement that she be able to drive. The suggestions were discussed with, and considered by, Mr. Clark. One suggestion Ms. Krefting made to Mr. Clark was to create a new position. The position would entail performing all of the public service work of the sales representatives. Mr. Clark rejected this proposal because it entailed the creation of a new position. The creation of a new position was not a reasonable accommodation. The creation of a new position, especially one that did not generate revenue, would have created a financial hardship on WRUF. The evidence also failed to prove that the public service work could be performed without the need for travel. A second suggestion Ms. Krefting made to Mr. Clark was to restructure her position so that she would be responsible for the preparing of proposals, filing, handling incoming sales calls and telemarketing. In effect, this suggestion also entailed the creation of a new position. This suggestion was rejected by Mr. Clark. Ms. Krefting's second suggestion was not a reasonable accommodation. It would have created an undue financial hardship on WRUF because there was not sufficient work to justify such a position. A third suggestion made by Ms. Krefting to Mr. Clark was that she be teamed with another sales representative who would do all the driving. Mr. Clark rejected this suggestion. Ms. Krefting's third suggestion was not a reasonable accommodation. Teaming two sales representatives would have reduced the effectiveness of two sales representatives who would be available to visit different clients and prospective clients at the same time if they were not teamed. This would have created an undue financial hardship on WRUF. A fourth suggestion made by Ms. Krefting to Mr. Clark was that she use public transportation and taxis. Mr. Clark rejected this suggestion. Although it is questionably whether Ms. Krefting's fourth suggestion constitutes an accommodation, to the extent that it does, it was not a reasonable accommodation. Public transportation does not provide the flexibility required of sales representatives because of the inadequacy of routes and schedules of available transportation. A fifth suggestion made by Ms. Krefting to Mr. Clark was that she provide her own driver. It is questionable whether the use of a driver, as suggested by Ms. Krefting, constitutes an accommodation. To the extent that Ms. Krefting was suggesting that WRUF provide her a driver, her suggestion was not a reasonable accommodation. If WRUF had been required to provide the driver, it would have caused an undue hardship on WRUF. Finally, Ms. Krefting suggested that a student intern from the University's College of Journalism be assigned to work with her and that the intern provide the driving required by her position. Mr. Clark rejected this suggestion. Ms. Krefting had discussed the idea of using an intern with Dr. Joseph Pisani, the Chair of the Advertising Department of the College of Journalism. Although Dr. Pisani was not opposed to the use of an intern-if the intern was properly used-he was opposed to the use of an intern primarily or exclusively as a driver. The suggestion that interns be used was not a reasonable accommodation. Student interns usually are only available to work as an intern for a maximum of 12 hours a week. Additionally, the 12 hours a week that an intern would be available depends upon their class schedule. Therefore, student interns would not be available for a sufficient period of time for Ms. Krefting to fulfill the responsibilities of her position. Although it is not impossible to find a student that would be willing to act as an intern full-time, the evidence failed to prove that it was likely that a student could be found that would be willing to take no classes for up a year or that it would be financially feasible for a student to do so. Mr. Clark did not actually attempt to implement any of Ms. Krefting's proposals. Mr. Clark also did not "consult with any experts" about the proposed accommodations. Mr. Clark's failure to attempt to implement any of the proposals or to consult with experts was not, however, necessary. The issue confronting Mr. Clark was not one involving a decision which required special knowledge or understanding of Ms. Krefting's handicap, or the needs of persons who suffer from seizure disorder. The only issue confronting Mr. Clark was how to accommodate the inability of a sales representative to transport herself to meet the needs of clients and prospective clients. Mr. Clark had all the necessary information to decide how to deal with this issue: Ms. Krefting, regardless of her condition or needs, was prohibited from driving an automobile for at least a year. Mr. Clark was fully aware of the impact of this restriction on WRUF and the resulting inability of a sales representative to carry out their responsibilities. The suggested accommodations made by Ms. Krefting also required no special knowledge or understanding. The suggestions only required an understanding of the needs of WRUF and what was expected of sales representatives. Ms. Krefting's Loss of Income. Subsequent to her termination by WRUF Ms. Krefting remained unemployed until February of 1994. After her termination by WRUF Ms. Krefting received unemployment benefits of approximately $3,500.00 Ms. Krefting earned $800.00 for part-time employment in March of 1994. Ms. Krefting was unable to work from April of 1994 until June of 1994. Ms. Krefting is currently employed. Ms. Krefting's Complaint. Ms. Krefting filed a Charge of Discrimination with the Commission on or about August 18, 1993 alleging that the University had discriminated against her on the basis of her handicap. On or about January 21, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about February 17, 1994, Ms. Krefting filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings. Conclusion. The evidence in this case failed to prove that the University terminated Ms. Krefting's employment because of her disability. Ms. Krefting was terminated by the University because she could not meet all of the requirements of her position. The evidence failed to prove that the University could reasonably accommodate Ms. Krefting's inability to drive without undue hardship to WRUF's activities. Ms. Krefting failed to prove that the University discriminated against her on the basis of her handicap.
The Issue The issue posed for decision herein is whether or not the sign involved herein is erected on the right-of-way of a State maintained road. 1/
Findings Of Fact Based upon the documentary evidence received, the testimony adduced during the hearing, and the entire record compiled herein, the following relevant facts are found. Petitioner, Florida Department of Transportation, utilizes outdoor advertising inspectors to keep surveillance of state maintained roadways: to report infractions of the State right-of-way by outdoor advertising agencies and to assist such advertising agencies in the proper erection of signs. In so doing, these inspectors enforce and are guided by the provisions of Chapter 479, Florida Statutes, and Rule Chapter 14-10, Florida Administrative Code. The subject sign involved herein is situated 16.36 miles north of State Road 26, in Gainesville, Florida. The sign in question is situated approximately 600 to 700 feet from the crossing of Interstate 75 and State Road 26. (Testimony of Thomas Wigham, Outdoor Advertising Inspector for Petitioner.) Petitioner utilized the services of one of its registered surveyors, Lloyd Register, a location engineer, to determine the exact placement of the sign in question. Messr. Register is a registered surveyor and is the holder of surveyor's certificate No. 1522 (Florida). Messr. Register staked the area where the subject sign is erected after completing a survey of the area in question. The survey reveals that the subject sign is located within the State owned right-of-way adjacent to State Road 26. (Petitioner's Exhibits 1 and 2, and Testimony of Lloyd Register.) Respondent offered no evidence herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner enter an order authorizing it to remove the subject sign which is located 16.36 miles north of State Road 26, a State maintained road, in Gainesville, Florida. RECOMMENDED this 25th day of September, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25 day of September, 1981.
The Issue The issue for determination is whether Petitioner should be assessed sales and use tax by Respondent, and if so, how much and what penalty, if any, should be assessed.
Findings Of Fact Aircraft Trading Center, Inc. (Petitioner), is a corporation organized and existing under the laws of the State of Florida, having its principal office at 17885 S.E. Federal Highway, Tequesta, Florida. Petitioner is engaged in the business of purchasing aircraft for resale. During all times material hereto, Petitioner was registered as an aircraft dealer with the United States Department of Transportation, Federal Aviation Administration (FAA) and registered as a retail dealer with the State of Florida, Department of Revenue (Respondent). The selling price of Petitioner's aircraft range from one million to twenty-five million dollars and helicopters from two hundred thousand to three million dollars. Normally, Petitioner purchases an aircraft, without having a confirmed buyer. Petitioner purchases an aircraft based upon in-house research which shows a likelihood that the aircraft can be resold at a profit. Petitioner's aircraft is demonstrated to potential buyers/customers. The customers require a demonstration to determine if the aircraft meets the particular needs of the customer. The demonstration could take one day or as long as two weeks. During the demonstration, the customer pays the expenses associated with flying the aircraft. Petitioner uses two methods to determine the costs of demonstration. In one method, the cost is determined from a reference source utilized in the industry to show the cost of operating a particular type of aircraft. In the other method, the customer pays Petitioner's actual out-of- pocket cost. No matter which method is used, the charges to the customers are listed as income on Petitioner's bookkeeping books and records, per the advice of Petitioner's certified public accounting (CPA) firm. Petitioner remains the owner of the aircraft during the demonstration and until the sale. Also, during demonstration, Petitioner maintains insurance coverage on the aircraft and is the loss payee. In an attempt to make sure "legitimate" customers are engaged in the demonstrations, Petitioner screens potential buyers to make sure that they have the resources to purchase one of Petitioner's aircraft. For sales to buyers/customers residing out-of-state, Petitioner utilizes a specific, but standard procedure. Such customers are provided a copy of the Florida Statute dealing with exempting the sale from Florida's sales tax if the aircraft is removed from the State of Florida within ten (10) days from the date of purchase. Florida sales tax is not collected from the buyer if the buyer executes an affidavit which states that the buyer has read the Florida Statute and that the buyer will remove the plane from Florida within ten (10) days after the sale or the completion of repairs and if the bill of sale shows an out-of-state address for the buyer. When an aircraft is sold, Petitioner's standard procedure is to prepare a purchase agreement and after receiving payment, Petitioner prepares a bill of sale. Petitioner sends the bill of sale to a title company in Oklahoma which handles all of Petitioner's title transfers. The title company records the bill of sale, registers the change of title with the FAA and sends Petitioner a copy of the title. For all sale transactions, Petitioner maintains a file which includes the affidavit, the bill of sale, and a copy of the title. Respondent conducted an audit of Petitioner for the period 2/1/87- 1/31/92 to determine if sales and use tax should be assessed against Petitioner. All records were provided by Petitioner. The audit resulted in an assessment of sales and use tax, penalty, and interest against Petitioner. Respondent assessed tax on the sale of a helicopter and on certain charges made by Petitioner to its customers as a result of demonstrations. Regarding the helicopter, Respondent assessed tax in the amount of $18,000.00 for the helicopter transaction. By invoice dated 7/10/89, Petitioner sold the helicopter to Outerscope, Inc., for $300,000.00. Outerscope was an out-of-state company. Petitioner used its standard procedure for the sale of aircraft and sales to nonresidents. Petitioner did not obtain proof that the helicopter was removed from the State of Florida, and Petitioner has no knowledge as to whether it was removed. As to the charges by Petitioner for demonstrations, Respondent assessed tax in the amount of $72,488.55. Respondent determined the tax by taking an amount equal to 1 percent of the listed value of the aircraft demonstrated and multiplying that number by 6 percent, the use tax rate. Respondent relied upon the records and representations provided by Petitioner's bookkeeper as to determining which aircraft were demonstrated, the value of the aircraft and the months in which the aircraft were demonstrated. Several transactions originally designated as demonstrations have been now determined by Petitioner's bookkeeper not to be demonstrations: The February 4, 1987 transaction with Ray Floyd. The July 10, 1988 transaction involving Trans Aircraft. The May 2 and 12, 1989 items for Stalupi/Bandit. The July 12, 1989 item involving Bond Corp. The July 18, 1989 item involving Seardel. The November 28, 1990 item involving J. P. Foods Service. Petitioner's CPA firm advises it regarding Florida's sales and use tax laws. At no time did the CPA firm advise Petitioner that its (Petitioner's) demonstrations were subject to sales and use tax and that it (Petitioner) was required to obtain proof that an aircraft had been removed from the State of Florida.
Recommendation Based upon the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order assessing sales and use tax for the period 2/1/87 - 1/31/92 against Aircraft Trading Center, Inc., consistent herewith. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of July 1995. ERROL H. POWELL 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 10th day of July 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner Partially accepted in findings of fact 1 and 2. Partially accepted in findings of fact 2 and 3. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Rejected as subordinate. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in findings of fact 5 and 14. Rejected as subordinate. Partially accepted in findings of fact 8 and 9. 12 and 13. Partially accepted in finding of fact 13. 14. Partially accepted in findings of fact 5 and 16. Respondent Partially accepted in findings of fact 11 and 12. Partially accepted in finding of fact 12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 13. Also, see Conclusion of Law 20. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. 7 and 8. Partially accepted in finding of fact 6. 9. Partially accepted in finding of fact 7. 10 and 11. Partially accepted in finding of fact 14. 12. Partially accepted in finding of fact 5. 13-15. Partially accepted in finding of fact 9. NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the more credible evidence, argument, or conclusion of law. COPIES FURNISHED: Robert O. Rogers, Esquire Rogers, Bowers, Dempsey & Paladeno 505 South Flagler Drive, Suite 1330 West Palm Beach, Florida 33401 Lealand L. McCharen Assistant Attorney General Office of the Attorney General The Capitol-Tax Section Tallahassee, Florida 32399-1050 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue is whether, due to the nonresponsiveness or misscoring of Intervenor's proposal, Respondent's intent to award a contract to Intervenor based on its proposal submitted in response to a request for proposals known as Florida Travel Demand Modeling Software and License (RFP) is contrary to the governing statutes, rules or policies, or the RFP specifications, as provided by section 120.57(3)(f), Florida Statutes.
Findings Of Fact RFP and Proposals In November 2017, Respondent published the RFP. The RFP is divided into parts, including Special Conditions, Scope of Services, Price Proposal Form, and Introduction, which, according to Special Condition 36, are to be interpreted in this order in the event of conflicting provisions. The purpose of the RFP is to procure travel demand modeling software, which projects future service demands on a transportation system, so that transportation planners, engineers, and policymakers can design, schedule, prioritize, and budget transportation projects and expenditures. The Price Proposal Form is the first page of the RFP. It contains four columns to be completed by the proposer with dollar figures for year 1, year 2, year 3, and 3-year total. The Price Proposal Form contains five rows for the following prices: "Model Conversions," "Training," "Annual License Renewal," "Base Software Cost," and "OVERALL PRICE." The next part of the RFP is the Introduction. Introduction 1 invites interested persons to submit proposals "to provide travel demand modeling software and licensing in Florida for [Respondent], MPOs [Metropolitan Planning Organizations], local agencies and universities (teaching only)." The boldface language alerts prospective proposers that, although Respondent is conducting the procurement, the MPOs, local agencies, and universities in their academic capacity will be co-licensees with Respondent. Introduction 1 states that Respondent "intends to award this contract to the responsive and responsible Proposer whose proposal is determined to be most advantageous" to Respondent. Introduction 1 states that the estimated term of the contract is three years. Special Condition 1 warns that a proposer will be considered nonresponsive unless it is registered with the myfloridamarketplace system by the scheduled date for the opening of technical proposals. Special Condition 6 incorporates the Scope of Services. Special Condition 7 states that Respondent intends to award the contract to the "responsive and responsible vendor with the highest cumulative total points for the evaluation criteria." Special Condition 20 warns that a proposer may not apply "conditions . . . to any aspect of the RFP," and the placement of such conditions "may result in the proposal being rejected as a conditional proposal (see "RESPONSIVENESS OF PROPOSALS")." Special Condition 21 is "Responsiveness of Proposals." Special Condition 21.1 states that a: responsive proposal is an offer to perform the scope of services called for in this [RFP] in accordance with all requirements of this [RFP] and receiving [70] points or more on the Technical Proposal. Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non-responsive by reasons that include . . . failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, and improper and/or undated signatures. Special Condition 22.1 calls for each proposer to submit, each in its own sealed package, a Technical Proposal and a Price Proposal. Special Condition 22.2 requires that the Technical Proposal be divided into six scored sections and 30 unscored subsections; the six scored sections comprising five technical sections and one price section. The six scored sections are the six main sections of the Scope of Services, which is discussed below. Special Condition 22.4 states that "Technical Proposals should not exceed 30 pages in total." Special Condition 30 requires at least three evaluators with suitable experience and knowledge. Each evaluator will independently score each proposal, and the Procurement Officer will average the scores for each Proposer. During the evaluation process, the Procurement Officer is to examine the proposals for responsiveness and "automatically reject . . ." those that the officer finds are nonresponsive. Special Condition 30.2 explains that the technical evaluation "is the process of reviewing the Proposer's response to evaluate the experience, qualifications, and capabilities of the proposers to provide the desired services and assure a quality product." For the five technical sections making up the Technical Proposal, Special Condition 30.2.a assigns a maximum of 90 points, as follows: General Platform Capabilities 25 points Network 20 points Hardware Requirements and Options 10 points Development and Advanced Options 10 points Other Considerations 25 points These five sections are, respectively, Scope of Services 2, 3, 4, 5, and 7. Special Condition 30.2 states that, in evaluating the Technical Proposals, each evaluator is to use the following scale in assigning a single score for each section: Exceeds Reply fully meets all 4 Expectations specifications and offers innovative solutions to meet specifications. Reply exceeds minimum specifica- tions and provisions in most aspects for the specific items. Meets Reply adequately meets the 3 Expectations minimum described need, or provisions of the specific needs and is generally capable of meeting [Respondent's] needs for specific items. Partially Reply does not fully 2 Meets address the need, one or Expectations more major considerations are not addressed, or is so limited that it results in a low degree of confidence in the [proposal]. Reply is lacking in some essential aspects for the specific items. Does Not Meet Reply fails to address the 1 Expectations need, or it does not describe any experience related to the component. Reply is inadequate in most basic specifications or provisions for the specific items. Insufficient information provided to be evaluated. For the Price Structure, Special Condition 30.2.b states that the lowest Price Proposal earns 10 points and the other Price Proposals receive points based on a formula in which 10 is multiplied by a fraction whose numerator is the lowest Price Proposal and whose denominator is the price of the subject Price Proposal. Thus, a Price Proposal with the lowest price $100,000 would earn 10 points, and a proposal with a price of $120,000 would earn 8.33 points ($100,000/$120,000 x 10). Scope of Services 1 notes that the Scope of Services is the product of input from the Florida Model Task Force (FMTF), which comprises members of the Florida modeling community. Scope of Services 1 describes the objective of the procurement: [Respondent] has for more than three decades promoted a unified statewide modeling approach for consistency to the application of engineering and planning travel demand modeling activities. As part of this effort [Respondent] makes available a common modeling software platform for use by all public agencies in Florida which includes [Respondent], . . . MPOs, County and City Governments and Regional Planning Councils. Additionally, Florida universities are provided a limited teaching license for teaching and research purposes. [Respondent] seeks to . . . select a travel demand software package and license for the purpose of meeting the stated objective of providing a common modeling platform. This platform is intended to support modeling activities in the state and represent the Florida-specific standardized modeling procedures outlined in the Florida Standard Urban Transportation Model Structure (FSUTMS). * * * This scope of services represents input from the Florida Model Task Force (MTF)[,] . . . whose mission is to advance model development and applications to serve the transportation planning needs of [Respondent], MPOs and local governments. The input from the Florida MTF serves as a guide for developing the model platform scope. No one challenged the specifications of the RFP. Proposals were submitted timely by Intervenor, Petitioner, and Citilabs, Inc., which is the present vendor of Respondent's travel demand modeling software. The Procurement Officer examined each proposal to ensure that it contained a Technical Proposal and a Price Proposal and determined that each Proposer was properly registered to do business in Florida. Without undertaking further analysis of responsiveness, the Procurement Officer distributed the proposals to the evaluators for scoring, assuming that any failure to meet RFP mandatories would result in a lower score. For the Price Proposals, Citilabs submitted the lowest price, which was $96,000, so it received 10 points. Petitioner submitted a price of $180,000, so it received 5.33 points. Intervenor submitted a price of $260,000, so it received 3.69 points. These scores are not at issue. For the Technical Proposals, Intervenor received 83.33 points, Petitioner received 78.75 points, and Citilabs received 73.33 points. Thus, Intervenor received 87.03 points, Petitioner received 84.08 points, and Citilabs received 83.33 points. On December 20, 2017, Respondent published a notice of intent to award the contract to Intervenor. The intended award was protested by Petitioner, but not Citilabs. Responsiveness Introduction The Procurement Officer's responsiveness review never went beyond a determination that each proposer was registered to do business in Florida and each proposal contained a Technical Proposal and a Price Proposal. None of the evaluators conducted any examination of the proposals for responsiveness or reduced any score of Intervenor for the two instances of nonresponsiveness discussed in this section of the recommended order. In order to apply the deferential standards discussed in the Conclusions of Law, it is necessary to deem that Respondent determined that Intervenor's proposal is responsive on the two issues discussed immediately below. Although the RFP could have more clearly presented its mandatories by setting them out separately, its failure to do so is irrelevant. Dispersed through the RFP are numerous requirements imposed upon a proposal that, if ignored or violated, would render the proposal nonresponsive. The items discussed in this section of the recommended order are mandatories in the RFP. In its proposed recommended order, Petitioner claims that Intervenor's proposal is nonresponsive in model conversions and special access to the software. Conversions of ABMs and Timeframes for Conversions of All 13 Models Except for three provisions, the RFP could easily be misconstrued to call for the submittal of travel demand modeling software on a platform that might or might not accommodate the platforms, and thus the travel demand modeling software, presently used by Respondent, the MPOs, and local agencies. The first of these exceptions is in the Price Proposal Form. The first of only four price categories in the Price Proposal Form is "Model Conversions," a prominent two-word reference that stands without explanation or context, although the plural form alerts the proposer to the need to price more than one conversion. Nearly as laconic, Scope of Services 7.3.2 requires each proposer to "outline a plan for implementation of the software and/or software updates." An understandably puzzled proposer asked, "Is this about conversion plan for [Respondent] or general software update plan as a whole?" Failing to seize upon the opportunity to elaborate on conversion requirements, in Addendum No. 1, Respondent replied only, "The intent was to form a conversion plan." In Scope of Services 6, Respondent abandons its reticence and describes the conversion responsibilities in reasonable detail. As noted above, Scope of Services 6 is Price Structure, which describes each of the four price components included in the Price Proposal Form or Price Proposal. In its proposed recommended order, Respondent argued that responsiveness requirements for the Technical Proposal may not be culled from the portion of the RFP detailing the Price Proposal. Given the failure of the remainder of the RFP to detail conversion requirements, Respondent's argument is burdened by the fact that, if the argument were to prevail, Respondent would be deprived of the only provisions anywhere in the RFP to enforce important conversion responsibilities undertaken by the ultimate vendor. But Respondent's argument finds no support in the RFP itself. Scope of Services 6.1 addresses model conversions as follows: It is the mission of the [FMTF] that every travel forecasting model in Florida operates from the same software platform. These models are validated to standards established by the [FMTF]. The Vendor is expected to convert these models to the selected platform such that the converted models are provided as validated models. A timeframe and conversion methodology is required. While conversions are not expected to precisely meet the outputs of the original model, they are required to meet validation standards consistent with guidelines established through National Cooperative Highway Research Program (NCHRP) Report 716 and other resources identified on the FSUTMSOOnline.net modeling website. Specific requirements will also include recoding ancillary modeling scripts into the selected platform or to a more common, standardized programming language such as Python. Updates to socioeconomic data inputs, local travel demand variables and network coding are not required through this RFP. The vendor must provide a cost estimate for the conversion of seven (7) 4-step models (Florida Statewide Model, Florida Turnpike Model, Northwest, Capital Region, Gainesville, DS, and D1); four (4) ABM [activity-based models) models (Southeast, Tampa Bay, Northeast and Treasure Coast); and two (2) training models. Scope of Services 6.1 not only informs proposers what they need to include in their cost projections for Model Conversions, but, in so doing, also informs them of their obligation to convert Respondent's Citilabs model, ten local models, and two training models. Except for Scope of Services 6.1, the requirements of the RFP, as distinct from the mission statements contained in Scope of Services 1, might be misinterpreted as specifications for the procurement for Respondent of a travel demand modeling software on a platform whose compatibility with the platform presently used by Respondent and platforms presently used by the MPOs and local agencies is irrelevant. Most importantly, Respondent's argument ignores Special Condition 21.1, which identifies the entire RFP as a source of mandatories. Without regard to Special Condition 21.1, Special Condition 22.2 lists Scope of Services 6 within the Technical Proposal, which, Respondent would concede, is an obvious source of mandatories. Scope of Services 6 is merely the fifth of six sections to be scored by the evaluator. Respondent's argument to disregard Scope of Services 6 as a source of mandatories is a misreading of the RFP. Intervenor's proposal, which refers to its traffic demand modeling software as "Visum," responds to Scope of Services 7.3.2 by proposing to convert Respondent's present Citilabs model, but not all of the models currently used by the MPOs and local agencies: We understand that successful model conversion only can be achieved through a collaborative relationship in between [sic] [Respondent] (and affiliated agencies), local consultants, and the software provider. Therefore, we propose a process that all three parties can contribute to this process and ensure all local modeling and software expertise can be fully utilized for this process. The overall conversion process is divided into four tasks below: Kick-off meeting with [Respondent's] Central office: First, we will work with [Respondent's] Central office to come up with a set of basic templates which will be applicable to four-step models as well as ABM models. In this way, we can come up with set standard that can be applied to all models that need to be converted and/or new models that need to be developed in the future. Details on model conversion schedule and prioritization of each model will be discussed and decided based on required model update (for LRTP) schedule and similarities of models. Kick-off meeting with [Respondent's] District office(s): Based on priority list provided from previous step, we will set up individual kick-off meetings with each district. We expect to meet with local model coordinators as well as local consultants with local modeling knowledge (up to two consultants selected by [Respondent]) to learn about the model that needs to be converted. This will give us a background on special features of the existing models, expected run-time, memory requirements and current shortcomings. All data and documentation necessary for model conversion should be provided at the meeting so that it can be reviewed by conversion team. At the end of the meeting, conversion team will come up with initial model conversion plan and shared [sic] with model coordinator and invited consultants. Basic Model Conversion: Basic components in the existing model will be converted to Visum by [Intervenor] at no additional cost. This conversion includes network (traffic and transit) conversion for the base year model, 4-step procedures, trip tables, and any special scripts used in the current model (to model trip adjustments, special assignments, skim averaging, etc.). In case of models integrated with third- party ABM, we will provide network (traffic and transit) conversion for the base year model, assignment and skimming procedures, and scripts necessary for the ABM interface on the Visum side (any modifications required for the ABM side, i.e., code within the ABM is beyond the scope of the basic conversion process). Once the basic model conversion is completed, we will host a hand-over meeting to the model coordinator and selected local consultant (e.g. on-call consultant). At the meeting, we will present the process that was undertaken and detailed information on new attributes, calculations and overall model operation. We will also provide model conversion report so that [Respondent] and consultants can use it to understand converted model. Model fine-tuning and final delivery: [Intervenor] will take the lead along with [Respondent] model coordinator (or selected consultant with local knowledge) on this final model fine-tuning process that includes calibration and validation of the 4-step models along with [Intervenor]. The calibration and validation will be conducted based on guidelines/standards provided on NCHRP Report 716. For the ABM interface, the local consultant is expected to re- write/modify the code with the ABM system in order to successfully interface it with Visum ([Intervenor] will provide full support on the Visum side required in this process.) As a software expert, [Intervenor] will support [Respondent] model coordinator (or selected consultant), local model expert, to complete fine-tuning and localization process and attend meetings (as necessary) to provide continuous feedback. By contrast, Petitioner's proposal responds to Scope of Services 7.3.2 with an unconditional undertaking to convert, not just Respondent's Citilabs model and local nonABMs, but also local ABMs: In this section, we present our approach to and time frame for the model conversions. Quite obviously model conversions are the principal obstacle to a successful transition to new travel demand modeling software. We will not be taking on this task from scratch, as we have already converted a number of current Florida models and, upon selection, would aggressively ramp up the model conversion efforts. No one has more experience in converting models from Citilabs software to another platform than we do, as we have been doing it for more than two decades. Recently we converted the NFTPO [North Florida Transportation Planning Organization] activity-based model to run on TransCAD. In the process, we improved the models in several respects. First, we replaced the stick road network with an accurate HERE network that was already licensed. We then recreated the transit network so that the buses run on the correct streets in the road network. In doing so, we also fixed errors in both networks. We also identified and fixed a variety of errors in the model scripts and significantly reduced the run times for both models. We also converted the statewide model and the Olympus training model as part of the aborted ITN process. [The "aborted ITN process" refers to an earlier, unsuccessful effort by Respondent to procure the subject software by an invitation to negotiate.] At the outset of the conversion process, we will meet with the stakeholders for each model to be converted to understand their priorities and preferences and to develop a mutually acceptable approach to the model conversion. We will welcome the participation of involved consultants as well as agency managers in these discussions. We will use templates for FSUTMS in TransCAD to facilitate the conversion process. These will consist of a standard flowchart interface and the identification of the specific macro functions to be used for trip generation, trip distribution, model choice, and assignment. Highly experienced staff will then perform the conversions and test the results to ensure a successful outcome. Significant discrepancies will be investigated and resolved in a technically proficient manner, consulting with agency representatives if errors are found that need to be corrected. Each and every conversion will ensure that similar results are obtained, may at the option of each model stakeholder have obvious scripting errors corrected, and will improve upon validation measures and run much faster than the current Cube version model. Each conversion will be accompanied by a technical memorandum detailed the conversion effort, changes made, and validation achieved. The conversion effort will be further strengthened and memorialized in the creation of standard scripts for FSUTMS in TransCAD, which will be published and shared with users statewide. We estimate that we will be able to complete all the conversions in a 6- to 12-month time frame. Based on our prior experience, we know that different agencies will have different timetables for this work, and we intend to work with [Respondent] and other model stakeholders to schedule the work effort to reflect these schedules and [Respondent] priorities. We will be mindful of the improvement and standardization opportunities afforded by the conversion effort and will work close with [Respondent] and MPO staff to incorporate some upgrades to the models as part of the process. Upon close analysis, the promise of kick-offs featured in Intervenor's proposal fade to a more prosaic element of the kicking game, as Intervenor fails to convert and punts its responsibilities to Respondent, local agencies, and even unspecified private consultants. In three ways, Intervenor's proposal comes up short as to conversion, so as to deprive Respondent of much of the benefit of the bargain that is the purpose of the procurement. First, Intervenor's proposal does not undertake the conversion of the four travel demand ABM models, which include the heavily populated areas of southeast Florida and Tampa Bay. Instead, Intervenor shifts the responsibility for converting the ABMs, so as to enable them to interface with Visum, to local consultants who are, in the RFP, third-party beneficiaries of the procurement, not the vendor or its subcontractors. Intervenor's unwillingness to convert the ABMs evidences the difficulty of converting this type of model, as borne out by Petitioner's proposal. Petitioner has considerable experience converting Citilabs' travel demand modeling software, so Petitioner's conversion of Respondent's Citilabs model, which Intervenor also has agreed to do, should not be difficult; the open-ended timeframe to which Petitioner committed for converting all of the models--6 to 12 months--likely reflects the difficulty of converting the ABMs, which Intervenor has expressly declined to do. Second, Intervenor fails adequately to describe exactly what it will undertake as to the conversion of ABMs. For these four models, including two with very large service bases, the last sentence of the above-quoted excerpt from Intervenor's proposal offers only Intervenor's support of the "localization" efforts of other parties. Failing to define "localization," Intervenor nonetheless has made it clear that it does not accept the RFP requirement that it convert the four ABMs. To this requirement, Intervenor has attached a condition that relieves Intervenor of the responsibility for the final step or steps necessary for local agencies' travel demand models, which will share the new platform of Respondent's software, actually to work. By so doing, Intervenor has declined unconditionally to assume the daunting tasks of calibration, in which each model is adjusted to force results that match real-world conditions, and validation, in which the model is tested by performing a model run for an historic period, for which the actual data is known, to confirm that the model's output compares favorably to actual results--although, as described in Scope of Services 6.1, quoted above, validation in this RFP also may mean the ability of the model to reproduce the outputs of the model that it is replacing. Third, Intervenor's proposal does not contain the required timeline for the conversion work that Intervenor has undertaken to perform. Intervenor has not imposed upon itself the required timeline for any of the 13 models required to be converted. The materiality of this omission is underscored by Petitioner's warning, "Quite obviously model conversions are the principal obstacle to a successful transition to new travel demand modeling software." Intervenor's nonresponsiveness to the conversion requirements in Scope of Services 6.1 and 7.3.2 confers upon Intervenor a competitive advantage. Conversion, calibration, and validation of the 13 travel demand models are time- consuming, expensive processes, which are at the core of the services for which Respondent is paying in this procurement, so that a proposal that incompletely undertakes these responsibilities confers upon the proposer a significant competitive advantage. Intervenor has also undermined Respondent's ability to enforce the contract in case of incomplete work by shifting to Respondent and private consultants the final stages of the conversion of the ABMs and omitting a timeframe within which to complete any of the 13 conversions. Access as a Co-Licensee for Universities in their Teaching Capacity and Affordable Access for Universities as Consultants and Private Consultants Petitioner argued in its proposed recommended order that Intervenor's proposal is nonresponsive due to inadequacies in its undertaking to provide access to the travel demand modeling software for universities and certain private modeling consultants. As the heading indicates, there are two distinct aspects to this challenge. Scope of Services 7.4 provides: While [Respondent] makes the modeling software available to other public agencies (and Universities acquire no-cost teaching licenses), selection of the software will consider the costs to private industry working in Florida. Private industries and Universities work in collaboration with [Respondent] and Florida's public agencies. It is important to ensure that these industries, particularly smaller firms, have affordable access to the selected software. In Addendum No. 1, Respondent responded to a vendor's question of how and where to present pricing information pertaining to the specifications contained in Scope of Services 7.4. Respondent replied: "Please present a price, a discount, or your approach as to how these entities will have affordable access to the selected software in section 7.4." Intervenor's proposal responds to Scope of Services 7.4 as follows: [Intervenor] has been providing a separate pricing structure for academic users. First, all academic users in Florida will get access to not only Visum licenses as a part of this contract but also, for each semester, they will be eligible for additional classroom licenses for up to 60 students per request. If they would like to acquire separate licenses, they will be eligible for academic pricing where we provide all four off-line software that [Intervenor] provides. For smaller firms in Florida, we will apply maximum multiple license discount (50%) from first license; however, we will require them to submit Florida DBE [Disadvantaged Business Enterprise] certification to ensure their eligibility. In addition, we will offer a lease-to-own option as well as making Visum license to be even more affordable to them. Leased licenses will be fully functional with an expiration date. Upon expiration, user will be able to choose whether they would like to purchase a license and the full amount that they have paid until then (within 1-year) will be applied as a credit toward their purchase. In this way, we can provide affordable access to users with smaller companies. Petitioner's proposal, which refers to its travel demand modeling software as "TransCAD" and its traffic simulator software as TransDNA and TransModeler, responds as follows: Our offer will actually lower the cost to Florida consultants and university researchers. Many, of course, already have our software and will not need to acquire additional licenses. For those that will need licenses, we will provide TransCAD free of charge, but expect that the normal annual support fee of $1,200 be paid up front to receive the software. We will limit this offer to two copies per consulting firm for use in Florida and for work performed for Florida public agencies. Similarly, we will offer one optional TransModeler license to Florida consultants and university researchers for work performed in Florida for free but with the normal annual support fee of $1,500 per year to be paid in advance. Intervenor's proposal is nonresponsive in two respects. First, Scope of Services 7.4 clearly identifies as co-licensees local public agencies and universities in their teaching capacity. This is consistent with Introduction 1, which, as noted above, alerts in boldface that Respondent is acquiring the software and license for itself, the MPOs, local agencies, and universities in their teaching capacity. The university's teaching of traffic demand modeling is not feasible if only the professor were to be entitled to a free copy of the software, which students would be required to purchase at a cost of tens of thousands of dollars per copy. Attaching an impermissible condition to the requirement to treat the university in its teaching capacity as a co-licensee, Intervenor's proposal limits the free student copies to 60 per semester and offers additional student copies at an unspecified academic discount. Thus, Intervenor's proposal is nonresponsive to Scope of Services 7.4 and the Introduction in its treatment of universities in their teaching capacity as a co-licensee. As to Scope of Services 7.4, Petitioner's proposal is also nonresponsive because it imposes substantial "annual support fees" on all "free" university licenses--even though the above-quoted Price Proposal Form clearly includes the price of the "Annual License Renewal" for three years. Additionally, Petitioner's proposal fails to provide any free copies of the software for students. Second, regardless of whether they are private entities or universities, consultants, who are not co-licensees, are assured by Scope of Services 7.4 affordable access to the software. This assurance does not impose much of a burden upon a proposer. As amplified by Respondent's response to the second question in Addendum No. 1, each proposal was required to "present a price, a discount, or your approach as to how these entities will have affordable access to the selected software in section 7.4." Contrary to Petitioner's contention, a discount without a price against which to apply the discount is facially sufficient, so Intervenor's proposal is responsive to this requirement. However, Intervenor's proposal is nonresponsive because Intervenor inexplicably failed to offer its vague promise of preferential pricing to the class of users to whom Scope of Services 7.4 assures affordable access. Rather than extend its discount to all private and university consultants, Intervenor's proposal limits its discount to private consultants that are certified as DBEs, which is likely a small fraction of private consultants and, of course, improperly ignores all universities in their capacity as consultants. Intervenor's nonresponsiveness to these requirements confers upon Intervenor a competitive advantage. The advantage from failing to treat the universities in their teaching capacity as co-licensees means that every dollar exacted from students or universities in their teaching capacity for the term of the RFP is unearned because Respondent has already paid for these licensing rights in this procurement. The advantage from extending a discount to a small fraction of the class of persons entitled to the discount means that Intervenor will improperly realize thousands of dollars on the sale of undiscounted software to consultants that are not DBEs. Scoring A. Introduction The evaluators were T. Hill, T. Corkery, and Tabatabee (respectively, Evaluator 1, Evaluator 2, and Evaluator 3). The evaluators were not trained in the RFP, and they did not communicate with each other while scoring the three proposals. The evaluators worked briskly, completing their evaluations within two weeks. Evaluator 1 has been Respondent's state modeling manager for the past five years and has prior experience with Respondent in transportation modeling in a district office. He has a total of 18 years' experience in transportation modeling. Evaluator 2 has been employed by Respondent for 25 years. He is presently a senior travel demand modeler, in which capacity he has served for ten years. Evaluator 2 previously served as a transportation modeler for Respondent. Prior to his employment with Respondent, Evaluator 2 worked as a travel demand modeling consultant for seven years. Evaluator 3 lacks experience in modeling, but instead is experienced in statistics and the development of Respondent's traffic data system, which supplies the data used for traffic modeling. As noted above, none of the evaluators lowered a score of Intervenor's proposal due to its nonresponsiveness, but neither did they lower a score of Petitioner's proposal due to its nonresponsiveness. In any event, these omissions have not rendered the scoring clearly erroneous. Oddly, Evaluator 3 may have lowered a score of Petitioner for complying with an RFP provision. Evaluator 3 testified that Petitioner improperly included a price within its Technical Proposal, even though, as noted above, Respondent instructed the proposers to do so in Addendum No. 1. However, this act has not rendered Evaluator 3's scoring clearly erroneous. In contrast to the clear, confident testimony of Evaluators 1 and 2, who demonstrated fluency with the RFP and reasonable familiarity with the proposals, the testimony of Evaluator 3 was often vague, sometimes confusing, and, at least once, as noted in the preceding paragraph, confused. Perhaps due to his unique expertise, Evaluator 3 was not as conversant as the other evaluators with the RFP or the proposals. But Evaluator 3's shortcomings do not render his scoring clearly erroneous, although it inspires less confidence than the scoring of Evaluators 1 and 2. In any event, Petitioner would have lost to Intervenor even if Evaluator 3's scores had been discarded. Averaging the scores of Evaluators 1 and 2, Intervenor outscored Petitioner on the Technical Proposal 86.875 to 83.125, so the addition of Intervenor's Price Proposal score of 3.69 and Petitioner's Price Proposal score of 5.33 would have yielded a final score of 90.565 for Intervenor and 88.455 for Petitioner. Moreover, the scoring of the two sections at issue-- Scope of Services 3 and 7--did not reveal that Evaluator 3 was much of an outlier. For Scope of Services 3, Evaluators 1 and 2 assigned a 4 to both proposals, and Evaluator 3 assigned a 3 to both proposals. For Scope of Services 7, Evaluator 3 assigned to each proposal the same score as one of the two other evaluators: for Intervenor's proposal, Evaluators 1 and 3 assigned a 4, and Evaluator 2 assigned a 3, and, for Petitioner's proposal, Evaluator 1 assigned a 4, and Evaluators 2 and 3 assigned a 3. Petitioner's evidence of clearly erroneous scoring takes two forms. First, Petitioner relies mostly on the testimony of its principal, who is extremely knowledgeable about travel demand modeling, but equally interested in the outcome of the case. Second, Petitioner relies on a few internal inconsistencies in scoring that are not so grave as to render the scoring clearly erroneous. Petitioner's task of proving clearly erroneous scoring was undermined by the strong testimony of Evaluators 1 and 2, the open-ended nature of the scoring criteria driving a single score for each section, and, for Scope of Services 7, the large number of unweighted subsections. It is a daunting task for a party challenging a proposed award in a highly technical procurement to set aside scoring as clearly erroneous without the testimony of at least one independent expert witness, who is well informed of the facts of the case. Scoring of Scope of Services 3: Network Scope of Services 3 comprises two subsections: True Shape Network--At a minimum, the vendor's software must efficiently accommodate true shape networks. Integrated Advanced Network Capabilities--Inefficiencies of contemporary modeling networks have made it challenging to share data among models and have led to duplication in data collection. This results in less than optimal model execution times and consequently reduced capacity to develop multiple scenarios efficiently. The vendor's software shall include access to integrated advanced networks and capabilities that promote a unified network platform for all travel demand models in the state and promote more efficient and flexible networks. These subsections generally ask each evaluator to assess how efficiently the proposed software accommodates true shape networks, which capture the actual geometry of roads rather than invariably representing them linearly as sticks, and the accessibility of the proposed software to integrated advanced networks and capability that promote a unified network platform for all travel demand models. The phrasing of these criteria introduces an element of flexibility in the scoring of the proposals under Scope of Services 3, although this section is much less open-ended than Scope of Services 7 and its myriad criteria. Evaluator 1 testified to no significant differences between the proposals of Intervenor and Petitioner in handling true shape networks and integrating advanced networks. Evaluator 2 testified that the proposals of Intervenor and Petitioner offered true shape networks and also did well in importing other map-based information on top of the road information, which evidences the integration of advanced network capabilities. This testimony is credited, and Petitioner has failed to prove that the scoring of Scope of Services 3 was clearly erroneous in favor of Intervenor's proposal. Scoring of Scope of Services 7: Other Considerations Scope of Services 7 comprises nine subsections: Support Needs and Integration with Other Florida Models Model Flexibility Implementation and Collaboration Private Industry and University Consideration Comprehensive Documentation Training Plan Consultant Support Consultant Work Experience Addressing Florida's Future Modeling Needs Three of these nine subsections have a total of seven subsubsections, so a total of 16 separate scoring criteria are found in Scope of Services 7, which, like other scoring sections, is ultimately assigned a single score of 1 through 4. For Scope of Services 7, Intervenor's proposal received an average of 22.92 points, and Petitioner's proposal received an average of 20.83 points. As noted above, Intervenor's proposal is nonresponsive to Scope of Services 7.3 and 7.4, although Petitioner's proposal is nonresponsive to Scope of Services 7.4. Intervenor's proposal also offers one year, not three years, of training, so as to earn a relatively low score on Scope of Services 7.6 and describes less work experience than that described in Petitioner's proposal. However, the open-endedness of Scope of Services 7 requires deference even to Evaluator 3's enthusiastic endorsement of Intervenor's proposal's response to Scope of Services 7.6 for its division of the state, for personnel training, by latitude, not longitude, exactly as Evaluator 3 does. Nothing in the RFP compels a specific weighting of the 16 scoring criteria in Scope of Services 7. Addressing this point in its proposed recommended order, Petitioner argued that for a score "to be true of the overall whole [section,] it must also be true of a fair number of its parts." The deferential standards discussed in the Conclusions of Law undermine this assertion by reducing a "fair number" to a very low number. Although Evaluators 1, 2, and 3 struggled to justify their scores for Intervenor's proposal as to Scope of Services 7, as compared to the explanations offered by Evaluators 1 and 2 as to Scope of Services 3, Petitioner failed to prove that their scores were clearly erroneous in favor of Intervenor's proposal.
Recommendation It is RECOMMENDED that the Department of Transportation enter a final order rejecting Intervenor's proposal as nonresponsive. DONE AND ENTERED this 20th day of April, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 20th day of April, 2018. COPIES FURNISHED: Douglas Dell Dolan, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Frederick John Springer, Esquire Elizabeth W. Neiberger, Esquire Bryant Miller Olive P.A. 101 North Monroe Street, Suite 900 Tallahassee, Florida 32301 (eServed) Bryan Duke, Esquire Messer Caparello, P.A. 2618 Centennial Place Tallahassee, Florida 32308 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Michael J. Dew, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450 (eServed)
Findings Of Fact On or about June 18, 1981, the Department issued permit numbers AE654-10 and AE655-10 to the Respondent, Bill Salter Advertising, Inc., authorizing the erection of a sign on the north side of I-10, 1.2 miles west of U.S. 29 in Escambia County, Florida. Prior to the issuance of the permits in 1981, the site was field inspected and approved by a Department inspector. The Respondent's representative who submitted the permit applications designated on these applications that the sign location was in an unzoned area within 800 feet of a business. This representative also certified on the applications that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. Attached to these applications was a sketch prepared by the Respondent depicting the proposed sign location, and designating the business that was within 800 feet of this location to be a junkyard. This junkyard as it was characterized on the sketch accompanying the Respondent's applications was a business activity that was in operation in 1981. It was within 660 feet of the right-of-way of I-10, and the sign site proposed by the Respondent was within 800 feet of the business activities. The Department's outdoor advertising inspector who approved the applications found the site where the business was located, as well as the activities being conducted there, to have been visible from the main-traveled way of I-10 in 1981. The Respondent and one of its representatives, who viewed the site in 1981, also found that the business activities were visible from I-10 in 1981. Two Department witnesses who viewed this location in 1985 testified that they could not see either the business or the business activities from the main-traveled way of I- However, neither of these Department representatives testified that they viewed the site in 1981, and their testimony has thus been rejected as less persuasive than the testimony of those who viewed the site in 1981. The more substantial competent evidence in this record supports a finding of fact that the business activities were visible from the main-traveled way of I-10 in 1981 when the applications were submitted and approved, and it is so found. Although the sketch accompanying the Respondent's applications designated the business that was in proximity to the proposed sign location as a junkyard, the evidence is inconclusive relative to what the nature of the business activities actually were at this site. The Department contends that the sign was permitted solely on the basis of the junkyard depicted on the Respondent's sketch, but the inspector who approved the permits testified that there may have been something else within 800 feet of the sign site other than the junkyard. He was tentative and indefinite when asked if his approval of the permits was based on anything other than what the sketch depicted. There was "a bunch of automobiles" on the business grounds in 1981 according to the Department inspector who visited the site in 1981. The Respondent's representative who submitted the applications and who prepared the sketch saw some tools, old cars and parts on the site. He called it a junkyard, but it could have been an auto parts business. Another Respondent witness characterized the business being conducted there as an auto repair business, and he has seen autos being repaired there. He has also seen a customer making payment for a repaired vehicle. He has seen the occupational license of the business operator, and it shows a retail business being conducted. Thus, there is insufficient evidence to support a finding of fact that a junkyard was being operated in the area where the Respondent's sign was permitted. In addition, Section 339.241(3), Florida Statutes, requires that junkyards located within 1,000 feet of interstate highways be screened from view from the highway. The business being conducted at the site where the subject sign was permitted is not so screened now, and was not screened in 1981. In summary, the weight of the evidence detailed above supports a finding that the business activity which the Respondent indicated on its applications qualified the proposed sign site as an unzoned commercial area, was within 660 feet of the Interstate and within 800 feet of the proposed sign site, and that the business activities were visible from the main-traveled way of I-10 in 1981. The weight of the evidence further supports a finding that in 1981 the business being conducted at this site was not a junkyard. Prior to February of 1985, the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because he could see no visible commercial activity within 800 feet of the sign. He testified that a junkyard would not qualify a site as an unzoned commercial area because of the requirement in Section 339.241(3), Florida Statutes, that a junkyard be screened from view from the interstate. However, there is no evidence that this witness viewed the area in 1981. Thus, his testimony has less persuasive force than that of the Department inspector who viewed the site in 1981, and who could see the commercial activity from I-10. The Right-of-Way Administrator also testified that the requirement that a junkyard be screened from the interstate is part of the Highway Beautification Act of 1965. However, this requirement is not a part of the Florida Outdoor Advertising Act, Chapter 479, Florida Statutes. Although the Respondent certified on the applications that the sign to be erected would meet all the requirements of Chapter 479, Florida Statutes, the Respondent did not certify that the proposed sign would meet the requirements of the Highway Beautification Act of 1965, or that it would meet the requirements of any of the other statutes of Florida. This is not required. In February of 1985, the Department issued a Notice of Violation advising the Respondent that the subject permits were being revoked because the sign had not been erected in a zoned or unzoned commercial area due to the lack of any business activity that was visible from the roadway.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's violation notice seeking revocation of the Respondent's permits and removal of the Respondent's sign on the north side of I-10, 1.2 miles west of U.S. 29 in Escambia County, Florida, be dismissed, and that permit numbers AE654-10 and AE655-10 remain in effect. THIS RECOMMENDED ORDER entered this 21st day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. Bill Salter, President Bill Salter Advertising, Inc. Post Office Box 422 Milton, Florida 32570 Mark J. Proctor, Esquire Post Office Box 12308 Pensacola, Florida 32581 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32031
