Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Granting Motion to Relinquish Jurisdiction and Closing Files by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby Filed July 18, 2011 10:02 AM Division of Administrative Hearings adopts the Order Granting Motion to Relinquish Jurisdiction and Closing Files as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED DONE AND ORDERED this Ee day of July, 2011, in Tallahassee, Leon County, Florida. whet Sandra C. Lambert, Director Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this ___/4 day of July, 2011. Nalini Vinayak, Dealer Ucense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCLivlg Copies furnished: J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 John W. Forehand, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 Eric Scott Adams, Esquire Shutts & Bowen, LLP 100 South Ashley Drive, Suite 1500 Tampa, Florida 33602 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator
The Issue The issue is whether General Motors is inadequately represented in the relevant community or territory and whether Collection Chevrolet, Inc., (Collection) should be permitted to relocate as requested in its application.
Findings Of Fact Abraham timely filed with the Department of Highway Safety and Motor Vehicles its July 6, 1987 letter of protest, which became the initial petition herein. On July 24, 1987, Collection and GM filed a Motion to Dismiss that initial petition. Abraham moved for leave to file an amended Petition. Collection and GM consented to the filing of an amended petition. By Order of August 25, 1987, the undersigned granted the filing of the proposed amendments, which had not been incorporated by Abraham into a fully new petition. Collection and GM addressed these amendments in a Motion to Dismiss Amended Petition, which addressed the new matters raised in the Abraham's amendatory paragraphs. This August 24, 1987 Motion to Dismiss Amended Petition also incorporated Collection's and GM's arguments from heir earlier Motion to Dismiss. Abraham filed a Motion for Reconsideration of the August 25, 1987 Order, together with Abraham's Amended Petition on September 2, 1987; upon which pleadings oral argument was heard by telephonic conference call. Thereafter, by September 18, 1987 Orders Abraham's Amended Petition filed September 2, 1987, was deemed to be Abraham's duly filed second Amended Petition; GM's and Collection's July 24, 1987 Motion to Dismiss and August 24, 1987 Motion to Dismiss Amended Petition were permitted to stand over against Abraham's September 2, 1987, second Amended Petition; GM and Collection were permitted to file amendments to their motions to dismiss directed specifically to the September 2, 1987 second Amended Petition, which amendments Collection and GM timely filed; and Abraham was permitted to file a response to Collection's and GM's final motions/amendments, which response was filed October 5, 1987. Although untimely by the terms of the September 18, 1987 Order, Abraham's response has also been considered. Collection has applied to the Department of Highway Safety and Motor Vehicles for a license to relocate Collection's GM dealership from its existing location at 9200 N.W. 27th Avenue between 91st and 95th Streets, to a new location on the south side of the Tamiami Trail between N.W. 139th and 143rd Avenues, in Miami, Dade County, Florida. The relocation would result in the distance between applicant Collection and protestant Abraham being more than doubled from 4.4 miles to 9.6 miles. Collection's application is not an initial applications and seeks only a change of physical address. Thus, it is not an application for a new license but an application for relocation. The map attached to the second Amended Petition as Exhibit A contains the legend, "Abraham AGGSA 11" and a line drawn on the map outlining an area of central Dade County, Florida. The western boundary is irregular but is between 87th Avenue and 67th Avenue, centering around the Palmetto Expressway, State Road 826, which is approximately at 78th Avenue. On the north, the boundary is irregular but centers around N.W. 30th Street. The southern and eastern boundaries are irrelevant. In its second Amended Petition, Abraham pleads the map's boundaries as its area of primary responsibility. In its October 5, 1987 Response to the motions to dismiss, Abraham admits there is no dispute of fact regarding the further distance relocation, the existing physical location of Collection, or the proposed physical location of Collection but perversely argues that, "In dispute as well is the area of primary responsibility contractually assigned to Abraham by GM. Abraham has serviced for a number of years, the proposed area into which Collection proposes to move, with the knowledge and consent of GM." GM does not admit that the area designated on the map attached as Exhibit A to Abraham's second Amended Petition has been contractually assigned by GM to Abraham as a primary area of responsibility or by any other designation as alleged by Abraham. However, assuming arguendo for purposes of these motions, that the area specifically pled by Abraham has been so designated, then Collection's proposed new location will be no closer to Abraham's alleged area of responsibility than is Collection's existing location. The existing Collection location north of 91st Street is approximately 61 blocks north of the northern boundary of Abraham's alleged area of responsibility, which is in the vicinity of 30th Street. The proposed relocation of Collection west of 139th Avenue is similarly approximately 61 blocks west of the western boundary of Abraham's alleged area of responsibility, which is in the vicinity of 78th Avenue.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that Abraham's second Amended Petition/protest be dismissed with prejudice. DONE and RECOMMENDED this 21st day of October, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1987.
Findings Of Fact Children's Medical Services (CMS) is a statewide program of the Department of Health and Rehabilitative Services which provides services for children who are suffering from medically debilitating or potentially medically debilitating conditions of a chronic nature. In Broward County, Respondent, District X of the Department of Health and Rehabilitative Services (District X), provides CMS services to approximately 4,000 children. The CMS Broward County Clinic is currently located in a leased facility. The lease expires in August, 1995. In the fall of 1994, District X determined that it would seek to lease a larger facility in the private sector to replace the existing leased facility. In November, 1993, Christopher Edghill, who was then the Facilities Manager for District X, prepared a Request for Prior Approval of Space (RNS), seeking approval from the Department of Management Services (DMS) for a new lease to house the CMS program in District X. The RNS stated that District X desired to enter into a ten-year turnkey lease for 19,233 square feet. District X desired to acquire the facility in the private sector through a competitive bidding process. The RNS also included a Letter of Agency Staffing as justification for the space requested and a certification that the district had sufficient funds available to pay for the leased space. Prior to submitting the RNS to DMS, Mr. Edghill did not inquire whether there was public space available in Broward County which would be suitable for housing the CMS program, and no evidence was presented to show that public space was available at that time. After submission of the RNS, District X amended the RNS to include an option to renew. The RNS was approved by DMS on December 3, 1993. In January, 1994, District X issued the solicitation document for bids for lease for CMS facility. The lease number assigned was 590:2490. A pre-bid conference was held on February 10, 1994. James F. Antonucci, a representative for Petitioner, Gulf Properties, Inc. (Gulf), attended the pre-bid conference. On April 4, 1994, Dr. Joni Letterman, who is the Medical Director of CMS for District X, was approached by Linda Bouffard and Rita Frantz concerning a needs assessment for a children's medical center in conjunction with North Broward Hospital District (NBHD). At that time the children's center was in its very early planning stages. The children's center was envisioned to be a combined maternal, obstetrical, pediatric, neonatal and full service children's hospital center with inpatient and outpatient services. On April 6, 1994, Gulf entered into an option agreement to purchase land for space to be utilized for Lease No. 590:2490 should Gulf be awarded the contract. Gulf and ANF Real Estate Group, Inc. (ANF) timely submitted responses to the solicitation by District X. The bids were opened on April 7, 1994. Gulf submitted one bid and ANF submitted two bids. Gulf's bid offered a full service lease at $16.79 per square foot for the first year for 19,800 square feet, plus or minus three percent. A bid evaluation committee of five (5) members was selected by District X. One of the evaluation committee members was Dr. Letterman. On April 20, 1994, the evaluation committee visited the sites proposed by the bidders. By letter dated April 22, 1994, Dr. Letterman notified Ms. Frantz and Ms. Bouffard that CMS was in the process of selecting a bidder for a ten year lease and that relocation of CMS as part of the children's center would not be possible. Sometime in late April or early May, 1994, Dr. Letterman was asked to join the Children's Initiative Committee, which was formed to expand on the concept of the children's center. Dr. Letterman attended her first committee meeting in early May, 1994. At that meeting the committee asked Dr. Letterman where CMS could fit into the children's center concept. Dr. Letterman explained that District X was in the midst of a competitive procurement process for a new CMS facility and did not know whether CMS could commit to relocating on the campus of Broward General Medical Center (BGMC). Mr. Will Trower, Chief Officer of BGMC, was present during the meeting but did not offer any space at that time relating to CMS for use while the children's center was being developed. By memorandum dated May 27, 1994, the evaluation committee notified the acting district administrator that Gulf received the highest rating and recommended that the lease be awarded to Gulf. By letter dated June 9, 1994, Dr. Letterman wrote to Mr. Trower, stating: For CMS to move forward toward the Children's Center concept and reject bids already submitted, the Department requires a written letter of commitment assuring CMS space and related needs will be met as well as a provision for an interim CMS site as of September 1, 1995, the date our current lease expires. Due to constraints related to the bid process, I must have this written confirmation by the close of business, Thursday, July 16, 1994. By letter dated June 13, 1994, Dr. Letterman advised Mr. Trower that the deadline for response was incorrect in her June 9, 1994 letter and should have read June 16, 1994. Mr. Trower responded by letter dated June 16, 1994, wherein he advised: As it relates to interim space for CMS, I can at this time commit to offering to meet with you to have you consider space that will be available this spring in our medical office tower adjacent to the hospital. Based on our previous discussion, I believe this space will be adequate in size and capability for an interim location of the CMS services. A lease agreement could be established which would meet your needs for relocation and provide an interim location until such time as the Children's Center is completed. BGMC offered a full service lease of 16,950 square feet for $14.50 per square foot. By memorandum dated June 20, 1994, Mr. Edghill recommended that the best decision would be to award the lease to Gulf. This recommendation was based on Trower's letter which indicated that the Board of Commissioners would have to approve the initiative to develop the children's center, on the effect that a delay could have regarding the bidders' options on the proposed sites, and on the likelihood of a protest by the bidders. By letter dated June 24, 1994, District X advised the bidders that authorization had been granted to award the lease to Gulf. A letter of intent to protest the award was timely filed by ANF on June 27, 1994, followed by a timely filed formal protest on July 9, 1994. On June 30, 1994, Gulf entered into an Agreement for Purchase and Sale of the property which was the subject of the April 6, 1994, option agreement. By memorandum dated August 17, 1994, the District X administrator advised James Towey, the Secretary of HRS, of possible options for resolving the CMS lease problem. Option I was to proceed with the competitive bid process through resolution of the ANF protest and sign a contract with Gulf Real Properties. Option 2 was to terminate the competitive bid process, request proposals from the North and South Broward Hospital Districts and award CMS lease space according to revised criteria. Option 3 was to award the lease to Gulf but alter the occupancy plan by replacing clinic-specific space with general office space and relocating other District programs to the site. The District would then award the clinic-specific space to a hospital entity. On August 26, 1994, ANF filed a Notice of Withdrawal of Formal Written Protest, advising District X that ANF was abandoning its requests for agency action regarding Lease No. 590:2490. On August 26, 1994, Gulf entered into an addendum to the purchase and sale agreement, whereby it was acknowledged that a protest had been filed by ANF concerning the bid award for the lease of the facility which Gulf intended to construct on the property and it was agreed that Gulf had until September 30, 1994, to resolve the protest and that if the protest was not resolved in favor of Gulf that Gulf could cancel the contract. By memorandum dated August 29, 1994, Secretary Towey advised the District X administrator to follow Option 2. His decision was based on his understanding that the District had incorrectly considered North Broward Hospital ("BGMC") not to be a governmental entity when it made its initial decision to award to Gulf and the move to North Broward Hospital would be in the best interests of their clients. By letter dated August 31, 1994, District X advised Gulf that ANF had withdrawn its protest and that District X was rejecting all bids because suitable space had been made available by governmental entities. The letter advised Gulf that it could request an administrative hearing within 30 days of receipt of the letter. The governmental entities referred to in the August 31, 1994 letter were North Broward Hospital and South Broward Hospital. At the end of June, 1994, Dr. Letterman toured the BGMC office space. She determined that the space offered by BGMC was adequate to meet the needs of the District for the CMS clinic. A large number of CMS' clients are located near the hospital. Co-location of CMS at BGMC would allow the sharing of certain areas such as the employee lounge, the medical library, and medical record storage, thus reducing the space that would be required for the CMS program. Additionally, CMS employees, such as economic eligibility employees could be outposted at the hospital, thereby eliminating office space at CMS. Currently BGMC provides services to the CMS clinic such as x-ray, laboratory, diagnostic, hearing testing, and sleep studies. Co-location of CMS and BGMC would eliminate the need to shuttle clients back and forth between the clinic and the hospital and thereby reduce the stress on the childrens' families and provide more efficient services. For example, co-location would eliminate the need for a child who was going to have outpatient surgery of having to go to the clinic for a pre-op exam, travel to another location for laboratory work, and then go to a different location for the surgery. Through co-location the services could be provided in one visit at one location. Co-location of CMS with BGMC should result in more efficient use of the physicians' time. For example the doctors would not have to travel back and forth from the clinic to the hospital. Patient records would be more accessible for use by the physicians because the records could be maintained in one location. In reviewing the proposals submitted by Gulf and ANF, Dr. Letterman had been concerned about the location of an emergency room near the proposed locations. The co-location of CMS and BGMC would result in an emergency room in a CMS approved hospital being in close proximity to the clinic. On August 31, 1994, Gulf sent a termination letter to the seller of the property, advising that District X had rejected all bids. Gulf and the seller of the property thereafter executed another addendum to the purchase contract effective September 15, 1994, which allowed the withdrawal of the termination letter and provided that the closing should take place no later than May 31, 1995. Gulf timely filed its Petition for Administrative Hearing on September 30, 1994. In 1975, DMS, formerly the Department of General Services, promulgated what is now numbered as Rule 60H-1.017, Florida Administrative Code. This rule deals with turnkey leases. The rule was amended once in 1986. Sometime during 1976 or 1977, management at DMS, relying on advice from legal counsel, determined that it did not have the authority to participate in the evaluation of proposals for turnkey leases of user agencies and decided to ignore Rule 60H-1.017, formerly Rule 13M-1.017. DMS did not repeal the rule and amended the rule in 1986. The DMS real property leasing manual as revised in 1986 contained the procedures for the procurement of turnkey leases as set forth in Rule 60H-1.017. In 1979, HRS promulgated Rule 10-8.007, Florida Administrative Code, dealing with turnkey leases. The rule has not been amended since its adoption. In 1993 or 1994, the Division of Facilities Management of DMS, loaned a staff person to HRS to assist in the revision of HRS Manual, Facilities Acquisition and Management, Procuring Leased Space. This manual provides that for the procurement of turnkey lease construction the District should refer to Section 60H-1.017, Florida Administrative Code, and the Department of Management Services' Real Property Lease Manual and consult with the office of general services of HRS. District X has not made a recommendation to DMS for the proposed award of the lease in issue. The Division of Facilities Management has not made an evaluation of the proposals. There has been no joint approval by the Department of Management Services and District X on the proposal submitted by Gulf Properties. Although Rules 60H-1.017 and 10.8.007 are still in existence, HRS has been following the procedures set forth in Rule 60H-1.015 at least since 1983. Essentially, HRS determines whether there is existing space available and requests approval from DMS to seek a turnkey lease if there is no existing space available. If DMS approves HRS to seek a turnkey lease, HRS advertises for proposals, reviews the proposals submitted, gives notice of an intended award, and sends documentation to DMS in order that DMS may review and approve the lease. In turnkey lease procurements, DMS has followed a procedure similar to that set forth in Rule 60H-1.015. DMS reviews the initial request from HRS to go out for a turnkey lease. If approved HRS proceeds to solicit and award a lease. DMS will give technical assistance to HRS during the procurment process if HRS requests. After HRS notifies the bidders of the intended award, it sends documentation to DMS for review and approval. DMS reviews the following things: floor plans and specifications; price; compliance of design with the standards of the Americans with Disabilities Act; appropriateness of the completion date of the project; availability of public transportation; parking facilities; and dining facilities as they relate to the turnkey lease location. If any of the criteria reviewed by DMS is inappropriate or fails to comply with the specifications or DMS standards, DMS will not let HRS go forward with the project until the deficiency is corrected. The bid solicitation document provides: Notification of bid award is final when either no protests are submitted or after all protests are resolved by an administrative hearing procedure. Subsequent protests at District Court level will not be grounds for delaying bid award. The solicitation document also states that HRS has the right to reject any and all bids.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Gulf's bid protest and rejecting all bids for lease number 580:2490. DONE AND ENTERED this 15th day of August, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 15th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5628BID To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraphs 2-5: Rejected as unnecessary detail. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as unnecessary detail. Paragraph 8: Accepted in substance. Paragraph 9: Rejected as unnecessary detail. Paragraphs 10-15: Accepted in substance. Paragraphs 16-17: Rejected as unnecessary detail. Paragraph 18: Accepted in substance. Paragraph 19: The portion of the paragraph stating that Gulf has maintained control of the subject property since the time of initial option is rejected as not supported by the greater weight of the evidence. The remainder of the paragraph is accepted in substance. Paragraphs 20-21: Accepted in substance. Paragraph 22: The first sentence is rejected as unnecessary detail. The second sentence is accepted in substance. Paragraphs 23-25: Accepted in substance. Paragraph 26: The portion of the sentence which states the ITB required that the award letter be issued within 30 days is rejected as not supported by the greater weight of the evidence. The remainder is accepted in substance. Paragraph 27: Rejected as immaterial. Paragraph 28: Accepted in substance. Paragraph 29: Rejected as immaterial. Paragraphs 30-31: Accepted in substance. Paragraphs 32-33: Rejected as immaterial. Paragraph 34: The portion that states the notice of withdrawal was filed on August 26 is accepted. The remainder is rejected as unnecessary detail. Paragraph 35: Accepted in substance. Paragraph 36: Accepted in substance to the extent that the manual refers to Rule 60H-1.017 F.A.C. for the procedures for turnkey leases. Paragraph 37: Rejected as immaterial. Paragraph 38: Accepted in substance to the extent that he did follow the manual but not to the extent that the manual set forth the procedures for procuring a turnkey lease. Paragraph 39: Rejected as not supported by the greater weight of the evidence and as contrary to law. Paragraphs 40-41: Rejected as unnecessary. 27 Paragraph 42: Accepted in substance. 28. Paragraphs 43-44: Rejected as unnecessary. Paragraph 45: Accepted in substance. Paragraphs 46-47: Rejected as unnecessary detail. Paragraph 48: Accepted in substance. Paragraph 49: Rejected to the extent that the only government entity interested in providing space was Broward General. Paragraphs 50-51: Rejected as unnecessary. Paragraphs 52: Rejected as subordinate to the facts found. Paragraphs 53-59: Accepted in substance. Paragraphs 60-68: Rejected as irrelevant. Paragraph 69: Rejected as not supported by the greater weight of the evidence. Paragraphs 70-71: Accepted in substance. Paragraphs 72: Rejected as irrelevant as to whether she was qualified as an expert. Paragraph 73: Rejected as unnecessary detail. Paragraph 74: Accepted in substance. Paragraphs 75-81: Rejected as subordinate to the facts found. Paragraph 82: The first half of the sentence is rejected as unnecessary detail. The remainder of the sentence is accepted in substance. Paragraphs 83-90: Rejected as subordinate to the facts found. Paragraph 91: Rejected as constituting argument. Paragraphs 92-96: Rejected as subordinate to the facts found. Paragraph 97: Accepted as that has been the practice of HRS but rejected to the extent that it reflects what is required by Rule 60H-1.017. Paragraph 98: Rejected as not supported by the greater weight of the evidence and by the law. Paragraph 99: Rejected to the extent that it implies that DMS approval only means that the lease is effective for payment. Approval by DMS is required for a turnkey lease before the lease can be executed by the parties. Paragraph 100: Accepted to the extent that it means that DMS has not evaluated and given approval of the award. Supplement to Proposed Recommended Order Paragraphs 1-2: Rejected as unnecessary. Paragraph 3: Accepted in substance. Paragraph 4: Accepted in substance to the extent that HRS had the authority if it followed the procedures under 60H-1.017, and to the extent that the leases were eventually approved by DMS, HRS's premature notices of award were ratified. Paragraph 5: Accepted to the extent that it applies to the time periods before HRS issued a notice of award. Paragraph 6: Accepted in substance. Paragraphs 7-8: Rejected as unnecessary. Paragraph 9: The first sentence is accepted in substance as it pertains prior to HRS issuing a notice of award. It is clear that DMS did do some evaluation of the proposed awardee's proposal prior to DMS approving the lease. The second sentence is accepted in substance as to what actually happened but rejected as to what was stated in Rule 10-8.007 and HRS's interpretation as set forth in its leasing manual. Paragraphs 10-12: Accepted in substance. Paragraph 13: Accepted in substance to the extent that it refers to the time prior to an agency issuing a notice of intended award. Paragraphs 14-15: Accepted in substance. Paragraph 16: Accepted in substance to the extent that the procedures were consistent but that the procedures repudiated the procedures set forth in DMS's duly promulgated Rule 60H-1.017. Paragraph 17: Accepted in substance. Paragraph 18: Rejected as constituting a conclusion of law. Paragraph 19: Rejected as not supported by the greater weight of the evidence. Paragraph 20: Rejected as constituting a conclusion of law. Paragraph 21: Accepted to the extent that the District Administrator has authority to award when the appropriate rules have been followed. Paragraphs 22-23: Accepted in substance. Paragraph 24: Irrelevant since her current duties do not include procurement of turnkey leases and in the past she did not participate in the procurement of a turnkey lease. Paragraph 25: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraphs 1-4: Accepted in substance. Paragraph 5: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraphs 6-9: Accepted in substance. Paragraphs 10-11: Rejected as subordinate to the facts found. Paragraph 12: The paragraph is accepted in substance as it relates to state-owned facilities but not as it relates to other governmental facilities. Paragraphs 13-14: Accepted in substance. Paragraph 15: Rejected as unnecessary detail. Paragraphs 16-17: Rejected as immaterial to the facts actually found. Paragraphs 18-19: Rejected as unnecessary detail. Paragraphs 20-51: Accepted in substance. Paragraph 52: Rejected to the extent that it implies that for this particular case it was the sole responsibility of District X to evaluate the proposals. Paragraphs 53: Rejected as unnecessary detail. Paragraphs 54-55: Accepted in substance. Paragraph 56: Rejected as immaterial. Paragraph 57: Accepted in substance. Paragraphs 58-59: Rejected as immaterial. Paragraph 60: Accepted in substance. Paragraph 61: Accepted in substance except as to the statement the pressure was passed on, which is rejected as not supported by competent substantial evidence. Paragraphs 62-66: Accepted in substance. Paragraph 67: Accepted in substance except as to the date. The notice was faxed to the District on August 26 and a hard copy was submitted on August 29. Paragraph 68: Rejected as not supported by the evidence. 23 Paragraph 69: Accepted in substance. Paragraph 70: Rejected as unnecessary. Paragraph 71: Accepted in substance. Paragraph 72: Rejected as constituting a conclusion of law. Paragraph 73: Rejected as unnecessary. Supplemental Proposed Findings of Fact Paragraphs 1-2: Accepted in substance. Paragraph 3: Accepted in substance to the extent that the evaluation by DMS and the user agency is not done simultaneously. Paragraphs 4-9: Accepted in substance. Paragraph 10: Accepted to the extent that in actual practice DMS assists when requested by the user agency prior to the issuance of the notice of award. Paragraphs 11-19: Accepted in substance. COPIES FURNISHED: Kim Tendrich, Esquire District 10 Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard Suite 513 Fort Lauderdale, Florida 33301 William A. Frieder, Esquire Assistant General Counsel Building E, Suite 200 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Wilbur E. Brewton, Esquire I. Ed Pantaleon, Esquire Taylor, Brion, Buker & Greene 225 South Adams, Suite 250 Tallahassee, Florida 32301 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for determination in this proceeding is whether Respondent discriminated against Petitioner on the basis of her race, sex, familial status, or association with handicapped individuals in violation of Subsection 760.23(2), Florida Statutes (2003), by refusing to renew Petitioner's lease when it expired or by subjecting Petitioner to different treatment than other similarly situated tenants.
Findings Of Fact Petitioner is a member of a protected class. Petitioner is a female whose race is African-American. Petitioner's household includes children who are under the age of 18 and who are, or who are perceived to be, handicapped. Respondent rents dwelling units to the public at 5455 Pointe Vista Circle, Orlando, Florida. The apartment community is identified in the record as Pointe Vista Apartments (Pointe Vista). Petitioner applied to lease an apartment at Pointe Vista on November 1, 2001. Respondent approved the application and the parties entered into a written lease for a term of "one year" beginning on December 21, 2001, and ending on November 30, 2002. The parties subsequently entered into a renewal lease covering a term from December 1, 2002, through November 30, 2003. Respondent performed various repairs and maintenance jobs in Petitioner's apartment from sometime in March 2003, through September 17, 2003. Petitioner requested most of the repairs, but some of the jobs involved required maintenance. Respondent made six repairs to the air-conditioning system. Some of the repairs to the air-conditioning system were required because Petitioner, or members of her household, had damaged the thermostat. The property manager notified Petitioner in writing that Petitioner was not in compliance with the lease because Petitioner failed to operate the air- conditioning system properly and that a repeat violation within 12 months would be grounds for termination of the lease. The property manager observed the apartment during one of the repairs. On June 26, 2003, the property manager notified Petitioner in writing that Petitioner was not in compliance with the lease because Petitioner failed to maintain the apartment in accordance with the terms of the lease. In particular, doors were "punched" out, wet newspaper was in the kitchen, the carpet was damaged and "extremely" dirty, and the microwave was broken. The notice stated that a repeat violation within 12 months would be grounds for termination of the lease. Orange County scheduled an inspection of Petitioner's apartment on August 12, 2003, to determine if the apartment was eligible for continued "Section 8 rental assistance." Petitioner refused to allow the inspection, and Orange County rescheduled the inspection for August 29, 2003. Petitioner's apartment failed the inspection conducted on August 29, 2003. In order to pass an inspection, Petitioner needed to repair a living room window, stove burners, a garbage disposal, and a loose door panel. Petitioner also needed to eliminate roach infestation and improve housekeeping. The apartment passed a subsequent inspection conducted on September 19, 2003. Respondent notified Petitioner of Respondent's intent not to renew the lease on October 23, 2003. The notice informed Petitioner that she would need to vacate the apartment by November 30, 2003. Petitioner remained in possession of the apartment during December 2003, and paid no rent. The property manager issued a "Three Day Notice to Pay Rent or Deliver Possession." Petitioner returned the keys to the apartment in early January 2004.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order determining that Respondent did not discriminate against Petitioner when Respondent refused to renew Petitioner's lease. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 3rd day of November, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Fornetha Judge Rizos 5215 Limelight Circle, Apartment One Orlando, Florida 32839 Cathy L. Lucrezi, Esquire Law Offices of Heist, Weisse, & Lucrezi, P.A. 1661 Estero Boulevard, Suite 20 Post Office Box 2514 Fort Myers Beach, Florida 33932 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner is presently operating a service station on Florida's Turnpike as a sublessee under a lease with the Department of Transportation. The service station is located at the Canoe Creek Plaza. The present lease will soon expire, and Petitioner desires to bid for the lease of a service station at the plaza. In addition, the Petitioner is interested in bidding for leases of service stations at other plazas on the Turnpike. There are seven service plazas located along the Florida Turnpike. The plazas are configured in the shape of a football and are located in the middle of the roadway, so that they are accessible to traffic from both directions. Each of the service plazas includes at least one automobile service station and a restaurant. Three of the service plazas house two automobile service stations. At these three plazas, the restaurant is located in the middle, with service stations on each side. The service stations are operated by private vendors under lease agreements with the Department of Transportation. Department of Transportation Proposed Rule 14-83.11 sets standards for lease agreements for the operation of service stations along the Florida Turnpike. Proposed Rule 14-83.11(5) provides: Where an award of the lease to the highest bidder would result in the motor fuel identified by the trade- marks, trade names, or brands of any one supplier, distributor, or retailer of such fuel being sold at more than one service station at the same ser- vice plaza, the Department shall afford the bidder an opportunity to provide a motor fuel that will not result in the motor fuel identified by the trademarks, trade names, or brands of any one supplier, distributor, or retailer of such fuel being sold at more than one service station at the same service plaza. If the bidder cannot secure a motor fuel which will result in compliance with this sub- section, the Department may award to the next highest bidder or reject all bids for that service station and re-solicit bids in accordance with Rules 14-83.06 and 14-83.07. To determine which bidder or bidders will be afforded an opportunity to provide a motor fuel identified by different trademarks, trade names or brands, the Department shall first determine the total revenue to the Department which each bid will realize. Total revenue will be determined by multiplying the pre- vious fiscal year's total gallonage for each service station times the amount per gallon bid by the bidder for that service station. The bidder whose bids would return the least revenue to the Department shall be afforded an opportunity to provide a motor fuel identified by different trademarks, trade names or brands. The effect of the proposed rule is to prohibit the sale of the same motor fuel product at both service stations at those service plazas which include two service stations. Since the Florida Turnpike first opened in 1956, the Department has never allowed the same brand of motor fuel products to be sold at both stations at two-station service plazas. In the past, the Department has enforced this policy by refusing to enter into lease agreements that would result in the policy being violated. The Department is now seeking to embody this long- standing policy in a rule which also describes how the Department will make lease selections in order to enforce the policy. There are two basic rationales for the policy. First, the motoring public is best served by a system which offers as many different brands of gasoline as possible. The motoring public is brand-conscious, and many motorists desire to use only specific brands of gasoline. Since the number of service stations on the Turnpike is limited, the Department has sought to offer the broadest range of brands possible. The second rationale for the policy is that it helps to improve traffic flows to the service plazas. If the same brand of fuel were offered at both stations in a plaza, there would be very little incentive for motorists to drive to the second station rather than stopping at the first. Congestion and a reduction of efficiency are a likely result.
The Issue As described in the parties' Prehearing Stipulation Petitioners are challenging the Respondent's (SJRWMD) solicitation process with regard to the "Invitation to submit an Offer to Purchase property known as the Zellwin Airstrip." Petitioners seek to set aside the award of purchase to Intervenors and to have the solicitation process re-advertised. The issue for resolution is whether Petitioners are entitled to that relief.
Findings Of Fact In 1996 the Florida Legislature mandated that the St. Johns River Water Management District (SJRWMD) attempt to purchase farms on the north shore of Lake Apopka as part of a long-term restoration and reclamation project. Petitioners, Rex Shepherd and Dale Harper, are pilots and owners of an aerial advertising business, American Outdoor Aerial Advertising. In early 1998 the business was operating out of Crakes field, a small airstrip owned by Kent Crakes as part of Crakes' North Lake Apopka farm. Petitioners' business owned airplanes and banners which it flew for its advertising clients such as Sears and GEICO. Sometime in early 1998 it became obvious that Petitioners would need to move their operation to another field. There were break-ins at the hanger, and the airstrip was beginning to flood as a result of the reclamation project. Kent Crakes referred Rex Shepherd to Leonard Freeman, the individual with SJRWMD who was involved with land acquisition in the area. Around March or early April 1998 Petitioners commenced discussions with Mr. Freeman regarding their use of the farm airstrip at Zellwin Farms, also part of the SJRWMD Lake Apopka farms acquisition program. Mr. Freeman was the SJRWMD point of contact for the Zellwin Farms acquisition. By early 1998, the property was already under contract and was scheduled to close some time around June 1998. Mr. Freeman and the Petitioners met at the Zellwin Farms airstrip in June 1998, and Petitioners determined the property would be suitable for their operation. Eager to accommodate Petitioners because of their predicament and also in anticipation of the SJRWMD's eventual sale of the Zellwin parcel, Mr. Freeman gave permission for Petitioners to store their equipment on the site and gave them a key. Because Zellwin Farms was beyond what SJRWMD considered to be the lake's historic shoreline, the SJRWMD knew that it would need to dispose of its 1400 acres as surplus, in whole or part. Mr. Freeman's desire was to find a way to dispose of the property as the best thing for the SJRWMD. Thus, because of the Petitioners' immediate interest in relocating their business, Mr. Freeman began negotiating with them for their purchase of the airstrip and related buildings. In September 1998, Mr. Freeman met again with Petitioners at the airstrip and discussed a specific proposal. Petitioners talked about offering $250,000 under a lease-purchase arrangement, and sent a letter dated September 10, 1998, to Mr. Freeman with that offer. Mr. Freeman later suggested that since the appraised value was $275,000, an offer in that amount would be easier to get approved. Mr. Freeman did not have the authority to obligate the SJRWMD to sell the property and Petitioners understood that. Still, Petitioners felt they were negotiating in good faith with staff who could make a strong recommendation to the board. Petitioners believed in early October that they had a hand-shake deal subject to further discussions regarding specific terms. They knew that a competitive solicitation might be an option for the SJRWMD but they also believed that they would be given an opportunity to meet another third party's offer. This belief was based not on some specific agreement for a "right of first refusal," but rather on Mr. Freeman's good-natured assurances that they would work it all out. Mr. Freeman requested that the SJRWMD special counsel develop a draft contract based on Petitioners' offer. The offer would then need to be signed by Petitioners and approved by Mr. Freeman's supervisor before going to the SJRWMD governing board. The counsel never finished the draft and it was never given to Mr. Freeman or the Petitioners. By the end of October 1998, Robert Christianson, Mr. Freeman's supervisor and director of the SJRWMD Department of Operations and Land Resources, learned that Petitioners were flying in and out of the Zellwin airstrip and using it for their business base of operations. This activity was beyond the storage permission that Mr. Freeman had granted. (Even that permission was beyond his individual authority.) Mr. Freeman and Mr. Christianson met with Petitioners on October 27, 1998, to work out a license agreement for their use of the airstrip. Such an agreement was necessary to protect the parties' respective interests and to cover the SJRWMD for any liability in the landlord/tenant relationship. The result of that meeting was a written license agreement for Petitioners to use, maintain, and provide protection for the property for a period from October 30, 1998, to April 30, 1999, subject to revocation with advance notice. Petitioners used the airstrip property under that agreement and made improvements, mostly cleaning up the facility so it could be used. At the October meeting it became obvious to Petitioners that the informal negotiations for their purchase were terminated and that the SJRWMD was going to solicit competitive offers for the purchase. This concerned the Petitioners and they felt let- down by Mr. Freeman. Still, they concentrated on getting the license agreement worked out. Rex Shepherd's account of the October meeting was that Mr. Christianson was very clear about the fact that the SJRWMD had to go for competitive bid, that they were bound by a board and rules and regulations even though both he and Mr. Freeman would like for Petitioners to have the airport, and that they should be able to work it out. At the end of the meeting, and as they were leaving the trailer, Mr. Shepherd commented to Mr. Freeman that he really did not want to lose the airport and wanted to be apprised of what was going on so that if there were a higher bid, he could have the opportunity to match it, or if it were too high, that they would have 30 or 60 days to vacate the property. According to Mr. Shepherd, Mr. Freeman simply responded, "We'll work all that out, don't worry about it." On November 11, 1998, the SJRWMD governing board voted to surplus the Zellwin Farms property with direction to the staff that the sale be widely advertised in the aviation community and not be a sole source deal. Consistent with the board's direction and pursuant to Section 373.089(3), Florida Statutes, the SJRWMD advertised a "Notice of Intention to Sell" the airstrip property in the Orlando Sentinel for three consecutive weeks, November 9, 16, and 23, 1998. The notice identifies the airstrip property as an "Approximately 47-acre agricultural airport facility, 2,200'? square feet asphalt runway, 5,250 ? square feet metal hanger, 2,048 ? storage square feet building, well and septic tank at a location of northwest Orange County, Florida, Sections 20 and 29, T-20-S, R-27-E, on Jones Avenue, 1 ? mile west of U.S. Highway 441, Zellwood." The Notice of Intention to Sell states that "[a]ll interested persons are invited to submit an offer to the District for purchase of said lands. Contact the District . . . and request an Airport Sales Package." Both the Airport Sales Package and the Notice of Intention to Sell state that the airport property will be sold for the highest price obtainable. The sales package states that full cash offers to be paid at closing will be given first consideration and that 10 percent of the purchase price must be paid when the offeror was notified that it was successful. The sales package also states that any person adversely affected by an offer solicitation shall file a Notice of Protest, in writing, prior to the date on which the offers are to be received, and shall file a formal written protest within ten (10) days after filing the Notice of protest pursuant to Florida Administrative Code Rule 40C-1.801. * * * Failure to timely file a notice of protest or failure to timely file a formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (SJRWMD Ex. 3). Both the Notice of Intention to Sell and the sales package require that sealed "offers for purchase" be submitted to the SJRWMD prior to 2:00 p.m. on December 4, 1998, the advertised time for opening of the offers. Nothing in the Notice or sales package reserves a right of first refusal for any person. Instead, both plainly state "no offer will be accepted after the date and hour specified for submittal of offers." (SJRWMD Exhibits 1 and 3) Although Petitioners did not see the newspaper notice, they had knowledge that the SJRWMD advertised the sale of the airstrip property through a competitive solicitation process in the newspaper. They had been clearly informed of need for the competitive process by Mr. Christianson at the October meeting and they were present when a pre-solicitation meeting/inspection took place at the airstrip in November prior to the offers being accepted by the SJRWMD. Intervenors requested a sales package from the SJRWMD on November 30, 1998, and December 2, 1998. Petitioners requested and received a sales package prior to the opening of the offers to purchase. The sales packages were not available to the public until December 2, 1998, the same day Petitioners received their package. Mr. Freeman told Petitioners they needed to submit their bid. Although the sales package stated that facsimile offers would not be accepted by the SJRWMD, Leonard Freeman informed Petitioners that they could fax their Offer to Purchase. The SJRWMD did accept a facsimile offer to purchase from Petitioners on December 4, 1998, at 1:07 p.m. Offers to purchase were opened by the SJRWMD at 2:10 p.m. on December 4, 1998. Petitioners submitted an offer to purchase the airstrip property for $275,000, where Petitioners would pay $1,500.00 per month for 60 months ($90,000 with $72,000 applied toward principal) with a balance of $203,000 cash to be paid at the end of the 60-month term. Intervenors submitted an offer to purchase the airstrip property for $310,000, where Intervenors would put 10 percent down ($31,000 earnest money deposit) at award of Agreement of Purchase and Sale and the balance of $279,000 cash would be paid at closing on or before May 1, 1999. Petitioners' offer to purchase was not the highest offer; it did not provide for cash at closing; and it did not meet the requirement of 10 percent to be paid upon notification. Staff recommended to the SJRWMD board that it award the purchase of the airstrip property to the highest offeror, Intervenors. The governing board approved staff's recommendation at its regularly scheduled meeting on December 9, 1998. On December 9, 1998, Petitioners filed a Notice of Protest. On December 18, 1998, Petitioners filed a copy of their Formal Bid Protest with the SJRWMD. Petitioners never grasped the implications of the competitive solicitation process until after the offers were opened and the award was made to Intervenors. Even if Petitioners had seen the newspaper notice and had received the sales package sooner, they still would not have protested because they understood that their "agreement" was outside of the process. That is, they mistakenly perceived that after the offers were in they could negotiate further to exceed the high offer. Chagrined, and genuinely regretful of the misunderstanding, Mr. Freeman had to tell Petitioners that further negotiations were foreclosed after the offers were opened. Mr. Freeman's earlier assurances to Petitioners were the result of an excess of bonhomie rather than any deception. He wanted them to have the airport and he wanted to work out the sale of surplus property. Petitioners were aware that he did not have the authority to bind his agency to an agreement. Mr. Freeman never specifically told Petitioners they had a right of first refusal; they wanted that advantage and surmised agreement from Mr. Freeman's and Mr. Christianson's vague counsel to not worry and that it would all be worked out. The SJRWMD devised a competitive process for disposition of the Zellwin airstrip that was consistent with its statute and with the direction of its governing board. Intervenors responded with an offer that met all the published requirements. Petitioners did not, and any culpability of SJRWMD's staff for Petitioners' misunderstanding is not so egregious as to require that the process begin again. Petitioners occupied the property, used it, and made improvements to enhance their use. This, however, was in reliance on their license to use the property and not on some certainty that they would ultimately be able to own the property. As Petitioners testified at hearing, they were disappointed that the SJRWMD decided to solicit competitive proposals; they knew that it was possible someone would offer more than they could match. (Harper, Transcript pages 117-120).
Recommendation Based on the foregoing, it is RECOMMENDED: that the SJRWMD enter its final order denying Petitioners' request to reject all bids and re-advertise the sale. DONE AND ENTERED this 24th day of June, 1999, in Tallahassee, Leon County, Florida. MARY 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 24th day of June, 1999. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post office Box 1429 Palatka, Florida 32178-1429 John W. Williams, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Clayton D. Simmons, Esquire Stenstrom, McIntosh, Colbert, Whigham And Simmons, P.A. Post Office Box 4848 Sanford, Florida 32772-4848 Stanley Dollen 1230 Kelso Boulevard Windermere, Florida 34786 Herbert Clark 5416 Trimble Park Road Mt. Dora, Florida 32757
Findings Of Fact In May, 1983, DOT advertised for bids to separately lease the 11 service stations on the Florida Turnpike. Prospective bidders were prequalified before being allowed to submit bids. Bids were to be awarded to the bidder submitting the highest responsible bid and based solely on the amount per gallon to be paid to DOT on each gallon of motor fuel sold at the service plaza. The existing leases were all due to expire and an attempt to get bids in 1982 had been dropped after litigation delayed completion of the bid process. Turnpike prices for motor fuels are regulated somewhat by DOT, in that the Turnpike prices must be comparable to prices at off-Turnpike stations in the vicinity which offer similar services. Those stations selected for comparative prices must be acceptable to the Turnpike station operator and DOT. Equipment at the existing service plazas has been in use for many years and in the bid offering in May, 1983, several new provisions were included, as were many provisions of the expiring leases. To insure competent and qualified service to motorists on the Turnpike, retained lease provisions require the stations to be open 24 hours per day, to provide wrecker service, and to have a mechanic on duty. Few off-Turnpike stations meet these requirements. Accordingly, "comparable" stations within SD miles east-west of the Turnpike and in the vicinity of a specific service plaza may not be readily available. The bid offering provided that these "comparable" stations will be selected by mutual agreement of the parties but makes no provision for settling a dispute between the lessor (DOT) and the lessee. This is significant because another of the lease provisions contained in the bid offering is that the prices at which the service plazas sell fuel must not exceed by more than two cents per gallon the prices at these selected comparable stations. New provisions in this bid offering required the successful bidder to replace all dispensing equipment (gas pumps) with modern equipment, and to provide for sale of motor fuels at self-service pumps. The bid offering contained no specifics as to where the self-service pumps are to be located with respect the existing service islands, whether self-service motor fuels are to be available by credit card or cash only sale, or whether there could be a different price for cash sales than for credit card sales. The bid offering provided that no one entity could be awarded the lease of more than five service stations on the Turnpike, and no bond was required to be posted by any bidder. DOT expected the successful high bidders to submit bids in the vicinity of eight cents per gallon. This was based on DOT's knowledge from surveys taken at frequent intervals over a long period of time, of the price motor fuels was selling bat comparable stations off the Turnpike; of the tank wagon costs of motor fuels to the station operators; of the sales of tires, batteries and accessories historically made by these stations, the profits from which are not included in the lease price; of the uncertainties inherent in the profits engendered by the to-be-offered self-service sales; other changes which increased the field of bidders; and the expected stability of motor fuel prices. When the bids were opened on September 12, 1953, the first, second, and third highest bids received for each of the 11 service plazas are as follows: Service Plaza First Second Third (Number) Highest Highest Highest Bid Bid Bid Snapper Creek (601) 13.51 12.34 5.40 Crocco, Inc. Gus Crocco William Crocco Pompano (611) 14.35 Crocco, Inc. 14.33 Gus Crocco 9.75 William Crocco Pompano (612) 14.33 Crocco, Inc. 12.76 Gus Crocco 9.20 Super Service West Palm Beach (623) 15.67 15.67 11.55 Gus Crocco Crocco, Inc. William Crocco West Palm Beach (624) 15.67 14.53 11.55 Gus Crocco Crocco, Inc. William Crocco Ft. Pierce (635) 15.67 14.83 13.90 Gus Crocco Crocco, Inc. Super Service Ft. Pierce (636) 15.67 14.53 12.40 Gus Crocco Crocco, Inc. WMG, Inc. Ft. Drum (647) 16.20 Super Service 15.67 Gus Crocco 14.53 Crocco, Inc. Canoe Creek (658) 15.67 Gus Crocco 14.90 Super Service 14.53 Crocco, Inc. Turkey Lake (669) 14.34 Gus Crocco 14.20 Super Service 13.43 Crocco, Inc. Okahumpka (670) 14.34 13.25 5.67 Crocco, Inc. Gus Crocco Gulf Oil Although Crocco, Inc., and Gus Crocco were the apparent high bidders for 10 of the 11 Turnpike service station leases, DOT, with only 20 days to award or reject bids, on October 3, 1983, issued a notice of intent to enter into leases with the high bidders. Before such leases could be executed, a petition to protest the award of these bids was filed by parities who are the intervenors herein, the case was referred to the Division of Administrative Hearings and was assigned DOAH Case No. 83-3539. Gus Crocco and William Crocco are brothers, are shareholders in Crocco, Inc., are shareholders in WMG, Inc., and have operated service stations on the Florida Turnpike for the past several years. All entities named in the above sentence submitted bids for Turnpike leases at this offering. Super Service General Partnership, the high bidder for the lease at Ft. Drum service plaza, is composed of a partnership consisting of Ralph Girvin and two other partners. Girvin prepared the bid submitted by Super Service General Partnership which, at 16.02 cents per gallon of motor fuel sold, was the highest bid submitted for any lease. Gus Crocco, Crocco, Inc., William Crocco, and WMG, Inc., submitted the three highest bids for five of the 11 service station leases. During discovery in preparation for the hearing in Case No. 83-3539, it was disclosed that Gus Crocco prepared the bids submitted by Gus Crocco and Crocco, Inc.; that no market survey was taken by Gus Crocco or Ralph Girvin before establishing the selling prices for motor fuels upon which their bids were predicated; that the profit per gallon of motor fuel assumed by Crocco included a rebate from the supplier of approximately six cents per gallon even though no rebate has ever been given at a Turnpike service station for more than a short period of time; the profits to be made per gallon did not take into consideration county taxes that are applicable to some of the service plazas; that existing prices at stations accepted as comparable in the past were much lower than the sale prices which Gus Crocco and Ralph Girvin used to arrive at a bid price; that absent a requirement for the posting of a bond the high bidder could withdraw his bid without financial penalty or liability; that some communication between the Crocco brothers had taken place before the bids were submitted; that Ralph Girvin hand attempted to contact Gus and William Crocco before submitting his bid; that the data upon which Gus Crocco, Crocco, Inc., and Super Service General Partnership based their bids was insufficient to account for all expenses to be incurred; and that there was a high probability that the service station could not provide adequate service to the motorists while paying the price bid for the leases and selling motor fuels at a price comparable to that charged by off-Turnpike stations in the vicinity. This information was passed to DOT. Sam Roddenberry, Turnpike engineer for DOT, is the individual primarily responsible for the operation of the Turnpike in accordance with policies established by DOT. He was the DOT employee primarily responsible for the provisions of the bid proposals and lease, for the award of the lease to the highest qualified bidder, and for the policy changes, including the sale of motor fuel at self-service pumps. After receiving information discovered during trial preparation for Case No. 83-3539, Roddenberry compared Gus Crocco's projected selling price of $1.239 per gallon of regular leaded self-service gasoline with the 1983 average price in Jacksonville of $1.0991; compared the Crocco price estimate for unleaded self-service gasoline of $1.349 per gallon with the Jacksonville price of $1.1789; and the Crocco price estimate of $1.3996 for self-service super unleaded with the Jacksonville price of $1.2997. A similar comparison was made with respect to Super Service General Partnership's bid. These comparisons, the close relationship between the three high bidders at all stations (except for Super Service) and his knowledge that rebates, when given, are good only for short periods of time, led Roddenberry to conclude that all bids should be rejected. On October 1, 1984, Chapter 84-276, Laws of Florida, became effective. This discontinued the high-bid system upon which the bids here involved were solicited and substituted therefor a request for proposal (RFP) system upon which the Department selects the applicant deemed best qualified to satisfy the statutory criteria established by this statute. On June 25, 1984, each of the high bidders was notified by DOT that Respondent intended to withdraw its notice of intent to award leases and that it intended to reject all bids. These bidders at the same time were advised of their right to a Chapter 120.57 hearing, and the petitions for hearing, here involved, followed.
Findings Of Fact Prior to July 10, 1984, Son-Mar Propane, Inc. (Son-Mar) was licensed by the Department as a dealer in liquefied petroleum gas, in appliances and in equipment for use of such gas and installation. Virgil Berdeaux was the president of Son-Mar and he and his wife were the sole stockholders. Virgil Berdeaux passed the competency exam which qualified Son-Mar for licensure. Sonny Wade Berdeaux Virgil Berdeaux's son, was the manager of Son-Mar. Son- Mar's business address and place of operation was 16034 U.S. Highway 19 North in Hudson, Florida. Virgil Berdeaux and his wife owned the property located at that address and leased it to Son-Mar. A propane pumping station and a building was located on the property at 16034 U.S. Highway 19. The building housed a pawn shop and supply store for mobile home and RV equipment. Son-Mar operated the pumping station and the stores. It also installed tanks and delivered gas to customers. 1/ On July 10, 1984, a final order was entered by the Department which ordered "[t]hat any and all of [Son-Mar's] licenses issued by the State Fire Marshal Division of Liquefied Petroleum Gas and eligibility to hold said licenses are hereby revoked." The revocation of Son-Mar's licenses was due to its violation of certain safety standards and rules. Specifically, it was found that an employee of Son-Mar, Mr. John Delham, filled a cylinder that had not been recertified, that he lay it horizontally in the customer's van, and that he failed to secure the tank in the van. While the van was still parked at Son-Mar an explosion occurred which destroyed the van and killed its occupant. On July 19, 1984, nine days after Son-Mar's licenses were revoked, Virgil Berdeaux submitted an application for licensure as a dealer in appliances and equipment for use of liquefied petroleum gas, listing the business address as 16034 U.S. Highway 19, Hudson, Florida, and listing the business name as Son- Mar Pawn Shop. On August 3, 1984, twenty-four days after the revocation of Son- Mar's licenses, Sonny Wade Berdeaux submitted an application for licensure as a dealer in liquefied petroleum gas, listing the business address as 16034 U.S. Highway 19, Hudson, Florida. The Department issues several different types of liquefied petroleum gas licenses. A Type 06, Class 02 license, known as a 602 license, is issued to a dealer in appliances and equipment for use of liquefied petroleum gas. The 602 license allows the holder to sell propane appliances and equipment, such as stoves, heaters, and gas grills but it does not permit the holder to install appliances or sell propane gas. A competency examination is not required for this type of license, and there is no inspection of the place of business prior to issuance of the license. Virgil Berdeaux applied for a 602 license. He completed the application and submitted the required fee. The application listed W. C. Johnson, Virgil Berdeaux's son-in-law, as the manager of the business. Bill Johnson had run the pawn shop for Son-Mar. Sonny Wade Berdeaux applied for a Type 06, Class 04 license known as 604 license, which is issued to a dealer in liquefied petroleum gas. This type of license permits the holder to pump liquefied petroleum gas for sale to the public. An applicant for this type of license must pass a competency test and file a surety bond or certificate of insurance. Further, if the licensee has a dispensing station, an inspection of the business location must be performed to ensure that it is in compliance with all safety regulations. Sonny Wade Berdeaux passed the competency examination, filed a certificate of insurance, and submitted the proper fee. Son-Mar held a Type 06, Class 01 license (a 601 license) as a dealer in liquefied petroleum gas, in appliances and in equipment for use of such gas and installation. A 601 license permits the holder to pump liquefied petroleum gas for sale to the public, to sell appliances and equipment for use of liquefied petroleum gas, and to install such appliances and equipment. In essence, it is a combination of a 602 license, a 604 license, and a license to install equipment. Both Sonny Wade Berdeaux and Virgil Berdeaux received letters dated October 8, 1984, which informed them that their applications for licensure had been denied. Both letters referred to the revocation of Son-Mar's licenses and pointed out that the applicants would be operating on the same premises and employing the same staff as Son-Mar. Both letters concluded as follows: Thus, it would appear that your application is seeking licensure for essentially the same entity that has only recently had its liquefied petroleum gas licenses revoked. Therefore, in the interest of public safety, this Bureau cannot permit an Order of Revocation to be obviated by a mere procedural reapplication in your name. The applications for licensure both list the business address as 16034 U.S. Highway 19 in Hudson, Florida. At the time of application Virgil Berdeaux owned that property and Sonny Wade Berdeaux had leased the pumping station. However, on July 1, 1985, the property at 16034 U.S. Highway 19 was sold. The pumping station was moved out along with the inventory that remained in the pawn shop. Neither Virgil Berdeaux or Sonny Wader Berdeaux retained any interest in the property, and at this time neither could operate a business at that location. Although there was testimony concerning the manner in which the business would have been operated and controlled had licensure been granted at the time of applications there was no testimony indicating where or how the business would now be operated. There was no attempt to amend either application to reflect a current business address, and the certificate of insurance entered into evidence lists 16034 U.S. Highway 19, Hudson, Florida, as the location covered. 2/
Recommendation Based on the foregoing findings of fact and conclusions of law; it is RECOMMENDED that a Final Order be entered denying petitioners' applications for licensure. DONE and ENTERED this 21st day of May, 1986, in Tallahassee, Florida. DIANE A. GRUBBS 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 21st day of May, 1986.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s request for dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to TT of Orlando, inc. d/b/a Maserati of Orlando to sell Maserati automobiles manufactured by Maserati (MASE) at 4225 Millenia Boulevard, Orlando, (Orange County), Florida 32839. Filed December 1, 2011 4:03 PM Division of Administrative Hearings DONE AND ORDERED this 36 day of November, 2011, in Tallahassee, Leon [s SandraC. Lambert, Director Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 County, Florida. Filed with the Clerk of the Division of Motorist Services this _20%l>day of November, 2011. NOTICE OF APPETITES =m" Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:jde Copies furnished: C. Everett Boyd, Esquire Nelson, Mullins, Riley and Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Robert Craig Spickard, Esquire Kurkin Forehand Brandes, LLP 900 North Calhoun Street, Suite 1B Tallahassee, Florida 32301 John F. Walsh, Esquire AMSI-Automotive Management Services, Inc. 505 South Flagler Drive, Suite 700 West Palm Beach, Florida 33401 Donald St. Denis, Esquire St. Denis and Davey 1300 Riverplace Boulevard, Suite 101 Jacksonville, Florida 32207 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue Whether the Proposed Amendment of Rule 7E-6.007, Florida Administrative Code, is arbitrary and capricious and thus constitutes an invalid exercise of delegated authority?
Findings Of Fact The Petitioner, Hialeah, Inc., operates a race track (hereinafter referred to as the "Track") located in Dade County, Florida. The Petitioner is licensed by the Respondent. In December, 1981, the Petitioner was granted permission by letter from Bob Smith, then Director of the Respondent, the Department of Business Regulation, Division of Pari-Mutuel Wagering, to operate Tel-A-Betting. Robert Rosenburg, Director of the Respondent after Mr. Smith, also approved Tel-A- Betting in a letter to the Petitioner. The Petitioner has continuously operated Tel-A-Betting for more than six years. The Petitioner instituted Tel-A-Betting in reliance on the Respondent's approval of Tel-A-Betting. If approval had not been granted to the Petitioner from the Respondent, the Petitioner would not have established Tel-A-Betting. Tel-A-Betting is a procedure for placing wagers on races at the Petitioner's Track. Persons utilizing this system (hereinafter referred to as "Account Holders"), open an account with the Petitioner by making a deposit of $100.00 or more with the Petitioner and paying a $25.00 fee. The funds deposited with the Petitioner are received and accounted for in accounts maintained at the Track. Once an account is opened, a plastic card which contains, among other information, an account number and an "800," toll-free, telephone number is issued to the Account Holder. Wagers may then be placed with the Petitioner by the Account Holder calling the "800" number and placing a wager with a telephone operator/pari-mutuel clerk located at the Track. The Account Holder identifies himself or herself by giving the operator the account number and a code name designated by the Account Holder when the account is opened. The account number is programmed into a computer to determine whether the Account Holder has sufficient funds in the account to make the wager. If the funds in the account are sufficient to cover the wager, the wager is entered into the computer. If the Account Holder wins the wager, the payoff is entered into his or her account. Calls to place wagers through the Tel-A-Betting program can be made from anywhere in Florida and the person making the call and wager need not be physically present at the Track to make the wager. Wagers taken through Tel-A-Betting are only made on races at the Track. Tel-A-Betting allows the Petitioner to receive wagered funds as part of its pari-mutuel pool from persons located anywhere in the State of Florida. When a wager is made through Tel-A-Betting, the operator/pari-mutuel clerk cannot establish the age or identity of the person placing the wager. The Petitioner is the only race track permit holder in the State of Florida which employs Tel-A-Betting. The Proposed Amendment of Rule 7E-6.007, Florida Administrative Code, if valid, will prohibit the Petitioner from continuing the use of Tel-A-Betting. The Respondent has not received any complaints about the use of Tel-A- Betting by minors or any other abuses. No evidence was presented that minors have made, or attempted to make, wagers through the use of Tel-A-Betting. The Respondent has not received any objections to Tel-A-Betting or complaints about unfair competition from other racetrack permit holders.
