The Issue The issue is whether Respondent's failure to hire Petitioner constituted discrimination on the basis of religion, as provided by section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner graduated from the University of Rhode Island with a bachelor's degree in marketing management. He has had an unbroken employment history from 1980 to present. Respondent was employed as a sales representative of casual and sports shoes in south Florida from 1980 to early 1997. After owning and operating a sandwich shop with 60 seats in Boca Raton for six years, Petitioner resumed work as a sales representative of sports shoes for two years. From 2006 through 2009, Petitioner was employed as a marketer and sales representative for various retail lines unrelated to food. For four and one-half years, ending in late 2013, Petitioner was employed as a merchandiser of various Nestle ice- cream products to Publix, Winn-Dixie, Target, and Walmart outlets in West Palm Beach; one of these products was Haagen-Dazs ice cream, which is a natural food. In 2014, Petitioner owned and operated a salad restaurant with 20 seats in Delray Beach. From 2015 to present, for 20 hours weekly, Petitioner has served as a concierge at a private tennis club in Boca Raton. Also, for 2017 and the first half of 2018, for 20 hours weekly, Petitioner also was employed as a merchandiser of Nabisco cookies and crackers to Publix, Walmart, and Target outlets from West Palm Beach to Fort Lauderdale; none of these products is a natural food. Respondent is a distributor of natural foods to retail outlets. At all material times, Respondent employed at least 15 persons for each working day in at least 20 calendar weeks. In 2017, Petitioner submitted a job application to Respondent for a full-time job as a merchandiser with Respondent. A representative of Respondent contacted Petitioner and set up an appointment for a job interview on July 12, 2017, at a Hampton Inn in Coconut Creek. Keith Olsen, Respondent's manager of retail merchandising, conducted the interview. The interview started unremarkably, as Mr. Olsen described the job, which entailed considerable air travel. Petitioner mentioned that he lived between two major airports. Mr. Olsen then asked Petitioner if he lived in a Jewish community. Petitioner replied that he lived by the beach. Examining Petitioner's resume, Mr. Olsen then asked if Petitioner was Jewish. Petitioner confirmed that he is Jewish. Mr. Olsen said that Respondent, which distributes four or five Kosher food items, sold Kosher food in Boca Raton and Delray Beach, and Mr. Olsen was interested in whether Petitioner might be able to reinvigorate Respondent's lagging Kosher sales. Petitioner then recited his experience in the food industry, and Mr. Olsen said that Petitioner had "plenty" of relevant experience. After Mr. Olsen summarized the benefits, Petitioner noted that he might save them some money on health insurance because he had his own. Mr. Olsen asked if his insurance was the "Obamacare crap," and Petitioner did not reply. Sensing that his inquiry about Petitioner's religion had irritated Petitioner, Mr. Olsen tried to regain his footing by recalling that, as a child, he had delivered newspapers to "Jews, Catholics, and Christians," but this comment, itself awkward, did not dispel the unease created by Mr. Olsen's earlier question of whether Petitioner was Jewish. To his credit, Mr. Olsen testified candidly, countering two or three specific items of Petitioner's testimony with no more than tepid "I don't recall" answers. His candor supports his remaining testimony concerning the interview process, as set forth immediately below. Respondent received over 200 applications for this position. Mr. Olsen scheduled 11 interviews for July 12, but only eight applicants showed up for their interviews. Having conducted numerous interviews for Respondent, Mr. Olsen always assesses interviewees as to five attributes: customer service, communication skill, ability to read planograms (i.e., diagrams showing the strategic placement of products on shelves), product knowledge, and awareness of national trends. Among the eight interviewees, Richard Magnum demonstrated his superior qualifications as to these five attributes. Mr. Magnum had over 17 years' experience in customer service and merchandising and was "very direct" with his answers. Petitioner's customer service and communication skills placed him third among the eight interviewees as to these attributes. Mr. Magnum also demonstrated easy familiarity with planograms and ranked first among the interviewees as to knowledge of the family of products purveyed by Respondent; Petitioner and another interviewee were tied for second as to product knowledge. As for national trends, Mr. Magnum "seemed to know what's going on." "National trends" seems to have something to do with marketing and the fact that Respondent has over 90,000 SKUs, which evidently underscores the large number of products handled by Respondent. Following the completion of the interview process, Respondent offered the job to Mr. Magnum, who was still employed by Respondent at the time of the hearing. On these facts, Petitioner has failed to prove that his qualifications were at least equal to those of Mr. Magnum.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of November, 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 28th day of November, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Daniel Askinas 1208 East Atlantic Avenue, Apartment A Delray Beach, Florida 33483 Nancy A. Johnson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact (Because the Respondent's Proposed Findings of Fact were in letter form and unnumbered, a number has been assigned to each paragraph in chronological order beginning with paragraph Salutory remarks and not a finding of fact. Preliminary information and not a finding of fact. Rejected as subordinate. Not included in R.O. because subordinate. Rejected as not supported by competent substantial evidence. Partially adopted in Findings of Fact 6 and 8. Matters not included therein are rejected as argumentative. The last sentence is rejected as speculation. Rejected as a recitation of testimony. Rejected as not supported by competent substantial evidence. Rejected as subordinate and unnecessary. Partially covered in Procedural Background section of R.O. Matters not contained therein are rejected as argument. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS ARTENIA SANDERS, EEOC Case No. 046852145 Petitioner, FCHR Case No. 85-2149 DOAH Case NO. 85-3846 CHURCH'S FRIED CHICKEN, INC., FCHR Order No. 86-029 Respondent. /
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint and the Petition for Relief filed by Mrs. Artenia Sanders. DONE and ORDERED this 10th day of March, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, 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 10th day of March, 1986. COPIES FURNISHED: Artenia Sanders 1619 Lake Avenue, Apt. C-3 Tallahassee, Florida 32304 Mr. Pat Avery Personnel Manager Church's Fried Chicken, Inc. 2036 Carroll Avenue Chamblee, Georgia 30341 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240I~ Tallahassee, Florida 32303 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Tallahassee, Florida 32303 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
The Issue The issues are whether Respondent, China Gate, committed the alleged violations set forth in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this case, Respondent has been licensed as a permanent food service facility, having been issued License No. 3915595. Respondent's business address and mailing address is 12049 Anderson Road, Tampa, Florida 33624. On December 1, 2004, Inspector Decker conducted a routine inspection of Respondent's licensed premises. During the course of the inspection, Inspector Decker observed one adult live German roach on the coffin freezer and approximately 20 live baby German roaches on the food storage shelves. Inspector Decker also observed "well over 300 dead German roaches on floors, under equipment, and on food storage shelves in [the] kitchen area." The presence of the live German roaches was evidence of roach infestation in Respondent's food service facility. Because roaches and other pests are capable of transmitting disease to man by contaminating food and food-contact surfaces, this is a critical violation. A critical violation is a violation that, if not corrected, could cause food-borne illness. The 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, have been incorporated into the rules of the Division at Florida Administrative Code Chapter 61C. Rule 6-501.111 of the Food Code requires that steps be taken by the operators of food service establishments to minimize the presence of "insects, rodents, and other pests." On December 1, 2004, after the routine inspection and based on the results thereof, Inspector Decker hand-delivered an Emergency Order of Suspension of License and Closure (Emergency Order). Pursuant to the Emergency Order, Respondent's food service establishment was closed until a determination was made that the violations were corrected. Respondent was given until the morning of December 2, 2004, to correct the violations. On December 2, 2004, Inspector Decker conducted a follow-up inspection of Respondent's food service establishment and found that the violations described above had been corrected. On or about December 7, 2004, the Division issued an Administrative Complaint seeking to impose administrative fines and other penalties for the violations revealed during the December 1, 2004, routine inspection. In December 2003, Respondent's food service establishment was cited for the same violation, roach infestation, found in this case. As a result of the violation in December 2003, Respondent's food service establishment was also closed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order that finds that Respondent, China Gate, violated Rule 6-501.111 of the Food Code, imposes an administrative fine of $1,000, and requires Respondent to attend an educational course sponsored by the Hospitality Education Program. DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 31st day of October, 2005. COPIES FURNISHED: Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Zoey Sal Empress Inc.-China Gate 12049 Anderson Road Tampa, Florida 33624 Geoff Luebkemann, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in this case concerns whether the Respondent violated Section 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate administrative fine to be imposed.
Findings Of Fact Respondent is engaged in the business of selling meat products at its location at 1221 Northwest 40th Avenue, Lauderhill, Florida 33313, and holds Food Permit No. 55403, pursuant to Section 500.12, Florida Statutes. On February 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 63 pounds of uninspected meat product, including cow feet, cow tails, cow head meat, goat stomachs, and beef blood. Goat stomachs may not be sold as human food under any circumstances in the State of Florida. The stomachs at issue were also adulterated with ingesta, or the contents of the stomach at the time the animal was slaughtered. Respondent purchased the meat at issue from a farmer in Avon, Florida, and had sold approximately 415 pounds of the same product to its customers prior to the Compliance Officer's inspection. 1/ At the time of Respondent's selling and offering for sale of the adulterated and uninspected meat products, Respondent's owner was aware of the illegality of his actions. By means of the Department's letter dated June 2, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of 253 pounds of uninspected goat meat. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and tuberculosis. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of a violation of Section 585.80(2), Florida Statutes, by selling uninspected animal products and adulterated animal products: Concluding that the Respondent is guilty of a violation of Section 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products; and Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines. DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 27th day of May 1994.
The Issue The issue in this case is whether Respondent, Steak N Shake, discriminated against Petitioner, Western Ulysse, on the basis of his national origin (Haitian), or race (black), in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a black man, born in Haiti. He was hired by Steak N Shake on April 26, 1998, as a production worker and cook. He was later promoted to a manager position at Store No. 281 in Lake Buena Vista. He worked at that store for about eight years and then transferred to Store No. 280 on West Colonial Drive in Orlando (the "Store") on an unspecified date. The general manager at the Store was Judith Freeman, a white female. There was one other manager at the store, Ilia Velez, a Hispanic woman.1/ Petitioner's duties as manager at the Store included providing good service to customers, maintaining an appropriate number of employees each day, ordering food and other supplies for the Store, and ensuring cleanliness and orderliness at the Store. It was also the duty of managers to make bank deposits of daily receipts. Petitioner did not have an exact time for starting work each day, but said he normally started at about noon for the "day shift." Each and every day, managers at the Store would complete a Daily Cash to Account for Form (the "TAF Form"), reflecting the amount of money collected on each of the three daily shifts. The first shift was late night/early morning; the second shift was the day shift; and the third shift was evening. As day-shift manager, Petitioner would sign the TAF Form for receipts from the night shift. It was then incumbent upon him to deposit the collected monies at the bank. A TAF Form was to be signed by two individuals, one of whom (generally a manager) would indicate by his/her signature that they would be responsible for depositing the receipts. According to Steak N Shake policy, deposits had to be made at the bank by a manager "and one other Steak N Shake employee. NO ONE GOES TO THE BANK ALONE." That policy was in place at the Store when Petitioner served as manager. However, it was common practice at the Store for Petitioner or another manager to go to the bank alone. Petitioner knew the policy and knew that his employment could be terminated for violating the policy. He explained that sometimes on first shift there were only two people at the store in the morning, so he had to go to the bank alone. Steak N Shake policies allow for a police officer to substitute as one of the two required persons. Further, an employee who cannot comply with the policy is supposed to contact the district manager as soon as possible. Nonetheless, the policy was routinely ignored by managers at the Store during the 2011 time-frame. It was also policy for the bank deposit to be made before 11:00 a.m. for the previous night's receipts. Petitioner did not explain how he complied with that requirement when he normally arrived at work at noon. He apparently worked earlier shifts some days and day shifts other days, but there is insufficient evidence in the record to substantiate that presumption. On May 24, 2011, however, Petitioner testified that he arrived at work around 7:00 a.m. At approximately 10:41 a.m., Petitioner signed the TAF Form from the previous day, indicating a deposit amount of $770.47 (the "Deposit"). Petitioner signed the TAF Form on the line of the form designated "Witnessed By" when, in fact, he, as manager, should have signed on the line designated "Deposited By." On this particular form, it appears the manager and the other employee signed on the wrong lines. Regardless of that scrivener's error, Petitioner became responsible for taking the Deposit to the bank once he signed the TAF Form. Petitioner said there were only two people working that morning, but the work schedule for the Store indicates at least five other persons were on the schedule for that morning. None of the workers was called to testify at final hearing, but the general manager, Ms. Freeman, said she believed they were all working that day. Ms. Freeman was also scheduled to work that day, but was taking part in management training outside the store. Petitioner did not notify the district manager that he could not comply with the banking policy. The Deposit was never received by the bank. Petitioner said at final hearing that he did not go to the bank with the Deposit, even though he had signed for it. He believes he sent another manager with the Deposit because it was very busy that morning, and there were not enough employees available to handle the work. His testimony in that regard is not persuasive, because the bank deposit slip for May 24, 2011, was signed by Petitioner. On June 9, 2011, the general manager, Ms. Briel, was told that the Deposit had never been made at the bank. She contacted the Store's general manager, Ms. Freeman, and asked her to investigate. Ms. Freeman did so, but could not locate the missing money. The bank also tried, but failed to locate the missing money. Ms. Freeman then contacted Petitioner to let him know the Deposit he had signed for was missing. Petitioner was given the opportunity to replace the missing money from his own funds to prevent termination of his employment, but said he did not have sufficient money in his account to do so. After completing her investigation, Ms. Freeman met Ms. Briel at a site away from the Store and disclosed her findings. Per protocol, the police were called to investigate the missing funds. No arrest was ever made, however. Ms. Briel considered Ms. Freeman's findings, consulted with the division president, the human resources department, and legal counsel and decided to terminate Petitioner's employment with Steak N Shake. Ms. Briel also issued counseling statements to Ms. Freeman and Ms. Velez relating to their failure to strictly adhere to the banking policies. Ultimately, Ms. Freeman was demoted to restaurant manager and transferred to another store due, in large part, to the violation of company policies relating to bank deposits. Petitioner had been counseled several times for shortcomings, but none of the violations were related to banking policies. Nonetheless, Petitioner was made aware that further disciplinary action against him for any issue may result in the termination of his employment. Petitioner feels he was treated differently than Ms. Velez, who he maintains also lost a deposit. However, Ms. Velez's deposit was ultimately accounted for by the bank, which had made a mistake. Petitioner's deposit was never accounted for by the bank or by anyone else. Ms. Velez's employment with Steak N Shake was ultimately terminated for "performance issues." Other managers have lost deposits and/or stolen money from Steak N Shake. In every instance, the offending manager's employment was terminated. There is zero tolerance at Steak N Shake for misappropriation of money. Petitioner cannot recite any incident of discrimination against him by Steak N Shake on the basis of his race or national origin. Petitioner did not ever avail himself of the procedures for issuing a complaint based on discrimination while he was employed at Steak N Shake.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Western Ulysse's Petition for Relief. DONE AND ENTERED this 28th day of August, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 28th day of August, 2012.
The Issue The issue presented is whether the bid of Intervenor Velda Farms, Inc., is responsive to and complies with Respondent's Invitation to Bid No. SB 97C-85R.
Findings Of Fact On August 15, 1996, Respondent The School District of Palm Beach County, Florida (hereinafter "School District") issued an Invitation to Bid entitled "Term Contract for Uncooked Pizza Products," soliciting vendors for the 1996-97 school year. Both Petitioner Jukebox Express Drive-In Restaurants of America, Inc. (hereinafter "Jukebox Express"), and Intervenor Velda Farms, Inc. (hereinafter "Velda Farms"), timely submitted bids. The School District opened the bids on September 11, 1996, and determined that Jukebox Express and Velda Farms, as well as five other vendors, had submitted responsive bids. The School District prepared a list of approved vendors for that contract and included Jukebox Express and Velda Farms and the other responsive vendors on that list. The cafeteria manager for each school in the School District can select any vendor from that approved list to supply pizza products to that school. Jukebox Express timely filed its protest to the School District's determination that Velda Farms should be included on the list of approved vendors for pizza products, alleging that the bid of Velda Farms was not responsive and that Velda Farms is not a responsible bidder as to the subject bid. The School District is purchasing pizza products "off-bid" from Velda Farms during the pendency of this proceeding. Velda Farms does not manufacture or prepare the pizza products it currently supplies and would supply pursuant to the School District's Invitation to Bid. It is the distributor. The pizza is manufactured by Mimmo's Gourmet Pizza, a business currently located in Pompano Beach, Florida. During the 1995-96 school year Mimmo's supplied pizza to the School District through Jukebox Express. That pizza was manufactured by Mimmo's in its Fort Lauderdale location. Jukebox Express stopped supplying Mimmo's pizza to the School District in March 1996 due to deficiencies in the quality of the product. On May 7, 1996, Mimmo's Fort Lauderdale facility was inspected by the Florida Department of Agriculture and Consumer Services. Mimmo's received an overall rating of poor, with several critical sanitation items cited for correction within 48 hours. When the Department returned to that Fort Lauderdale facility on May 28, it discovered that Mimmo's was no longer doing business out of that facility. Instead, Mimmo's had begun doing business out of its Pompano Beach facility. It is from that facility that Mimmo's began supplying pizza products to the School District through Velda Farms in June 1996 and continuing through the time of the final hearing in this cause. No evidence was offered as to when Mimmo's obtained a permit to commence construction of its Pompano Beach facility. The records of the City of Pompano Beach reveal that on April 10, 1996, Mimmo's received approval for temporary electrical service for 30 days to test equipment. That approval did not permit operating a business at the site. That approval for temporary electrical service was never extended or renewed. Mimmo's August 6, 1996, request for a temporary certificate of occupancy for its Pompano Beach facility was denied. On September 12, 1996, Mimmo's Pompano Beach facility was "red-tagged" for failure to have a certificate of occupancy. On the following day Mimmo's applied for and received a temporary certificate of occupancy. Mimmo's did not obtain a final certificate of occupancy from the City until November 7, 1996. On September 19, 1996, the City of Pompano Beach received Mimmo's application for an occupational license which represents that Mimmo's opened for business in September 1996. The City issued an occupational license to Mimmo's that same day. Special Condition H.3. of the subject Invitation to Bid provides as follows: Vendors must have a system in place that provides for quality control and the delivery of product at consistent and specified quality levels. Vendors must have in place a system for safety and sanitation inspections assuring the delivery of product that is free from contamination and product degradation. At the time it submitted its bid and through the time of the final hearing in this cause, Velda Farms had no system in place for quality control of Mimmo's product and had no system in place for safety and sanitation inspections of Mimmo's product. Velda Farms performed no investigation of Mimmo's product or manufacturing facility before it commenced supplying Mimmo's product to the School District. Velda Farms relied solely on the fact that Mimmo's pizza was listed as an approved product in the School District's Invitation to Bid. The School District's employee who prepared the Invitation to Bid included Mimmo's pizza in the approved product list pursuant to oral information given by the director of food services that Mimmo's was tested and accepted as an approved product by the School District in May 1996 for the 1996-97 school year. That same employee is not aware of any written test report to that effect. When Velda Farms submitted its bid to the School District, it attached a letter on Velda Farms stationery which read as follows: As per our conversation, Velda Farms [sic] ability to fulfill the obligations of the Pizza Bid No. SB 97C-85R is contingent upon the following: Mimmo's Pizza's ability to supply the required amounts at the agreed pricing. Mimmo's Pizza's ability to meet the nutritional specifications and requirement of the Palm Beach County School District. I appreciate your understanding in this matter. Should you have any questions, please contact me. The statements in that letter are directly contrary to the requirements contained in Special Condition H.3. of the Invitation to Bid. Indeed, the statements in that letter render the bid submitted by Velda Farms only a conditional offer to supply pizza products. Special Condition B of the Invitation to Bid provides that the contract will be awarded to the lowest and best responsive, responsible multiple bidders. Section 6.14 of the School District's Procurement Department Purchasing Procedures were adopted as School Board policy on November 21, 1995. Section 6.14(5) provides, in part, as follows: Responsible bidder or offeror is defined as a person/firm who has the capability, in all respects, to perform the contract requirements fully and the moral and business integrity and reliability to assure good faith performance. Responsive bidder or offeror is defined as a person/firm who has submitted a bid that conforms in all material respects to the invitation for bids or request for proposals. As to the subject bid, Velda Farms is neither a responsible bidder nor a responsive bidder. Its letter attachment to its bid form represents that Velda Farms does not have the capability to fully perform the contract and that Velda Farms will not assure good faith performance. Further, its bid does not conform in all material respects to the subject Invitation to Bid. Although the School District's Procurement Department Manager suggests that the deficiencies in Velda Farms' bid can be waived by the School Board, those deficiencies are not minor. They are material deficiencies in that they involve the quality of the food in the School District's schools and the price of Velda Farms' bid. No other bidder included a condition giving itself the right to cease performance of its agreement to supply pizza products to the School District. No other bidder was advised by the School District's Procurement Department employees that the bidders could condition their bids in such a fashion. At the time Velda Farms submitted its bid and at the time the bids were opened and the School District announced the award, Mimmo's was operating illegally from a building which had not been approved for occupancy and without benefit of an occupational license. Although Velda Farms may not have known that the pizza product it was supplying to the School District at the time of the bid submittals and bid opening was manufactured without the necessary government approvals, General Condition 19 provides as follows: Legal Requirements: Federal, State, county, and local laws, ordinances, rules, and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the bidder will in no way be a cause for relief from responsibility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Intervenor Velda Farms, Inc., is not a responsible or responsive bidder for Respondent The School District of Palm Beach County, Florida's term contract for uncooked pizza products, Bid No. SB 97C-85R, and deleting Intervenor Velda Farms, Inc., from the list of approved multiple bidders under that bid award. DONE AND ENTERED this 31st day of January, 1997, in Tallahassee, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1997. COPIES FURNISHED: Michael B. Small, Esquire Small and Small, P.A. 324 Royal Palm Way, Suite 231 Palm Beach, Florida 33480 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Jim E. Solomon, Esquire Jim E. Solomon and Associates, P.A. 1180 South Powerline Road Suite Nos. 207-209 Pompano Beach, Florida 33069 Dr. Joan Kowal Superintendent of Palm Beach County Schools 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
