The Issue Whether Petitioner's application for a pari-mutuel occupational license as a harness driver should be granted or denied.
Findings Of Fact Respondent is the state agency which is charged with the administration and regulation of the pari-mutuel wagering industry in the State of Florida. On October 29, 1992, Petitioner applied to Respondent for a pari-mutuel occupational license as a harness driver. On January 22, 1993, Respondent denied Petitioner's application. /1 Respondent relies on the provisions of Section 550.10(5), Florida Statutes, which provides, in pertinent part, as follows: (5) The division may deny, revoke, or suspend any occupational license when the applicant therefor or holder thereof shall accumulate unpaid obligations or default in obligations, or issue drafts or checks that are dishonored or for which payment is refused without reasonable cause, when such unpaid obligations, defaults, or dishonored or refused drafts or checks directly relate to the sport of jai-alai or racing being conducted at a pari-mutuel facility within this state. Millpond Equine Clinic, a veterinary clinic, has two outstanding accounts that were opened by Petitioner. One of those two accounts was opened in Petitioner's individual name. For ease of reference, this account will be referred to as the first Millpond account. There has been no payment on that account since October 8, 1991, and there was, at the time of the formal hearing, an outstanding balance in that account in the amount of $104.00. The first Millpond account was for services directly related to the sport of racing being conducted at a pari-mutuel facility within the State of Florida. The second Millpond account opened by Petitioner was opened in the name of Miracle Shoe in care of Petitioner. There was no evidence that Miracle Shoe was a corporation at any time this account was opened. For ease of reference, this account will be referred to as the second Millpond account. This account shows an outstanding balance in the amount of $300.00. There has been no payment on the second account since May 20, 1988. The second Millpond account was for services directly related to the sport of racing being conducted at a pari-mutuel facility within the State of Florida. Miracle Shoe is a plastic horseshoe that Petitioner has attempted to develop for a number of years. Petitioner hopes to market this product to owners and trainers of horses, including race horses, in Florida and elsewhere. Petitioner formed a series of companies ostensibly for the purpose of developing and marketing Miracle Shoe. Three of the corporations formed by Petitioner were Equine Concepts, Inc., Equine Technology, Inc., and Equine Innovations, Inc. At the time of the formal hearing, two of the three corporations, Equine Concepts, Inc. and Equine Innovations, Inc. had no assets and had been dissolved as corporations by the State of Florida. Investors were attracted to these corporations through newspaper advertisements. Investors typically paid $10,000 for a 10 percent share of the corporate stock and were made officers or directors of the corporation. Petitioner thereafter treated corporate funds from the investors as his own and paid his personal expenses from these corporate funds. On at least one occasion, Petitioner formed a new corporation, which he referred to as a "clean" corporation to attract new investors. Petitioner wrote worthless bank checks on his various corporate accounts and accumulated unpaid bills in the name of these corporations. /2 Petitioner and several of the investors in Petitioner's companies attended horse shows in Germany and Kentucky to promote the Miracle Shoe. Part of the marketing strategy was for Petitioner to try to make a favorable impression on the owners and trainers of race horses. One of the reasons Petitioner sought licensure as a harness driver in the State of Florida was to gain access to pari-mutuel grounds to facilitate the marketing of the Miracle Shoe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a harness driver. DONE AND ORDERED this 26th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 26 day of July, 1993.
The Issue The issue in this case is whether respondent's licenses as a registered air-conditioning contractor and registered sheet metal contractor should be disciplined for the reasons given in the amended administrative complaint filed on July 10, 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Charges At all times relevant hereto, respondent, Nicholas Donald Bacca, was licensed as a registered air-conditioning contractor and a registered sheet metal contractor, having been issued license numbers RA 0055337 and RS 0049354 by petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was the qualifying agent for Nick Bacca Solar/Air Systems. He operated his business from his residence located at 4559 Fulton Avenue, Jacksonville, Florida. On the weekend prior to May 6, 1991, nine large air-conditioning units having a value of around $12,000 were stolen from the Atmore, Alabama Lions Community Center. The identification numbers of the units were immediately given by local police to the National Crime Information Center. Acting on information received from one of the apprehended theives, on May 14, 1991, a search warrant was obtained by the Duval County Sheriff's Office to search respondent's property at 4559 Fulton Avenue, Jacksonville, Florida. All nine units previously stolen in Atmore, Alabama were found in respondent's possession. It can be reasonably inferred from the evidence that respondent knew the units were stolen and that they could be used in his contracting practice. It is further found that by engaging in the foregoing conduct, respondent is guilty of misconduct in the practice of contracting. Respondent was charged with nine second-degree felony counts of violating Section 812.019, Florida Statutes, which makes unlawful the act of dealing in stolen property. On August 29, 1991, respondent entered a plea of no contest to one count of violating Section 812.019, Florida Statutes. Adjudication was withheld by the court, respondent was placed on fifteen months community control, and prior to the expiration of his community control, he was required to make restitution in the amount of $8,371.16. He was also required to pay $220.00 in court costs. For the purpose of determining an appropriate penalty, several aggravating circumstances come into play. First, in terms of the severity of the offense, respondent pled guilty to a second degree felony, punishable by state law by imprisonment for up to fifteen years in state prison. Further, the stolen property in respondent's possession could have been sold to unwitting members of the public with adverse consequences upon those persons. Finally, given the nature of the offense, a penalty having a potential deterrent effect on other contractors may be appropriate. On the other hand, there is no evidence that respondent has been disciplined by the Board on any other occasion. In investigating and prosecuting this action, petitioner has incurred costs to date in the amount of $3,745.42. This amount was established by affidavit and was not contested. Failure to Appear at Hearing Although respondent's counsel received a copy of the notice of hearing issued on August 22, 1995, which scheduled a hearing on September 26, 1995, and a second notice issued on September 18, 1995, giving the specific location of the hearing, he did not appear at final hearing. He has never filed a motion for continuance with the undersigned, or otherwise contacted this office to advise that he would be unable to attend the hearing. At the close of the business day prior to the hearing, respondent's counsel's office telefaxed to opposing counsel a motion for protective order and motion to strike notice of hearing. The document was not served on the undersigned. In the motions, counsel moved to strike the notice on the grounds he had not been given reasonable notice of hearing and the hearing date of September 26 had not been cleared with his office. He further cited R. Crim. P. 3.132(c) and advised he was "detained" in Alachua County until October 17, 1995, and could not attend the hearing. The motions were opposed by petitioner. After petitioner furnished the undersigned with a copy of the motions at final hearing, which were treated as a motion for continuance, the motions were denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order finding respondent guilty as charged in Counts I and III of the amended administrative complaint, revoking his license, and requiring him to pay $3,745.42 in costs incurred by the Board in investigating and prosecuting this action. Count II should be dismissed. DONE AND ENTERED this 14th day of November, 1995, 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 14th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1364 Petitioner: Petitioner's proposed findings of fact have been adopted in substance in this Recommended Order. COPIES FURNISHED: Elizabeth C. Masters, Esquire 7960 Arlington Expressway Suite 230 Jacksonville, FL 32211 Thomas A. Boyer, Jr., Esquire 390 North Orange Avenue Suite 1890 Orlando, FL 32801-1642 Mr. Nicholas D. Bacca 4559 Fulton Avenue Jacksonville, FL 32207 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway Suite 300 Jacksonville, FL 32211-7467 Lynda L. Goodgame, Esquire Dept. of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact Respondent, Unicare Amelia Island, Inc., d/b/a Amelia Island Care Center, operates a 90-bed intermediate care facility for the mentally retarded at 2700 Atlantic Avenue, Fernandina Beach, Florida. It is licensed by Petitioner, Department of Health and Rehabilitative Services (HRS). On or about November 29, 1982, three HRS representatives conducted an inspection of Respondent's facility. The investigation was prompted by the receipt of a complaint from the parents of a client receiving treatment at Respondent's facility. During the course of the inspection, the dental records of a client at the facility, Kent Fidler, were reviewed. The October 15, 1982 entry reflected that the facility contractual dentist intended to extract Fidler's tooth number 4 to make room for tooth number 5. However, the November 4, 1982 entry reflected that tooth number 5 had actually been extracted to make room for tooth number 6. However, no interview with the dentist was undertaken to confirm if this was merely an error in the records or if the wrong tooth had in fact been pulled. The dentists chart also failed to indicate the route of the anesthesia administered to the patient during the exoration. Whether dental records was not disclosed. The dental records themselves were not introduced into evidence. The facility hired a new registered physical therapist in July, 1982. Her work schedule included only an eight to ten hour shift each Saturday. In October, 1982 she began working eight hours each Monday, Tuesday and Thursday of the week or a total of twenty-four hours per week. During this same period of time the facility employed a number of physical therapy aides who were supervised by an occupational therapist. However, it was not shown that these aides were performing physical therapy services; rather, they were providing services in the motor skill area. Department rules and the Department Manual for Client Services provide that no physical therapy services be provided to a client without a physician's written order to do so. There was no evidence that any physician's order for physical therapy services had been made between July and November, 1982. The facility prepared a habilitation plan for Fidler prior to his admission as a client on August 17, 1982. This document has been received as Petitioner's Exhibit 3. It contained four "training goals" for maximum frequency". A reassessment of the first habilitation plan was prepared by the facility on September 9, 1982 and has been received as Petitioner's Exhibit 3B. The plan was reviewed and approved by a Department representative. The Department also acknowledged that this review was performed on a timely basis pursuant to applicable rules. Although the Department later claimed that three of the four original training goals for Fidler had not been implemented in a timely fashion, this claim was founded on an interpretation of undisclosed "federal regs" which are not a part of this record. There was no evidence that a physician had prescribed physical therapy for Fidler. Accordingly, the reassessment addressed his motion and movement needs in the motor skill portion of the plan.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Unicare Amelia Island, Inc., d/b/a Amelia Island Care Center be DISMISSED. DONE and ENTERED this 11th day of October, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 11th day of October, 1983.
Findings Of Fact On June 1, 1988, Petitioner Higuero, who is from the country of Columbia, visited one of Respondent's truck terminals and expressed an interest in working for the company as a driver of a tractor-trailer combination. He spoke with the Orlando terminal manager, Brad Schneider, who gave Petitioner an application. In the course of their brief conversation, Petitioner told Mr. Schneider that Petitioner had recently completed a course at Mid-Florida Technical Institute in commercial vehicle driving. Mr. Schneider informed him that Respondent's policy was to require that all new drivers have at least one year's verifiable prior experience or certification of completion of a truck- driving course. Petitioner expressed some concern that he might not have passed the Mid-Florida Tech course. He explained that he had ground the transmission gears several times during the driving test. Shortly after this visit, Petitioner received from Mid-Florida Technical Institute a certificate of competency for having satisfactorily completed a program in commercial vehicle driving. The reverse side of the certificate contained Petitioner's grades. The five-point grading scale ranged from "5," which signifies that the student can perform without supervision and exceeds minimum industry standards, to "1," which signifies that the student has not performed the skill. A "3" means that the student "can perform this skill satisfactorily but requires some assistance and/or supervision. Meets minimum industry standard." A "2" means that the student "can perform parts of this skill satisfactorily, but requires considerable assistance and/or supervision. Does not meet minimum industry [sic] for entry into this occupation." Petitioner received an overall score of "3." He received no grades of "4" and received eight grades of "2" out of a total of 33 grades. He received grades of "2" in coupling and uncoupling a set of double trailers, backing into a parking space on the blind side, and knowledge of applicable laws and load characteristics. During the road test at Mid-Florida Technical Institute, Petitioner's unsteadiness resulted in a minor mishap. While attempting to allow the steering wheel to spin so as to straighten the wheels, Petitioner injured his finger when it became caught in the spinning spokes. Having obtained the certificate and filled in the application, Petitioner visited the Orlando terminal on June 8, 1988. Mr. Schneider accepted the materials and informed Petitioner that Respondent would begin without delay processing the paperwork. Petitioner requested a road test, but Mr. Schneider told him that Respondent did not administer road tests until the personnel department had reviewed the application and checked, among other things, references for three years of past employment. As he had done when giving the application to Petitioner, Mr. Schneider underscored the importance that the application be filled-in completely and, after quickly reviewing Petitioner's application, told him that he would need to document the three years that he claimed he had been self-employed. About a week later, Petitioner returned to the Orlando terminal and demanded to know why he had not yet been contacted. In a somewhat agitated state, he insisted upon a road test. When Mr. Schneider asked him if he had brought with him the documentation concerning the period of his self-employment, Petitioner became more agitated, began to speak more loudly, and raised his demands from a road test to a job. Mr. Schneider told Petitioner to leave, but Petitioner refused until Mr. Schneider threatened to call the Sheriff's Office. Respondent's personnel office in Auburndale, Florida ultimately rejected the application, which was sworn to and notarized, because of numerous falsifications contained within it. The misrepresentations include statements that Petitioner had never received workers' compensation benefits when he had on several occasions; Petitioner had never suffered from, or been treated for, a mental ailment when he had, on both counts; and Petitioner had never been known by another name when, quite recently, he had worked at Disney World under an assumed name. Material omissions include the failure to note the Disney World employment and service in the U.S. Navy. On June 21, 1988, Petitioner submitted an application to be a tractor- trailer operator with an affiliate of Respondent. The application contained the same misrepresentations contained in the above-described application dated June Another application to Respondent dated July 7, 1988, contained the same misrepresentations and added a new one. The application stated that the duration of his service in the U.S. Navy had been from 1984 to 1985. In fact, Petitioner served for only one month, at which time he separated from the service due to unsuitable temperament.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Petition for Relief filed by Petitioner be dismissed. ENTERED this 16th day of June, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on the 16th day of June, 1989 COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Jenaro P. Higuero, pro se 1099 Leeway Court Orlando, FL 32810 Samuel L. Bare, III Bare & Parsons 6601 S.W. 80th Street Suite 109 Miami, FL 33143
The Issue The issue to be determined is whether the Division of Administrative Hearings has jurisdiction to determine whether Florida Administrative Code Rule 6B-4.009 is an invalid exercise of delegated legislative authority in violation of section 120.52(8)(d), Florida Statutes (2013).
Findings Of Fact Petitioner, Donna Burney (Petitioner or Ms. Burney), is a teacher in Duval County. She is also the subject of an Administrative Complaint in DOAH Case No. 13-4958PL, by which the Education Practices Commission seeks to discipline her educator certificate pursuant to section 1012.795, Florida Statutes. The Administrative Complaint alleges that Petitioner is incompetent to teach or to perform duties as an employee of the public school system or to teach in or operate a private school. Respondent, the State Board of Education, is the chief implementing and coordinating body of public education in Florida. The Board adopted the rule which is the subject of this proceeding. At all times material to the issues alleged in the Administrative Complaint in DOAH Case No. 13-4958PL, Florida Administrative Code Rule 6B-4.009 was the rule applied in those cases where alleged conduct forming the basis for dismissal from employment or discipline against an instructor’s license occurred prior to the amendment to and transfer of the rule in 2012. Rule 6B-4.009 provided definitions for the basis of charges upon which a district school board could pursue a dismissal action against instructional personnel. “Incompetency” is one of the bases for charges defined by rule 6B-4.009. Incompetency was defined as follows: Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following: Inefficiency: (1) repeated failure to perform duties prescribed by law (section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization. The specific authority for and law implemented by the rule are all provisions from chapters 229 and 231, Florida Statutes. Section 231.09, referenced in the rule, as well as all of chapters 229 and 231, were repealed in 2002. § 1058, ch. 2002-387, Laws of Fla. At the time of rule 6A-4.009’s final amendment in 1983, section 231.09, Florida Statutes (1983), provided: Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board. Prior to its repeal in 2002, section 231.09, Florida Statutes (2001), provided: The primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role. Members of the instructional staff of the public schools shall perform duties prescribed by rules of the district school board. The rules shall include, but are not limited to, rules relating to a teacher’s duty to help students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully, using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the district school board. The rule was not amended between 1983 and 2012 to address the repeal of section 231.09. Nor was it amended to provide new statutory authority or law implemented. Rule 6B-4.009 on its face applied to actions by district school boards seeking to dismiss instructional personnel, as opposed to cases brought by the Education Practices Commission seeking to discipline certified educators. However, administrative law judges have referred to the definition of incompetency in educator certificate discipline cases. While section 1012.795(1)(c) authorizes discipline for incompetence, rules 6B-4.009 and 6A-5.056 appear to be the only rules adopted by the State Board of Education to define the term. Effective July 8, 2012, rule 6B-4.009 was transferred to rule 6A-5.056 and amended. Rule 6A-5.056 presently defines incompetency as follows: “Incompetency” means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. “Inefficiency” means one or more of the following: Failure to perform duties described by law; Failure to communicate appropriately with and relate to students; Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents; Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished; or Excessive absences or tardiness. “Incapacity” means one or more of the following: Lack of emotional stability; Lack of adequate physical ability; Lack of general educational background; or Lack of adequate command of his or her area of specialization. Petitioner has not challenged rule 6A-5.056.
The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 January, 2008. 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 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 26, 2000.
Findings Of Fact Petitioner first interviewed for the position of Assistant Manager Trainee with Respondent on March 17, 1999. Her first interview was with Traci Dickerson, Assistant Manager for Operations. Ms. Dickerson was impressed with Petitioner's presentation and recommended that she be interviewed a second time by Mitchell Day, District Manager. After the interview, Petitioner was offered a position as Assistant Manager Trainee to begin work at Wal-Mart Super Center on Apalachee Parkway in Tallahassee, Florida, on May 10, 1999. The Assistant Manager training program is a seventeen- week program conducted at selected Wal-Mart stores throughout the country. The Wal-Mart store in question in the present case is one of just a few stores in Florida that were utilized for this training program. Ms. Dickerson was the person responsible for administering the program in the store in question during the relevant time frame. Another Assistant Manager Trainee, Sean Mitchell, began the training program on the same date as Petitioner. Mark Whitmore, another Assistant Manager Trainee, began the training program sometime prior to Petitioner. Mr. Whitmore was a long- time employee of Wal-Mart who transferred from management in the home office into the retail sales side of the business. Because of his prior experience with Wal-Mart, his training program was handled differently from the training administered to Petitioner in that it was accelerated. Mr. Mitchell's training was the same type as Petitioner's although each trainee may have been given various assignments on different days and in different sequence. Sometime during the training process, certain members of management with Respondent became concerned about Petitioner's attitude toward the training program, her willingness to take constructive criticism, and her communication/people skills. Sometime around the second week of Petitioner's employment with Respondent, she was observed by Assistant Manager Wendy Rhodes, to be engaged in a conversation with Sean Mitchell during working hours. It appeared to Ms. Rhodes that the two individuals were socializing rather than working. Mr. Rhodes approached the two and instructed them to begin the workday. Later, Ms. Dickerson, in her role as the Program Supervisor, provided constructive criticism to Petitioner that she should concentrate on her work and not socialize during work hours. On or about May 29, 1999, while Petitioner was working in lay-away, she was asked to come to the front of the store to assist Brenda Meyers, a front-end manager, because of an increase of customers at the various cash registers. As an Assistant Manager Trainee, Petitioner was expected to "pitch in" and assist throughout the store where needed. Petitioner responded to Ms. Meyers' request by indicating that she was intending to go on her break and refused to come and assist at that time. Because of Petitioner's refusal, George Wilkins (a co-manager and directly below the store manager in the chain of command of the store) took a turn working at a cash register. Every manager at Wal-Mart is expected to be a team player and assist when the need arises. Mr. Wilkins arranged to meet with Petitioner to discuss the incident and general concerns he had as result of feedback he received from other members of management about her unwillingness to do certain tasks, and to give counseling advice on how to conduct herself as an Assistant Manager. Petitioner immediately became defensive and asserted that because she had a bachelor's degree, she did not have to "take this." Mr. Wilkins attempted to explain to Petitioner that her degree was important, but her attitude toward her work and her willingness to do her fair share were more important. Petitioner was not receptive to Mr. Wilkins' efforts to provide constructive criticism. Sometime in late-July 1999, Petitioner traveled with Mike Odum, an Assistant Manager and Lisa Green, who at the time was Personnel Manager at the store in question, to Georgia to attend a new store opening. On the return trip, Petitioner became upset because she was concerned that the group would not return to Tallahassee in time for her to pick up her child from daycare. She confronted Mr. Odum, very upset about the possibility of returning to Tallahassee after 5:00 p.m. However, he returned to Tallahassee prior to the time that Petitioner needed to be back in Tallahassee. On or about August 20, 1999, Petitioner was assigned to the 2:00 p.m. to 11:00 p.m. shift to assist the Customer Service Manager (CSM) in closing the store. The function of the "closing CSM" is important, and Petitioner was needed to assist in that regard. Because the store manager and other members of management were out of town at a meeting, Mr. Odum was in charge of the store. Instead of coming in at 2:00 p.m., Petitioner arrived at the store at 9:00 a.m. She clocked in on the time clock and proceeded to the break room where she warmed her meal and sat down to eat. After she completed her meal, she proceeded to the front of the store to assist the Customer Service Manager. Not long after Petitioner arrived at the store and assumed her position, she was called to the Manager's office to discuss her work schedule for the day. At that time, Mike Odum and Traci Dickerson (Ms. Dickerson participated by phone) reminded Petitioner that her scheduled shift was from 2:00 p.m. to 11:00 p.m. The importance of this was that if she had worked too many hours without prior approval, she would have been in an unauthorized overtime situation. Additionally, it is important to have a "closing CSM" at the appropriate time. Petitioner left work to return in the afternoon as originally scheduled. Petitioner returned to work in the afternoon. She reported to the front temporarily but became frustrated with one of the assistant managers. Feeling that what she was doing was a waste of time, she proceeded to the training room where she reviewed her training materials. She was paged to the front of the store on numerous occasions but did not respond to the calls. Mike Odum went to the training room and told Petitioner to come to the front of the store to assist. Petitioner refused and stated that she would remain in the back of the store and continue reading her manual. When Petitioner refused, Mr. Odum instructed Petitioner to clock out and to come back when the District Manager would be available for a conference. Petitioner left the store shortly thereafter. Petitioner arranged to meet with Mitchell Day, the District Manager who oversees nine stores and approximately 4,800 employees, on August 25, 1999. Mr. Day understood the meeting to be for the purpose of resolving concerns about the issues involving Petitioner and giving Petitioner an opportunity to express her concerns. Management saw this meeting as an opportunity to "get everything out on the table" so that Petitioner could continue with her training program. Accordingly, Mr. Day scheduled the meeting with Todd Peterson, Store Manager; Mike Odum; George Wilkins and Traci Dickerson. All of these individuals expressed concern about Petitioner's performance, her attitude toward the training program, her willingness to accept constructive criticism, as well as their willingness to assist her in completing the training program. There is no evidence that Mr. Day or any other member of management intended that the meeting be conducted for the purpose of terminating Petitioner. Petitioner entered the room and walked past other members of management and approached Mr. Day in a confrontational manner. She was upset at the presence of the various members of management. Despite being asked to be seated, she refused to sit down and begin the meeting. Every participant in the meeting who testified at hearing gave consistent testimony that she raised her voice to an inappropriate level, was hostile and explosive. All recalled her using profanity, with the exception of Mr. Day who did not specifically recall her use of profanity. Every person in the room was stunned at her demeanor, in particular that it was addressed to an upper level management person. Based upon the unprofessionalism of this outburst, Mr. Day advised her that her employment was terminated. The formal reason given for her termination was insubordination. There is nothing in the evidence presented at final hearing to indicate that any of the actions taken by Respondent or members of Respondent's management were based on Petitioner's gender or on any other form of discrimination.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission for Human Relations enter a final order denying and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2001.
The Issue As set forth by the parties in the Prehearing Stipulation and in their proposed recommended orders, the issue in this case is whether the bid submitted by Pass International, Inc., on the Booker T. Washington Middle School Project No. A-0557 is responsive with respect to compliance with the Minority/Women Business Enterprise Assistance Levels subcontracting requirement contained in the Invitation to Bid.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, on the contents of the Pre-Hearing Stipulation, and on the entire record of this proceeding, the following findings of fact are made: At all times material to this proceeding, the School Board was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Article IX of the Florida Constitution and to Section 230.03, Florida Statutes. Acestarz, Inc., was organized as a Florida for-profit corporation on September 2, 1997. Joseph Akoni, an African American male, owns 100 percent of the stock of Acestarz and acts as its president. In an agreement executed April 19, 1998, Joseph Robert Mijares, a Hispanic, agreed to act as Acestarz' qualifying agent and to apply for Acestarz's certification of authority as a general contractor. At the time, Mr. Mijares was an employee of Pass, and he acted as project manager on a number of Pass construction projects, both large and small. Mr. Mijares notified Pass of his agreement with Acestarz a few days after it was executed. Mr. Mijares held a state general contractor's certification. As qualifying agent, Mr. Mijares submitted the application for certification for Acestarz to the Florida Department of Business and Professional Regulation, Construction Industry Licensing Board, on April 23, 1998. A Temporary Authorization License was issued to Mr. Mijares on August 5, 1998, which authorized Acestarz to practice contracting through Mr. Mijares as its qualifying agent pending the processing and receipt of the permanent certification. By its terms, the temporary license was to expire on October 5, 1998. On or about June 1, 1998, Acestarz submitted a Certification Application to the School Board requesting certification as an African American M/WBE. In a letter dated June 1, 1998, Patricia Freeman, Director of the Division of Business Development and Assistance, notified Mr. Akoni that the application had been received. In the letter, Ms. Freeman stated: In the interim [while the application is pending], you may bid as a prime, or subcontractor, on future Dade County Public Schools contracting opportunities, set aside for, or requiring M/WBE participation. Should you be deemed the apparent low bidder or a subcontractor thereto, your application will be processed before contract award. Prime contractors who utilize subcontractors that are pending, but subsequently are deemed ineligible for certification, will be allowed to make a substitution, within the same racial or gender category as the firm being substituted. The School Board's BTW project is a competitive design- build project involving the conversion of Booker T. Washington Middle School into a high school. In order to submit a bid on the BTW project, prospective bidders were required to submit pre-qualification proposals for evaluation in August 1997. Pass and Danville-Findorff, among others, submitted pre-qualification proposals. After the School Board administrative staff evaluated the proposals, three firms, including Pass and Danville-Findorff, were pre-qualified to bid on the BTW project. On or about June 9, 1998, the School Board issued an Invitation to Bid on the BTW project. The bid specifications instructed the bidders to submit a lump-sum bid for all design and construction services required to complete the BTW project. The bid specifications further provided that the bids were to be submitted on or before July 28, 1998, and that, thereafter, the bids would be opened, read, and tabulated. According to the bid specifications, the "[a]ward of the contract will be made to the lowest responsible bidder for the actual amount bid." The time for submitting bids was extended to August 4, 1998. Included as part of the Invitation to Bid on the BTW project is a Special Provision for Compliance with M/WBE Subcontracting Assistance Levels Participation ("Special Provision"). The purpose of the Special Provision is to "ensure that Minority/Women Business Enterprises are afforded maximum opportunity to participate in School Board work." Section II.A., Special Provision. An M/WBE is defined in Section I.A.12. of the Special Provision as follows: Any legal entity which is organized to engage in commercial transactions and which is at least fifty-one (51) percent owned and controlled by minority persons. Minority person means a person who is a citizen or lawful permanent resident of the United States and who is: An African American, a person having origins in any of the Black racial groups of Africa; An Hispanic, a person of Spanish or Portuguese culture, including, but not limited to persons with origins in Mexico, South America [sic] Central America, or the Caribbean Islands, regardless of race; A Woman. Pursuant to the Special Provision, M/WBE assistance levels for one or more minorities are to be specified for all School Board projects. The assistance level for African American M/WBEs was established at eight percent of the total price bid on the BTW project. Section III.A. of the Special Provision provides in pertinent part: SUBMITTALS As a condition of responsiveness, all bid submittals shall contain the documents and information required below. . . . Sealed bids must contain a completed FORM FM 4828, BREAKDOWN OF PROJECT COST AND SUBCONTRACTORS/ CONSULTANT LIST, stipulating the name, and price for each Subcontractor, including the M/WBE category for those listed to meet the M/WBE subcontracting Assistance Level requirements. Letters of Intent (Attachment C-FM 4829) for listed M/WBEs used to meet the M/WBE subcontracting Assistance Levels must be presented by the apparent low bidder, to the Department of Contract Management, . . . within two (2) days (by no later than 2:00 p.m.) after the date, and time and location specified in the LEGAL ADVERTISEMENT AND THE INSTRUCTIONS COVERING OPENING OF BIDS. Letters of Intent prices must not be less than the amount listed on Form FM 4828, Breakdown of Project Cost and M/WBE Subcontractor/Consultant List. Letters of Intent for M/WBEs not listed on FM-4828, will not be considered in determining Compliance, unless the listed M/WBE becomes Unavailable. M/WBE Certification Applications (FM-3920) must accompany the Letters of Intent for all M/WBEs utilized to meet the Assistance Levels who are not certified nor pending certification as M/WBE's [sic] Dade County Public Schools at the time of bid submission. All bids, will be publicly opened, read, and tabulated in the School Board Auditorium, or other designated area, Dade County School Board Administration Building, by an authorized representative of the School Board. The submittal of the apparent low bidder being considered for award will be presented to the Division of Business Development and Assistance for an M/WBE subcontracting Compliance Review, in accordance with Section IV. of the SPECIAL PROVISION FOR COMPLIANCE WITH M/WBE SUBCONTRACTING ASSISTANCE LEVELS PARTICIPATION. If the apparent low Bidder is found to be nonresponsive or in Noncompliance, the Department of Contract Management shall notify the second low bidder . . . . Failure to submit the completed Form FM 4828 submittals at the bid opening may result in the bid being found nonresponsive. Both Pass and Danville-Findorff submitted sealed bids for the BTW project on August 4, 1998. The bid packages were opened on August 5, 1998. Pass had submitted the lowest lump-sum bid at $13,900,000, and Danville-Findorff had submitted the second lowest bid at $13,979,000. Pass submitted a Form FM 4828 with its bid in which it identified Acestarz and Manny & Lou as the M/WBEs that Pass intended to use to meet the eight-percent African American subcontracting assistance level. The listings on the Form FM 4828 submitted by Pass indicated that Acestarz would perform work in categories 9.01 through 9.06 for a price of $500,000 and that Manny & Lou would perform work in category 15.04 for a price of $700,000. Without Acestarz' $500,000 proposal, Pass's bid would not meet the eight-percent African American M/WBE assistance level. Section III.B.4. of the Special Provision provides as follows: The listing of a M/WBE Subcontractor [on Form FM 4828] by the Bidder shall constitute a representation by the Bidder that the listed Subcontractor is available and qualified, and a commitment by the Bidder that if it is awarded the contract, it will enter into a subcontract with the Subcontractor for the type of work, at a minimum of the price set forth in its submission. "Qualified" is defined in Section I.A.21. of the Special Provision as follows: A subcontractor is potentially Qualified to do specific work if at a minimum it meets all of the following criteria: It has or is able to obtain any and all bonds, insurance and licenses required to do such work and was duly informed by the Bidder that a bond, insurance or license was required and said Subcontractor included the cost associated with same in the bid quotation; It has the necessary experience, financial ability, organization, technical qualifications, skill and facilities to do such work; It is able to reasonably comply with the performance schedule needed for such work; It does not have an unsatisfactory record of integrity, judgment or performance; It is able to meet the applicable equal employment opportunity requirement if stipulated, and It is not otherwise ineligible to perform such work under applicable law and regulations. It is the general contractor's responsibility to determine whether a subcontractor is qualified to do the work or portion thereof. Nothing delineated herein shall be interpreted to waive the requirement that the subcontractor be legally licensed and certified at the time it is scheduled to perform such work. Prior to listing Acestarz on Form FM 4828, Henry Louden, who prepared Pass's bid package on the BTW project, did not ask Mr. Akoni about Acestarz' licensure status, the number of employees on its payroll, its financial capacity, or the type of equipment it had. Prior to submitting Pass's bid package, Mr. Louden mentioned to Mr. Akoni that he needed to look at bonding requirements because, when doing public work, subcontractors sometimes were required to provide bonds. Mr. Louden did not, however, inform Mr. Akoni of any licenses Acestarz might need to do the work proposed or of the insurance that Pass required its subcontractors to carry. The extent of Mr. Louden's knowledge about Acestarz prior to submitting Pass's bid package was described in the following two exchanges: Q. [By Mr. Flaxman] What did you know as it related to his [Joseph Akoni's] construction, his portion of construction, things of that nature prior to your [sic] submitting his name to the School Board? A. [By Mr. Louden] His experience? Q. Everything. Whatever you knew about him. A. About his whole firm, then? Q. Yes. A. Joe Akoni came to our office, inquired about bidding work with us, identified areas that he was familiar with, in construction areas that he is familiar with, and subsequent to that, I guess, he got together with Mr. Mijares in my office, and after that discussion, Mr. Mijares -- * * * THE WITNESS: Okay. Mr. Mijares got involved with Ace Starz [sic]. Ace Starz looked at a couple jobs in our office. Ace Starz submitted some bids to us on other jobs. Ace Starz was interested in submitting prices for the Booker T. Washington job. We provided plans to him. We reviewed the plans together, identifying the scope that we needed them to furnish to us, . . . . Q. . . . . Is there anything else you knew about Ace Starz, Inc. as it related to the construction of the project [prior to submitting Pass's bid package]? A. No.2 And, again, Q. (By Mr. Swimmer) Did you meet or did someone else on behalf of Pass meet with Mr. Akoni prior to Mr. Akoni giving a price on behalf of Ace Starz [sic] to go over the scope of work? A. [By Mr. Louden] Yes. Q. And did you discuss with him scope of work at that time? A. Yes. Q. And did you come away from that meeting with a sense of qualifications and ability of Ace Starz and Mr. Akoni [Objection by Mr. Flaxman.] MR. SWIMMER: Then, let me ask you -- I'll rephrase the question. BY MR. SWIMMER: Q. Did you reach a belief as a result of your interaction with Mr. Akoni regarding his capacity, his ability with regard to construction of the items for which he was pricing? A. Yes. Q. And what was that conclusion? A. His pricing and understanding of what we were requesting, from what I felt was necessary, in order to achieve -- to submit a price to me when we went through the plans, after he submitted the pricing, we reviewed it and it was consistent with what I was looking for, with other sub prices that we received. Q. Did you go through the plans with him, with Mr. -- A. Yes. Q: Did Mr. Akoni mark up the plans to describe the work which would be the scope of his price? A. I'm sure he did. I don't recall what he marked, whether he marked it. I identified specifically which areas he needed to price 3 On August 4, 1998, the date that bid packages on the BTW project were submitted to the School Board, Acestarz was not licensed by the state Construction Industry Licensing Board pursuant to Chapter 489, Florida Statutes, or by Miami-Dade County pursuant to Chapter 10 of the Code of Metropolitan Dade County, Florida. Once Pass was notified by the School Board that it had submitted the low bid, Pass timely submitted Letters of Intent from each of the three subcontractors it intended to use to meet the M/WBE assistance levels for the BTW project, as required by Section III.A.2. of the Special Provision. An application for certification for Acestarz was not submitted with Pass's bid package because Acestarz's certification application had been filed with the Division of Business Development and Assistance on June 1, 1998, and was still pending. Pass was determined to be the lowest responsive bidder and its bid package was forwarded to the Division of Business Development and Assistance for a compliance review to be conducted pursuant to the Special Provision.4 In Section I.A.4. of the Special Provision, "compliance" is defined as "[t]he condition existing when a successful bidder has met and implemented the requirements of this Provision." In Section I.A.6. of the Special Provision, "compliance review" is defined as "[a] review to determine whether the successful Bidder is in Compliance with these Provisions." "Successful Bidder" is defined in Section I.A.24. as "[t]he Bidder to which the contract is awarded." Even though the above-quoted sections of the Special Provision specify that a compliance review is done for the "successful" bidder after the contract for the project is awarded, the M/WBE compliance review is actually done before the contract is awarded in accordance with the procedures set out in Section IV. of the Special Provision. Section IV.A. provides in pertinent part: DETERMINATION OF COMPLIANCE Subsequent to bid opening and prior to award, the M/WBE Compliance Administrator will conduct a review of the bid submittals in order to determine Compliance with the Provision as follows: 1. Fulfillment of Established Assistance Levels If the total price for work to be performed by M/WBE Subcontractors as indicated in either the Breakdown of Project Cost and Subcontractors/Consultant List or Letters of Intent is sufficient to fulfill the established Assistance Levels, in each race/ethnic/gender category, the Compliance Administrator will issue a written Notice of Compliance to the Bidder. Pursuant to these provisions, the compliance review involves consideration of the cost breakdown for each M/WBE subcontractor listed by the lowest responsive bidder on the Form FM 4828; whether each subcontractor listed is a certified M/WBE, has an application for certification pending, or has filed a certification application with its Letter of Intent; and whether the price of the work to be done by each M/WBE subcontractor meets or exceeds the assistance levels specified in the bid documents. Ms. Freeman, in her capacity as Compliance Administrator, was responsible for conducting the compliance review of Pass's bid package. On August 14, 1998, before the compliance review had been completed but after Pass had been identified as the lowest responsive bidder, Danville-Findorff sent a notice of bid protest to Julio Alvarez in the School Board's contract administration section protesting the award of the contract for the BTW project to Pass. The August 14 notice of protest includes virtually the same factual allegations as those set out in the Petition which initiated these proceedings. Danville-Findorff supplemented the allegations contained in its August 14 notice of protest in letters dated August 19, 1998, and September 1, 1998, which included additional information regarding Joseph Mijares, the qualifying agent for Acestarz. On August 18, 1998, Pass sent to the School Board via facsimile an M/WBE Subcontractor/Consultant Letter of Intent executed by G. Family Ent., Inc., a certified M/WBE, in which that company agreed to perform the same scope of work that Acestarz had agreed to perform in its Letter of Intent submitted to the School Board on August 6, 1998.5 G. Family Ent., Inc., agreed to do the work for $500,000, the same price specified by Acestarz. Although the School Board never issued a formal response to Danville-Findorff's August 14 notice of protest, the issues raised were resolved when Ms. Freeman issued a Notice of Noncompliance dated August 26, 1998, in which she stated that, based on her analysis of Acestarz' status, Pass's bid did not meet the eight-percent assistance levels for African American M/WBEs established for the BTW project. Ms. Freeman's conclusion was based on a finding that Acestarz' $500,000 proposal could not be credited toward the African American assistance levels required for the BTW project because "ACESTARZ was neither qualified as a construction company on bid day, nor can it be certified as an M/WBE." Ms. Freeman refused to authorize Pass to substitute another M/WBE subcontractor for Acestarz because "it can only be assumed that Pass was fully aware of ACESTARZ' status." When it received the Notice of Noncompliance, Pass timely requested a meeting with Ms. Freeman, as permitted in Section IV.B.2. of the Special Provision. The meeting was held on August 28, and, on September 4, 1998, Ms. Freeman issued a Final Notice of Noncompliance in which she reiterated her conclusion that Pass's bid was not in compliance with the African American M/WBE assistance levels required for the BTW project. In the final notice, Ms. Freeman stated: ACESTARZ was not qualified to perform construction services of any nature at the time of bid. Not only did it not hold a State license but it was denied a County license without first obtaining the requisite local or state licenses. Therefore, it was not eligible or qualified to bid as a prime or a subcontractor. * * * In conclusion, Pass not only listed an unqualified firm, but one that was not legally organized to conduct business as a construction company. Therefore, Pass cannot be credited for including ACESTARZ to meet the M/WBE requirements, on this project. * * * To your request for immediate authorization to allow Pass to substitute [another M/WBE subcontractor for] ACESTARZ,"[6] please be advised that Pass . . . made" the same request on August 12, 1998, Please be advised that, other than certified M/WBEs, prime contractors are only credited for listing subcontractors, that meet all legal requirements, but fail to be certified for reasons determined by the Division, in accordance with M/WBE Certification requirements. ACESTARZ was not legally qualified to engage in the construction business at the time of bid opening, and withdrew its M/WBE Certification Application."[7] Therefore, a substitution for the firm cannot be allowed. Section IV.C.5. of the Special Provision provides that the Final Notice of Noncompliance "shall be final and conclusive. The Compliance Administrator shall recommend that the Compliance Review procedure be initiated with respect to the next lowest responsive Bidder, or all remaining bids may be rejected and the project readvertised." A compliance review was not initiated for Danville-Findorff because, on September 4, 1998, Pass delivered its Formal Written Protest to the School Board. Pass stated in the protest that "the stated basis for declaring Pass International, Inc. to be not in compliance with the M/WBE subcontracting requirements set forth in the notice of August 26, 1998, is clearly in error." Specifically, Pass challenged Ms. Freeman's conclusion that Acestarz was not qualified to do the work specified in the Form FM 4828 because it was not licensed at the time Pass submitted its bid. The issues raised in Pass's protest were resolved when Ms. Freeman sent Pass a letter dated September 29, 1998, entitled "RESCISSION OF NOTICES OF NONCOMPLIANCE" for the BTW project.8 Ms. Freeman rescinded the Final Notice of Noncompliance because, at the recommendation of the School Board's legal counsel, she reconsidered the definition of the term "qualified" contained in Section I.A.21. of the Special Provision and determined that, under this definition, Acestarz "is considered a qualified subcontractor for purposes of M/WBE Compliance." Specifically, Ms. Freeman concluded that, pursuant to Section I.A.21. of the Special Provision, it was not the responsibility of the Division of Business Development and Assistance to determine whether Acestarz was qualified to do the work included in Pass's bid submittal. Rather, according to Ms. Freeman, it was Pass's responsibility. In addition, Ms. Freeman concluded that, pursuant to Section I.A.21. of the Special Provision, an M/WBE does not need to be licensed or certified at the time the bid is submitted. Rather, it need be licensed to do the work and certified as an M/WBE Subcontractor in the appropriate category at the time it performs the work under the contract. During her re-evaluation of the notices of noncompliance, Ms. Freeman also decided that it was improper to conclude during the compliance review that Acestarz was not certifiable as an African American M/WBE. A compliance review to determine whether M/WBE assistance levels are met by a bidder is done pursuant to the criteria set out in the Special Provision; the decision to grant or deny an application for M/WBE certification is based on an evaluation of the application pursuant to the standards established in School Board Rule 6Gx13- 3G-1.05. As a result, Ms. Freeman advised Pass in the September 29 letter that, as "the next step in the process," the Division of Business Development and Assistance would complete its review of Acestarz' certification application.9 Some of the criteria for certification specified in School Board Rule 6Gx13-3G-1.05 are the same as or similar to the minimum criteria for an M/WBE subcontractor to be qualified pursuant to Section I.A.21. of the Special Provision. In a letter dated October 23, 1998, entitled "DENIAL OF MINORITY/WOMEN BUSINESS ENTERPRISE (M/WBE) CERTIFICATION," Ms. Freeman advised Joseph Akoni that the documents he submitted failed to show that he "has the capability, knowledge, training, education, and experience needed, to independently guide the future and destiny of Acestarz' construction activities." (Emphasis in original.) Ms. Freeman also observed that, as a matter of statutory law, Acestarz' Hispanic qualifying agent, Robert Joseph Mijares, "has the responsibility to supervise, direct, manage and control the contracting and construction activities of Acestarz." Ms. Freeman concluded: "In summary, Acestarz's construction activities appear, at best, to be managed and controlled jointly by an African American and a non-African American. Therefore, the firm failed to establish eligibility for certification as African American-owned and controlled business, as prescribed by School Board rules." A copy of this denial notice was sent to Pass. Acestarz appealed the decision to deny its application for certification as an African American M/WBE. Ms. Freeman's decision was affirmed by the Certification Appeals Committee, and, in a letter dated November 20, 1998, Ms. Freeman sent to Acestarz' attorney the "FINAL MINORITY/WOMEN BUSINESS ENTERPRISE (M/WBE) CERTIFICATION DENIAL NOTICE." Section III.D. of the Special Provision specifies that, if an M/WBE listed on Form FM 4828 is "determined not to be certifiable, [the M/WBE] must be substituted with another certified or certifiable M/WBE before award." Accordingly, on December 11, 1998, Pass proposed to use TCOE Corporation, a certified African American M/WBE, as a substitute for Acestarz, to do the same scope of work for $550,000. The request to substitute TCOE had not been granted or denied at the time of the final hearing. Summary With respect to the first and second factual issues raised in Danville-Findorff's formal bid protest, the evidence presented is sufficient to establish that Acestarz was neither licensed nor certified as an African American M/WBE at the time Pass submitted its bid on the BTW project. This is irrelevant, however, to a determination of whether Pass's bid is in compliance with the bid specifications because, pursuant to Section I.A.21. of the Special Provision, an M/WBE subcontractor need be licensed and certified only "at the time it is scheduled to perform" work under the contract. With respect to the third issue raised in its formal bid protest, Danville-Findorff presented evidence during the hearing regarding the licensing requirements for construction contractors found in Chapter 489, Florida Statutes, and in Chapter 10, Code of Metropolitan Dade County. Its apparent aim in presenting this evidence was to establish that, because Acestarz was not licensed by the state or the county, Acestarz could not submit a proposal to Pass for inclusion in its bid on the BTW project under the definition of "contracting" in the statute and in the code provision. In essence, Danville-Findorff is attempting to challenge the provision in Section I.A.21. of the Special Provision which requires that an M/WBE subcontractor be licensed at the time it is scheduled to perform work on the project. Danville-Findorff may not do so in this proceeding: The notice of protest challenging the specifications contained in an invitation to bid must be filed within seventy-two hours "after the receipt of . . . intended project plans and specifications in an invitation to bid or request for proposals, and the formal written protest shall be filed within 10 days after the date the notice of protest is filed." Section 120.57(3)(b), Florida Statutes (1997). Danville-Findorff protested only the School Board's intention to award the contract to Pass, and the protest was filed after the bids were opened. With respect to the fourth issue raised in Danville- Findorff's formal bid protest, the evidence is uncontroverted that Joseph Mijares, an employee of Pass until October 1998, acted as the qualifying agent for Acestarz, as that term is defined in Section 489.105(4), Florida Statutes. Danville- Findorff's purpose in presenting this evidence is apparently to establish that Mr. Mijares exerts complete control over Acestarz by operation of this statute. According to Danville-Findorff, this level of control by a Hispanic violates School Board Rule 6Gx13-3G-1.05.I. which requires that an African American M/WBE be fifty-one percent "owned and controlled, in form and in substance" by African Americans. The issue of control is, however, not relevant to a determination of whether a bidder is in compliance with the terms of the Special Provision. Rather, the issue of control is relevant only to a determination of whether an application for certification as an African American M/WBE should be granted or denied pursuant to School Board Rule 6Gx13-3G-1.05. With respect to the sixth issue raised in its formal bid protest, Danville-Findorff presented no credible evidence to establish that it was placed at a competitive disadvantage with regard to its bid on the BTW project because an employee of Pass acted as qualifying agent for Acestarz for purposes of Acestarz' application for licensure as a general contractor. With respect to the seventh issue raised in Danville- Findorff's formal bid protest, the evidence is uncontroverted that Acestarz did not submit an application for certification as an African American M/WBE with its Letter of Intent. This was unnecessary pursuant to Section III.A.3. of the Special Provision because Acestarz' application for certification was submitted on or about June 1, 1998, and was pending at the time Pass's bid was submitted. With respect to the fifth and eighth issues raised in its formal bid protest, Danville-Findorff presented sufficient evidence to establish with the requisite degree of certainty that, at the time the bid package was submitted, Pass did not satisfy the eight-percent assistance level for African American M/WBE participation on the BTW project: Pass did not satisfy the responsibility imposed on it in Section I.A.21. of the Special Provision to determine whether Acestarz was "qualified" or "potentially qualified” to do the work it had proposed to do on the BTW project. Mr. Louden, the Pass employee who prepared the Pass's bid package for the BTW project, did not possess adequate information regarding Acestarz or its president, Mr. Akoni, to determine whether Acestarz satisfied the criteria set out in Section I.A.21., which are the minimum criteria that must be met by a subcontractor to be "potentially Qualified to do specific work." In addition, Mr. Louden failed to make any meaningful inquiry into the qualifications of Acestarz. Because Pass lacked adequate information regarding Acestarz' qualifications and failed to make meaningful inquiry to ascertain Acestarz' qualifications at the time Pass submitted its bid package, Pass could not, in good faith, represent to the School Board that Acestarz was "qualified" or “potentially qualified” at the time the bid was submitted, which it did pursuant to Section III.B.A. of the Special Provisions when it listed Acestarz on the Form FM 4828.9 Because Pass did not conform to the requirements of Section I.A.21. and Section III.B.4. of the Special Provision when it listed Acestarz as a "qualified" or “potentially qualified” African American M/WBE subcontractor, it was not entitled to use Acestarz to meet the African American M/WBE assistance levels for the BTW project at the time it submitted its bid. Furthermore, under these circumstances, Pass cannot substitute another subcontractor for Acestarz because that option is available pursuant to Section III.D. of the Special Provision only upon the denial of the application for certification of an M/WBE which was not certified at time the bid was submitted. Because Pass's bid does not meet the assistance levels established for African American M/WBEs set out in the Special Provision for Compliance with M/WBE Subcontracting Assistance Levels Participation, Pass's bid was not in compliance with the Special Provision at the time it was submitted. Therefore, Pass's bid is not responsive to the bid specifications for the BTW project. The award the contract for the BTW project to Pass would be contrary to the bid specifications and would be arbitrary in light of the facts found herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board reject the bid of Pass International, Inc., as non-responsive to the bid specifications and that a compliance review be initiated with respect to the next lowest responsive and responsible bidder. DONE AND ENTERED this 14th day of April, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1999.
