The Issue The issues to be resolved in this proceeding concern whether the application form for authority to register as a money transmitter used by the Respondent and other alleged statements asserted by the Petitioner violates Section 120.535(1), Florida Statutes.
Findings Of Fact The Petitioner is an attorney, who represents clients who seek to engage in the business of funds transmitter, payment instrument issuer, foreign currency exchanger or check casher. The Petitioner is the attorney who represents such clients, rather than being one who seeks to become registered as a funds transmitter, etc. The clients of the Petitioner, who seek registration, are not parties to the Amended Petition. The Department is an agency of the State of Florida charged with the regulation of the money-transmitting industry, pursuant to the provisions of Sections 560.102 and 560.105, Florida Statutes. The provisions of Chapter 560, Florida Statutes, known as the "Money Transmitters Code", took effect on July 1, 1994. Section 560.204, Florida Statutes, provides, in part: No person shall engage for consideration, nor in any manner advertise that they engage, in the selling or issuing of payment instru- ments or in the activity of a funds trans- mitter, without first obtaining registration under the provisions of this part. * * * Section 560.303, Florida Statutes, provides, in part: No person shall engage in, or in any manner advertise engagement in, the business of cashing payment instruments or the exchanging of foreign currency without first registering under the provisions of this part. * * * On or about May 28, 1996, the Petitioner filed his Petition with the Division of Administrative Hearings alleging that certain "statements" of the Department violated Section 120.535, Florida Statutes. On June 12, 1996, the Department submitted for publication, in the June 28, 1996 issue of the Florida Administrative Weekly, a Notice of Proposed Rulemaking for the following rule: 3C-560.122 Application Procedure for Registration as a Funds Transmitter, Payment Instrument Issuer, Foreign Currency Exchanger, or Check Casher. Each person who seeks to obtain registration as a money transmitter, payment instrument issuer, foreign currency exchanger, or check casher, shall apply to the Depart- ment by submitting the following: a completed Application for Authority to Register as a Money Transmitter, Form DBF-C-94, effective , which is hereby incorporated by reference and avail- able by mail from the Department of Banking and Finance, Division of Banking, Room LL-22, The Capitol, Tallahassee, Florida 32399-0350; and a non-refundable application fee of $500 in the case of a funds transmitter or payment instrument issuer registration, or a non-refundable application fee of $250 in the case of a foreign currency exchanger or check casher. Request for Additional Information. Any request for additional information will be made by the Department within thirty (30) days after receipt of the application by the Department. The additional information must be received by the Department within forty- five (45) days from the date of the request. Failure to respond to the request within forty-five (45) days from the date of request shall be construed by the Department as grounds for denial for failure to complete the application, and the application shall be denied pursuant to s. 120.60(2), F.S. Amendment of Application. (a) An applicant may amend the application as to those factors generally within the control or selection of the applicant once, as a matter of course, at any time within thirty (30) days from the Department's receipt for filing. Otherwise, the appli- cation may be amended only with prior written permission from the Department. Requests to make changes which are material to the appli- cation or to the Department's evaluation of the application filed at any time after the application has been received may be deemed by the Department to be grounds for denial, and a new application, accompanied by the appropriate filing fee, may be required. Withdrawal of Application. An appli- cant may request withdrawal of an application prior to a determination of the application being made by the Department by submitting a written request that the application be withdrawn. Refunds. If the application is with- drawn or denied, the application fee is non- refundable. Upon approval of an application, a registration will be sent by the Department to the applicant's mailing address as indicated on the application. Specific Authority 560.105(3), 120.53(1)(b) FS. Law Implemented 560.204, 560.205, 560.206, 560.303, 560.306 FS. History - New . On July 29, 1996, the Department filed the above rule and Application form for adoption with the Department for State and it took effect on August 18, 1996. The Department, accordingly, has used the rule-making procedure expeditiously and in good faith to adopt a rule which addresses the statements with which the Petitioner is concerned. The Petitioner has asserted in his Amended Petition that he is "substantially affected by the statement as [he has] clients who are threatened with criminal prosecution pursuant to 18 U.S.C. Section 1960 for not having a license required by Chapter 560." The Petitioner additionally claims that "as legal counsel to these clients, [he is] unable to provide competent legal advice regarding the application of Chapter 560." The Petitioner, however, has provided no evidence that he, as opposed to his unidentified clients, will suffer any injury as a result of the alleged statement or rule. The "immediate" injury allegedly amounts to the threat of criminal prosecution of the Petitioner's unidentified clients under 18 U.S.C. Section 1960 for not having a license required by the above-referenced Florida Statutes and not by the alleged generally-applicable statement or "rule". The Petitioner has not presented any evidence that any alleged injury on the part of either his unidentified clients or himself is within the zone of interest protected by Chapter 560, Florida Statutes. The zone of interest, which could be discerned from that statute's provisions, does not provide for protection of a lawyer's ability to provide competent legal advice to clients concerning such a statute's applicability to their interests. If a statute is unclear or policies or rules practiced or promulgated in furtherance of that statutory charge by an agency are unclear, a lawyer, in advising and litigating on behalf of his clients, has recourse to the courts or to the administrative adjudicatory process. However, it is their interests he would seek to protect in such situations and not his own as a lawyer. The Petitioner, the attorney for unidentified clients allegedly affected, has not, in his Amended Petition, identified those clients, as parties or otherwise, nor the immediate injury they will allegedly suffer nor asserted or established with proof how they are "substantially affected". It is necessary that that be done to enable such clients to bring this challenge as petitioners in their own right. In any event, the Petitioner, as counsel for those clients, has no standing since he is not a substantially-affected person who is in danger of suffering an "immediate injury" in his own right, which would arise within the ambit of the "zone of interest" protected by Chapter 560, Florida Statutes. The Petitioner is simply not the proper "substantially-affected person" to bring this challenge.
Findings Of Fact Sworn testimony was presented on behalf of the Department by Bronson Monteith, an Aviation Specialist employed by the Department. Mr. Monteith testified as to the application process, the document received by the Department (DOT Exhibit No. 1) and his analysis and conclusions regarding the application. According to Mr. Monteith's testimony, the application was complete and met all Department requirements for issuance of site approval. An application for site certification was filed with the Department on February 19, 1990 (DOT Exhibit No. 1, page 1). The application was revised to "ultralight private" on March 3, 1990 (DOT Exhibit No. 1, page 7). A landing area proposal was filed with the Federal Aviation Administration on February 19, 1990 by Mr. Sarra (DOT Exhibit No. 1, page 13). FAA approval of the application was issued April 10, 1990 and contained the following finding: the subject airport will not adversely affect the safe and efficient use of airspace by air craft provided the landing area is limited to private use. (DOT Exhibit No. 1, page 15) The FAA approval also stated: In making this determination, the FAA has considered matters such as the effects the proposal would have on existing or planned traffic patterns of neighboring airports or heliports, the effect it would have on the existing airspace structure and projects or programs of the FAA, the effects it would have on the safety of persons and property on the ground, and the effect that existing or proposed manmade objects (on file with the FAA) and known natural objects within the affected areas would have on the airport proposal. (DOT Exhibit No. 1, page 15) Conditional Use Permit No. 89/4/5/2 was issued for the construction and operation of an airport at the proposed site by the County Commission of Lake County on August 10, 1989 (DOT Exhibit No. 1, Page 20). The property in question is owned by Romar Agricultural Development Corporation, which is owned by Mr. Sarra (DOT Exhibit No. 1, page 26). The site was inspected and certified by Mr. Monteith as suitable for a private ultralight airpark site under Chapter 14-60 on August 21, 1990 (DOT Exhibit No. 1, page 30-33). Mr. Monteith conferred with the FAA and pilots at a nearby glider port and determined that the application should sign an agreement governing the operation of the proposed airport to ensure that safe air traffic patterns can be maintained (DOT Exhibit No. 1, page 34). The agreement was signed by the applicant (DOT Exhibit No. 1, page 36). During the hearing, Mr. Uchitel's attorney proposed that an additional condition be placed on site approval: that the applicant indemnify nearby landowners for all injury and liability associated with the operation of the airport and post a bond or other guarantee to support the indemnification. The rationale for this condition was that ultralight aircraft were not as well- regulated as other aircraft and posed a particular danger to nearby landowners. Mr. Uchitel's counsel expressed Mr. Uchitel's concern that the local zoning may have been obtained without due notice to him. The FAA regulations for operation of ultralight aircraft were introduced. These regulations prohibit flight below 1500 feet except when landing and taking off. The sketch accompanying the application reveals that the proposed airport will have a grass runway 500 feet wide and 1500 feet long, running north and south. A diagram of the proposed airstrip shows that the first 500 feet of the north and south ends of the airport are for approaching the primary landing zone. Ultralight aircraft landing at the airport would commence their descent flying parallel to the airstrip, make a 90 degree turn towards the airstrip at the end of the approach area, fly toward the airstrip centerline and execute another 90 degree turn towards the landing zone. Because of the flight characteristics of ultralights, their descent from their approach altitude of 1500 feet generally would be over the airport itself. The aircraft's flight over the property of adjoining property owners would be at the required minimum altitude of 1500 feet. Although ultralight aircraft are licensed in a manner similar to experimental aircraft, and are not subject to all of the inspections which certified non-experimental aircraft must have, they are generally flown by their owner-builders, who want to avoid any accidents for obvious reasons. Further, these aircraft, as their classification indicates, are very light, kite like aircraft with light aluminum bracing. It is inconceivable that one would cause major damage to property on the ground if it did crash. Power plants for these aircraft are typically small engines similar to those used in snow mobiles. Although they are noisy, they do not generate as much noise as standards aircraft engines. Flying at their assigned altitudes, they will not be a major source of noise for adjoining property owners.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a Final Order be entered granting site approval for the proposed airport, under the terms and conditions provided in Site Approval Order No. 91- 36. DONE and ENTERED this 20th day of July, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 this day of July, 1992. COPIES FURNISHED: Ben G. Watts, Secretary ATTN: Eleanor F. Turner Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Jeffrey J. Pardo, Esquire 8323 N.W. 12th Street Miami, FL 33126 Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 .
Conclusions Having considered the MEDIATED STIPULATION, attached hereto as Attachment 1, the City of Tallahassee Planning Commission hereby adopts the MEDIATED STIPULATION as its Final Order in this matter and hereby approves Southeastern Tower Associates, Inc.’s Revised Type B Site Plan Application as set forth in the MEDIATED STIPULATION. th DONE AND ORDERED this _/2” day of August, 2009. Maribel Nicholson-Choice, Chairperson Tallahassee-Leon County Planning Commission , City Hall 300 South Adams Street Tallahassee, Florida 32301-1731 CERTIFICATE OF FILING AND CERTIFICATE OF SERVICE I hereby certify that this Final Order was filed jn the Office of the Clerk of the Planning Commission and that a copy was sent this (3 day of August, 2009; and a copy has been furnished by U. S. Mail to Linda Hudson, Assistant City Attorney, City Attorney's Office, City Hall, 300 S. Adams Street, Tallahassee, Florida, 32301; and D. Kent Safriet, Esq., Hopping, Green & Sams, P. O. Box 6526, Tallahassee, Florida, 32314, this Be day of August, 2009. Russell Snyde Planning Commission Clerk Tallahassee - Leon County Planning Commission City Hall 300 S. Adams Street Tallahassee, Florida 32301-1731 TLPC\Kaufman Final Order ATTACHMENT 1 STATE OF FLORIDA . DIVISION OF ADMINISTRATIVE HEARINGS. IT AD ROGER and JAN KAUFMAN, JOHN T. and JAN GARDNER, and WILLIAM B. GRAHAM, Petitioners, “vs. DOAH Case No. 09-1342 : Planning Comm’n Case No. TSP080075 CITY OF TALLAHASSEE and SOUTHEASTERN TOWER ASSOCIATES, INC., Respondents. / MEDIATED STIPULATION Pursuant to Section 2-138, Tallahassee Land Development Code (LDC), by and through undersigned counsel, Petitioners and Respondent, Southeastern Tower Associates, Inc., attended an informal mediation session. As a result of the mediation, the parties were able to settle their dispute as follows:
The Issue The issue presented is whether TRI should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act (FEAJA), Section 57.111(4)(a), Florida Statutes.
Findings Of Fact During the Spring of 2000, the Department developed an ITB, including specifications, for video teleconferencing equipment and video bridging equipment for all State of Florida agencies and other eligible users. The ITB was a revision of the existing contract held by TRI. During the ITB/specifications review process, a new condition was added to require vendors to give a percentage discount from a manufacturer's product list price to assist users in getting more choices and complete systems. On May 9, 2000, the Department advertised ITB 33-840- 980-E actively soliciting bids. The stated "purpose of this bid [was] to establish a 12-month contract for the purchase of Video Teleconferencing Equipment & Video Bridging Equipment by all State of Florida agencies and other eligible users " The staff of the Department drafted the specifications and intended that each vendor offer a complete line of a manufacturer's video teleconferencing equipment and systems, which might be included under these categories. No specific manufacturer was required. The Department's Mr. Steve Welsh knew that state agencies have differing needs for video teleconferencing equipment and systems to communicate more effectively. Importantly, it was his intent to draft flexible and wide-open specifications to meet the various needs of the agencies. It was equally important, from the Department's standpoint, that each vendor offer a complete line of the manufacturer's products with an appropriate discount. In this manner, the Department could compare each vendor's manufacturer's price list and then apply the vendor's discount in order to appropriately compare their bids. Four vendors, including TRI and FREBON, submitted bids offering discounts for the Tandberg line of video teleconferencing equipment. Each vendor offered different discounts for the Tandberg line of products offered in each bid. However, TRI submitted a one-page price list for Tandberg video teleconferencing systems. Global Communications Technologies, Inc. offered a discount for eight (8) pages of Tandberg products. Digital Video Systems, a Division of NuPhase Electronics, provided multiple discounts for twelve (12) pages of Tandberg products and FREBON offered a discount for twenty- two (22) pages of Tandberg products. Ultimately, the Department chose FREBON as the only responsive bidder to have submitted a discount for the complete line of Tandberg products. The Department justified the intended award of the contract to FREBON as a "single bid negotiated." Notwithstanding the resolution of this matter as set forth in the Recommended and Final Orders, the undersigned finds that the Department, in drafting the ITB and specifications, was well intentioned and attempted to deal with a highly technical subject in a professional manner. If the ITB and specifications were ambiguous, the vendors had the opportunity to timely request clarification. Yet, no vendor challenged the specifications nor timely sought clarification. See, e.g.(RO, FOF 16 and 17). Although the Department expressed its intent during the final hearing regarding the scope of the ITB, that intent was not clearly articulated in the ITB. There is a fair inference that the four vendors must have been confused because each submitted what they necessarily believed was a discount for the complete price list for the Tandberg products.1 The evidence showed that only FREBON offered the complete Tandberg line of products although, in retrospect, FREBON's price list included products which were not required to be offered at a discount by the ITB. As of the posting of the initial bid tabulation, there was a legitimate dispute regarding whether any vendor, including TRI, submitted the complete line of Tandberg products within the meaning of the ITB. It was clear, however, that each vendor, offering Tandberg products, was required to offer a percentage discount for the complete line of Tandberg video teleconferencing equipment. The problem was, which Tandberg systems, equipment, or products? See (RO, FOF 62-64). The protest could not be definitively resolved until representatives of the parties and Tandberg explained, during the final hearing, the various components of the Tandberg product line within the meaning of the ITB. Mr. Richard Grace, of Tandberg, explained that TRI's one-page price list included all of the video teleconferencing systems manufactured and sold by Tandberg which included only desktop, set-top, and room systems manufactured by Tandberg, the only systems required to be offered for a discount pursuant to the ITB. (RO, FOF 33-42, 63). However, TRI was the only vendor offering a discount for one page of Tandberg products. The Department, at the time of the initial posting of the bid tabulation, reasonably determined that the TRI's one-page submission was not the complete Tandberg line, given the Department's interpretation of the ITB. Based upon the foregoing, although the ultimate resolution of the bid protest by the Department was contrary to the Department's initial position, the Department's action, to initially reject TRI's bid as non-responsive, was "substantially justified." Nevertheless, the Department suggests that TRI was not a prevailing small business party pursuant to Section 57.111, Florida Statutes. The ultimate issues presented in the bid protest were whether the Department's intent to award the contract to FREBON, and to reject the bid offered by TRI, was contrary to the Department's governing statutes, rules, policies, or the ITB and, further, whether the Department's proposed action was clearly erroneous, contrary to competition, arbitrary, or capricious. See (RO, Statement of the Issues, page 2). As a matter of fact and law, TRI prevailed in its bid protest pursuant to the Final Order because TRI's bid was found to be responsive, and the Department did not award the contract to FREBON. See n. 1. In its Final Order, the Department chose to award the contract to TRI, or, in the alternative, to re-bid the contract. The Department advises that it has elected to re-bid the contract, part of the relief requested by TRI. See n. 1. In any event, TRI prevailed in the bid dispute because the contract was not awarded to FREBON as a direct result of TRI's successful bid protest. Stated differently, the Final Order was in TRI's "favor." Therefore, TRI is a "prevailing small business party."2 The bid protest process was "initiated" by the Department when the initial bid tabulation was posted. The Department concedes the reasonableness of the fees and costs requested by TRI, which, by statute, may not exceed $15,000. The Department also admits that TRI is a small business party within the meaning of Section 57.111, Florida Statutes. The Department also admits that it was not a nominal party.
Findings Of Fact In 1985, the Florida Legislature created a state satellite telecommunications network, and directed the Department to develop an implementing plan and coordinate this network, including purchasing the equipment and installing the system. This system would be for educational purposes and business teleconferencing, and would consist primarily of satellite receiving stations at 28 existing educational institutions throughout the state. The Department drafted the technical specifications for the equipment to be utilized in the system in consultation with a generally recognized expert in the field of telecommunications. When these specifications were finalized, the Department issued an Invitation to Bid on February 14, 1986. Subsequently, the Department modified the original bid specifications by relaxing some of the requirements, in order to increase the number of vendors capable of providing the equipment. An addendum was issued on March 5, 1986, and another was issued on March 17, 1986. Satellite was on the bidder list and it received a copy of the initial Invitation to Bid, but it did not submit a bid in response to either the initial invitation or to the March 5 addendum. Satellite did, however, compile its bid and submitted it in response to the March 17, 1986, addendum. In all, six companies submitted bids to the Department, including Microdyne whose bid was accepted. Satellite's bid and three others were rejected, and one bid was disqualified because it was not signed. The amount of the Microdyne bid was $569,509. Although the amount of the Satellite bid was $372,550, the Department rejected it because it was not in compliance with the Invitation to Bid and the specifications as amended by the addenda. Section 2.8 of the bid specifications requires that the award be given to the lowest bidder meeting specifications. The Satellite bid was rejected for the following reasons: The survival wind speed of the 5.0 meter dish offered by Satellite was 105 miles per hour. Section 4.4.2 of the bid specifications requires survival at 125 miles per hour. No operational wind speeds were specified by the Satellite bid, as required by Section 4.4.2 of the bid specifications. The ku band feed cross-polarization rejection that was offered by the Satellite bid was 25 decibels. Section 4.4.4 of the bid specifications requires 30 decibels. The receiver specified by the Satellite bid did not include a one- half transponder mode. Sections 4.5.2 and 4.6.1 of the bid specifications require one-half transponder reception on the ku band. The bid submitted by Satellite did not comply with the requirements of the bid specifications for the reasons described in the previous paragraph. The Microdyne bid was in substantial compliance with these specifications. The requirements as specified by the Department which Satellite's bid did not comply with are substantial and material requirements for the system proposed by the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the protest of Satellite Television Engineering, Inc., to Bid No. 85-54 be DISMISSED. This Recommended Order entered this 11th day of August, 1986 in Tallahassee, Florida. WILLIAM B. THOMAS 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 August, 1986. COPIES FURNISHED: Mr. Richard A. Lotspeich Post Office Box 271 Tallahassee, Florida 32302 Joseph L. Shields, Esquire Knott Building Tallahassee, Florida 32301 Paul Watson Lambert, Esquire J. Riley Davis, Esquire Post Office Box 11189 Tallahassee, Florida 32302 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301
The Issue Whether the Department acted arbitrarily and capriciously in giving notice of its intended award of a contract for the purchase of optical character reading equipment to Scan Optics?
Findings Of Fact The Department is the state agency charged with the administration of Florida's unemployment compensation insurance program. The Department's Bureau of Claims and Benefits (hereinafter referred to as the "Bureau") is responsible for receiving claims for unemployment insurance benefits and for the disbursement of unemployment insurance payments. In processing and paying claims for unemployment insurance benefits, the Bureau must work with the Comptroller, who issues the payment checks. The Comptroller's office has been issuing checks on IBM punch cards. The Bureau has also been using IBM punch cards in processing unemployment insurance claims so that the punch cards could be collated with the IBM punch card checks issued by the Comptroller. In early 1984, the Bureau was informed that IBM card stock would no longer be printed. In early 1985, the Bureau was informed by the Comptroller's office that the Comptroller was going to begin to use paper warrants for the payment of benefits instead of IBM cards. As a result of this change, the Department is no longer able to use checks issued by the Comptroller to collate with its IBM punch cards. Because of the switch to paper warrants by the Comptroller, the Department began in 1985 to look at other technologies capable of efficiently working with paper warrants. The Bureau formed a committee to explore alternatives. That committee researched alternatives and visited other states to determine how other states were processing claims. The Department decided to purchase an optical character reader (hereinafter referred to as an OCR), for use in processing unemployment compensation claims. An OCR is a device which reads printed or handwritten characters. It scans a document, reads characters by comparing them to a mask or template and reads and records the data. The Department plans to use the OCR to read and record data from certifications for unemployment compensation insurance benefits. The data recorded will be transferred to the Department's mainframe IBM computer for use in processing by an automated benefits system. The Petitioner and Scan Optics are manufacturers of OCR equipment. Scan Optics has been manufacturing OCR equipment for 20 years. The Department requested a list of vendors from the Division of Purchasing and received a list of 167 potential vendors. On July 14, 1986, the Department issued a Request for Proposals (hereinafter referred to as the "RFP"), seeking competitive bids for the purchase by the Department of an OCR. All 167 potential vendors were notified of the RFP by the Department. Approximately 25 of the potential vendors requested a copy of the RFP. Only the Petitioner and Scan Optics submitted proposals in response to the RFP. A 6 member committee appointed by the Department prepared the RFP. Three members of the committee were employees of the Bureau and three members were employees of the Department's Bureau of Computer Data Systems. A request for proposal is a solicitation by an agency of offers from potential vendors to provide a needed commodity or service. It is different from a bid where the agency simply identifies the product it wishes to purchase and chooses the vendor offering the product at the lowest cost. The RFP set forth the Department's functional requirements and asked vendors to respond in any manner which they believed would meet those requirements. In the RFP, the Department stated the requirements which vendors were required to meet, evaluation criteria and the weight to be given to those criteria. It was also provided that responses would be verified by documentation and demonstration in a benchmark test. In the RFP, vendors were informed that if they disputed the reasonableness, necessity, or competitiveness of the RFP they must file a protest in accordance with Section 120.53(5), Florida Statutes. Paragraph 8 of the General Conditions. Vendors were also informed that any questions concerning the conditions and specifications of the RFP had to be submitted in writing to the Department no later than 10 days prior to the proposal opening and that "[n]o interpretation shall be considered binding unless provided in writing by the State of Florida in response to request in full compliance with this provision." Paragraph 5 of the General Conditions. Section 1.07 of the RFP instructed vendors to examine the RFP to determine if the requirements were clearly stated. Section 1.10 of the RFP provided that only written and signed vendor communications would be considered and that only written communications from the purchasing off ice would be considered authoritative. The Petitioner did not file a protest of the terms of the RFP pursuant to Section 120.53(5), Florida Statutes. Section 1.03 of the RFP provided for a vendors conference at which the contents of the RFP and any written inquiries from the vendors could be discussed. The Petitioner and Scan Optics submitted written questions to the Department. The vendors' conference was scheduled and conducted on July 30, 1986. Representatives of the Petitioner and Scan Optics attended the vendors' conference. The questions submitted by the Petitioner and Scan Optics were discussed. At the commencement of the vendors' conference, the Department's representative cautioned all present that statements made during the conference would not modify the RFP. This representation was heard and understood by the Petitioner's representative at the vendors' conference. Subsequent to the vendors' conference, the Department issued amendments to the RFP. The cover letter dated August 7, 1986, conveying the amendments to the Petitioner stated that any questions about the amendments had to be received in writing in the Office of Purchasing no later than 5:00 p.m., August 12, 1986. Draft samples of claims' certification forms and paper stock described in Section 3.01.18 of the RFP were also sent to the Petitioner and Scan Optics. The Petitioner did not submit any additional questions about the RFP or the amendments before 5:00 p.m., August 12, 1986. The Department proposed to accept Scan Optics' proposal and purchase the OCR from Scan Optics. The Petitioner brought this administrative action challenging the Department's proposed action. Chapter I of the RFP contains administrative and general information. Chapter II of the RFP contains a description of the Department's current system, a list of proposed OCR applications and the objective of the Department. Chapter III of the RFP sets out the technical requirements. Mandatory requirements and desirable requirements are provided. The terms "mandatory requirement" are defined in Section 1.17.ao of the RFP as follows: "Mandatory Requirement" shall be defined as a requirement the vendor must meet for the proposal to be considered responsive, failure to meet a mandatory requirement will cause the proposal to be rejected. The terms desirable requirement" are defined in Section 1.17.ak of the RFP as follows: "Desirable Requirement" shall be defined as a function, feature, or service the State considers necessary for optimal application flexibility, ease of system operation, or system reliability. Failure to meet a desirable requirement will result in a lower technical evaluation. The technical requirements set out the specifications which the Department had determined must (mandatory) or should (desirable) be met in order for an OCR to fulfill the Department's objectives. Chapter IV of the RFP provides the evaluation process the Department was to follow in determining which proposal to accept. The evaluation process was to include the awarding of points for compliance with the technical requirements. The RFP also included provisions designed to ensure that the representations of a vendor in a proposal would be fulfilled, including a benchmark test to verify certain representations of a vendor and acceptance testing after the equipment was purchased and installed. The general objective of the Department was provided in Section 2.04 of the RFP: The State wishes to procure an Optical Character Reading System with related soft- ware capable of meeting the requirements for the reading of UI benefit certifications and other UI applications that are feasible. The Optical Character Reading System will consist of a [sic] Optical Character Reader (OCR) and Correction System. The complete System will be bought from a single vendor. Section 1.17.ap of the RFP defines "objective" as: A statement describing generally the system to be procured. Any proposed system not meeting the objective will be rejected. Although Section 2.03.3 of the RFP provides that processing of quarterly wage reports is a major application, the RFP does not require that the proposed OCR equipment must be capable of this application. The only requirement is that the objective" be met. The reference to "other UI applications that are feasible" in the objective was intended to refer to future applications of the OCR which the Department only wanted to be aware of. There was no requirement that proposed OCR's be capable of other applications. The RFP made it clear that proposals would be based on the technical requirements of Chapter III of the RFP and would be evaluated pursuant to Chapter IV of the RFP. When these chapters and the "objective" are considered it is clear that the Department was proposing to purchase an OCR to perform the task of reading unemployment insurance claims forms and not wage reports. The responses to the RFP submitted by the Petitioner and Scan Optics were evaluated by the committee established by the Department to prepare the RFP. The committee determined whether the vendors met the mandatory requirements of the RFP and allocated points for mandatory and desirable requirements based upon the vendors' responses. The committee's evaluation consisted of 3 stages as required by the RFP. First, the committee evaluated and scored the vendors' technical responses. Each vendor was awarded points for their responses to the mandatory and desirable requirements as provided in the RFP. The committee fairly and reasonably applied the scoring system. Secondly, the committee evaluated and scored the vendors' cost responses as provided in the RFP. Finally, each vendor's scores were added. The vendor with the highest score was then given an opportunity to subject its proposed system to a benchmark test. The RFP provided that only the vendor with the highest points from the first 2 stages of the evaluation would be subjected to the benchmark test. The benchmark test was used by the Department to verify some of the statements in the highest scoring vendor's response, including some responses which the committee had some questions about during the evaluation. Based upon the committee's evaluation, Scan Optics was selected as the highest scoring vendor and its proposed system was subjected to the benchmark test. The benchmark test is provided for in Chapter X of the RFP. If Scan Optics' system had failed the benchmark test with regard to a mandatory requirement, its proposal would have been rejected. If it had failed to fulfill a desirable requirement, its response would have been rescored. The benchmark test was designed to give some assurances that a vendor's claims were correct. The test gave the committee confidence that the vendor was providing accurate information. Scan Optics' system successfully completed the benchmark test. During the first two stages of the evaluation, the committee looked at each vendor's total response, read all of the documentation submitted by the vendors and did all the research it could without actually having the system itself to evaluate. Not every response of the vendor was verified with absolute certainty. It was necessary for the Department to exercise judgment and discretion in determining whether responses were responsive to the RFP. Each response was evaluated as a whole and relevant information contained in one response was considered in evaluating other responses. Both vendors' responses were reviewed carefully. Both vendors provided responses which were not as thorough as the committee desired. The committee exercised its discretion in those instances and reviewed all documentation and the complete response to determine if sufficient information had been provided to conclude that a response was acceptable. Clarification or explanation of some responses was requested by the committee from both vendors. The manner in which mandatory responses were to be evaluated is provided in Section 1.06 of the RFP: The State has established certain requirements with respect to Request for Proposals to be submitted by vendors. The use of "shall", must" or "will" (except to indicate simple futurity) in this Request indicates a require- ment or condition from which a material deviation may not be waived by the State. A deviation is material if the deficient response is not in substantial accord with this Request for Proposal requirements [sic] provides an advantage to one vendor over other vendors, has a potentially significant effect on the quantity or quality or items proposed, or on the cost to the State. Material deviations cannot be waived. Determining whether a deviation was material required the Department to use discretion. The RFP does not require rejection of a proposal if a desirable requirement was not met. Section 1.06 of the RFP provides the following with regard to desirable requirements: The words "should" or "may" in this Request for Proposal indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a proposal. In determining whether a mandatory requirement was met, the committee determined if a vendor's response indicated that the requirement could be met. If there was any question about the vendor's response, the committee then evaluated the response to determine if the response was sufficient to justify rejecting the entire proposal. This is a reasonable approach. The Department, through its committee, exercised its discretion fairly and equitably in reviewing each vendor's response. Scan Optics proposed a 442 system in response to the RFP. A 4542 system consists of two primary hardware component: a 4500 editing system and a 542 optical scanner. Section 3.01.1 of the RFP provides the following mandatory requirement The Vendor must supply documentation indicating the proposed System's capabilities to meet each mandatory and desirable item listed in this RFP. The documentation must refer to the section and item number it applies to in this RFP. There is no requirement in the RFP that the documentation provided by a vendor be listed. Scan Optics provided a great deal of documentation with its response. The Department reasonably concluded that the documentation provided met the requirement of Section 3.01.1 of the RFP. A list of most of Scan Optics' documentation was provided with its response. In addition to the documentation listed, Scan Optics provided a Model 542 Product Guide and a Model 533/542 Operator's Manual. Scan Optics' Models 530 and 540 optical scanners are very similar to their Model 542. The designation 540 refers to a family of optical scanners which includes the Model 542. Most of the information concerning the operation and capacity of the 540 also applies to the 542. Differences are due to greater capacity and speed of the 542 and internal differences. All of the documentation supplied by Scan Optics was considered by the committee in its evaluation and was determined to satisfy the requirement of Section 3.01.1 of the RFP. The committee talked with representatives of Scan Optics to determine whether documents pertaining to Model 530/540 supplied to the Department were relevant. The Department was informed that the Model 542 was a member of the same family of models and the information provided in the Model 530/540 documents was also applicable to the Model 542. Manufacturers of computer equipment have constantly evolving families of models with a number of similarities. The use of manuals and guides which apply to a family line is a common practice. The committee reasonably accepted the Model 530/540 documents as documentation supporting the Model 542 proposed. Section 3.01.10.f of the RFP initially required that vendors show how the Initial System could be upgraded to meet a number of requirements, including the " [a]bility to read 700 different fonts including handprint in a multifont mode." The Petitioner submitted a written question which was discussed at the vendors' conference concerning the use of the term "fonts." There are not 700 fonts in the English language. An OCR is capable of scanning written documents and reading and recording the data contained thereon. Each particular design or style of a1phabetic (A to Z, in upper and lower case) and numeric (0 to 9) characters typed or written is called a font. Each style, or font, is unique and different from other styles. Characters are recognized and read by an OCR by templates or masks. Templates or masks determine an OCR's ability to read a particular character of different fonts. To read all the characters of one font, 36 masks or templates are needed. A single mask or template can read the same character, such as the letter "A" in more than one font. The question raised by the Petitioner was discussed at the vendors' conference and resulted in a written amendment to the mandatory requirement of Section 3.01.10.f. Section 3. 01.l0.f of the RFP, as amended, required that the Initial System be upgradeable to include the " [a]bility to read 700 different fonts/masks/templates, plus alpha numeric hand print." The Department and the vendors realized that Section 3. 01.10.f of the RFP, as amended, required that the ability to read 700 templates or masks, and not 700 fonts, was what was required. The Petitioner did not submit any questions concerning the amendment to Section 3.01.10.f of the RFP. The Petitioner's representative at the vendors' conference indicated that he understood the amendment and that the amendment eliminated the confusion created by the original requirement concerning "700 fonts." No statements were made by representatives of the Department during the vendors' conference concerning the requirement of Section 3.O1.10.f of the RFP, as amended. A statement concerning proposing a "maximum capability machine" was directed only to the Petitioner. The Department was aware that the Petitioner's maximum capability machine with regard to templates or masks was a machine with 720 templates. Therefore, the Petitioner was told that if it bid its maximum capability machine it would meet the requirement of Section 3.01.10.f of the RFP, as amended. This discussion was directed only at the Petitioner and was in response to the Petitioner's question, submitted in writing, about the requirement of Section 3.01.10.f of the RFP before it was amended. Section 3.01.10 of the RFP contains 7 subparagraphs labeled "a" through "g". Scan Optics' response to Section 3.01.10 of the RFP contained only 5 subparagraphs labeled "a" through "e". The responses of Scan Optics did not correspond to the subparagraphs of Section 3.01.10 of the RFP. There was no requirement that they do so. One of the subparagraphs for which there was no labeled response from Scan Optics, Section 3.01.10.f of the RFP, pertains to upgrading the Initial System to read 700 templates. Scan Optics proposed a system which already contained 768 templates. There was therefore no requirement to explain how the system could be upgraded. The other subparagraph for which there was no labeled response from Scan Optics, Section 3.01.10.g of the RFP, pertains to upgrading the Initial System to include "necessary system CPU's and controllers." Scan Optics' response to Section 3.01.10 of the RFP, when considered with other responses and the documentation provided, indicated that the Initial System would meet this provision. The Department reasonably determined that the response of Scan Optics to Section 3.01.10 of the RFP adequately explained how its system could be upgraded. Section 3.01.13 of the RFP contains the following mandatory requirement: The OCR must capture and store data on a 9-Track, 1600 and/or 6250 BPI EBCDIC Tape compatible with the equipment in use at the Caldwell Data Center at the State's Central Office in Tallahassee. Each tape drive in the proposed system must be usable for both output and input operations. The requirement of Section 3.01.13 of the RFP was amended to add the following sentence: The drives in use in the Data Caldwell Center [sic] are IBM 3420 Dual Density (1600 6250 BPI) with odd parity. In its response Scan Optics quoted the requirement without the amendment and then provided the following answer: The Scan-Optics Tape Drive provided is an operator selectable 1600 or 6250 BPI EBCDIC drive compatible with IBM equipment including the equipment in use at the Caldwell Data Center, and is capable of output or input. Although Scan Optics did not quote the requirement with the amendment, the amendment was included elsewhere in its response and Scan Optics' representatives were aware of the amendment. Even though Scan Optics did not correctly quote the requirement as amended, its response indicates that Scan Optics' proposal meets the amended requirement. Scan Optics indicated that its system is compatible with the Caldwell Data Center's equipment and identified the drives which it uses. The failure to quote the amended requirement was merely an oversight on the part of Scan Optics. There is no requirement that the requirements of the RFP be properly quoted or quoted at all in a response. Section 3.01.15 of the RFP, as amended, provides the following mandatory requirement: The OCR Microfilm camera must provide an image reduction ratio within the range of 40:1 to 50:1, image reduction in duplex mode and provide at least two (2) blip sizes based on Kodak IMT specifications which can be selected under program control. The system must be capable of filming any blip sizes based on predefined conditions on a document by document basis. In its response Scan Optics identified the range of its image reduction ratios and indicated that it would provide the blip sizes required. Although Scan Optics' response can be interpreted to indicate something which Scan Optics will be able to do in the future, the Department reasonably accepted Scan Optics' response. The committee knew that technology for meeting the microfilm requirement existed and was in use in the industry. Based upon documentation provided by Scan Optics, the committee also knew that the reduction ratios could be provided by Scan Optics because its camera was under program control and was therefore adjustable. Because the camera was under program control, the committee knew that it could be adjusted to provide two blip sizes. The committee also knew that if Scan Optics was selected as the high scorer as a result of the first two phases of the evaluation its camera would be subjected to the benchmark test. In fact, Scan Optics' camera was subjected to the benchmark test and demonstrated that the requirements of Section 3.01.15 of the RFP could be met. Scan Optics properly responded Section 3.01.15 of the RFP and the Department reasonably accepted its response. Section 3.01.18 of the RFP provides the following mandatory requirement: The OCR must be capable of processing documents with a paper weight range from 20 lbs. to 110 lbs. A paper thickness of .0075 inch capability is required. Scan Optics' response to Section 3.01.18 of the RFP was as follows: Standard Scan-Optics specification of paper weight is from 20 lbs. to 100 lbs. However, Scan-Optics personnel will modify the transport vacuum pumps and perform the necessary pre- ventative maintenance routines to accomplish the additional 10 percent requirement at the higher paper range, as we have done in numerous other installations. Scan Optics' total response indicates that it can meet the requirement of Section 3.01.18 of the RFP. The Department reasonably accepted the response. The Department-knew that similar equipment was frequently modified to fit specific jobs, that Scan Optics had indicated that it had modified its equipment in "numerous other installations" and that Scan Optics had indicated that it would modify its transport system. The Department also knew that the ability to process 110 lb. paper would be benchmark tested. The vendors were provided with sample forms which were .0075 inch thick and 110 lb. weight. This was the actual paper used by the Comptroller. Scan Optics' ability to meet the requirement of Section 3.01.18 of the RFP was tested and demonstrated in the benchmark test. Section 3.01.43 of the RFP provides the following mandatory requirement: "The Vendor must propose to provide four (4) manuals for application and program development." Section 3.01.44 of the RFP provides the following mandatory requirement: "The Vendor must propose to provide three (3) sets of manuals for support of system operations. Scan Optics indicated that it would provide the manuals at the time the contract was awarded. There was no requirement that a vendor provide the manuals at the time a response was filed. Section 3.01.43 and Section 3.01.44 of the RFP only sought assurances that the manuals would be provided. Scan Optics' response to Section 3.01.43 and Section 3.01.44 of the RFP and the Department's acceptance of the response was reasonable. Prior to amendment, Section 3.03.2 of the RFP provided the following desirable requirement: The Vendor should be able to upgrade the OCR font recognition as the Vendor makes improve- ments in font recognition to improve OCR read rates. This upgrade should be installable by the State. Section 3.03.2 of the RF was renumbered as Section 3.02.2 and the last sentence was amended to provide: "This upgrade should be installable by the State or, if installed by the Vendor, at no additional cost to the State." Scan Optics' response quoted the requirement before the amendment. The response, however, indicated that the requirement, as amended, could be met and the amendment was included in another portion of the Scan Optics' response. The Department reasonably accepted the response of Scan Optics to Section 3.02.2 of the RFP. Section 3.02.3 of the RFP (originally numbered 3.03.3) includes a desirable requirement that vendors specify the projected number of desk weekly unemployment insurance claim certification documents a vendor's proposed system could process in one hour with no more than three operators -- one to operate the OCR and two to correct unrecognized characters. Section 3.02.3 of the RFP provides that the document to be processed and the rules for processing are described in Chapter x, Section 10.2 of the RFP. The vendor with the highest score was to be benchmark-tested pursuant to these rules to determine if the vendor's response was accurate. Chapter x, Section 10.2 of the RFP describes the data that would be included in the claim form, how the form would be completed, the weight of the paper and the styles or fonts which would be used. Section 3.02.3 of the RFP only requires that the number of documents processed be provided. Scan Optics' response to Section 3.02.3 of the RFP provided that "Scan-Optics throughput based upon your requirements above will be: 3,500 desk weekly UI claim certification forms in one hours [sic]." Scan Optics' response went on to repeat the criteria set out in the RFP and provided: "Therefore, because of the above variables, Scan-Optics throughput has been calculated using the following assumptions:" The response goes on to provide certain assumptions made by Scan Optics in calculating the number of documents it projected could be processed. The assumptions set out in Scan Optics' response do not expressly limit or condition its estimate of 3,500 documents per hour. The response was given with knowledge that the estimate would have to be proved to be accurate in the benchmark test. Scan Optics' response was based upon the use of a standard formula and was reduced from 4,800 to 3,500 in order to give a projection which could be met and accounted for loss of productivity due to jams, operator absence and other problems. The projection was tested by Scan Optics before the proposal was submitted to the Department. The Department accepted the projection of Scan Optics and awarded Scan Optics the maximum points available for the desirable requirement of Section 3.02.3 of the RFP, 280 points. The Department did not take into account the assumptions expressed by Scan Optics in its response. The evidence did not prove if the assumptions expressed by Scan Optics are inconsistent with the rules for processing which would be followed in the benchmark test. Scan Optics successfully demonstrated its ability to process 3,500 forms per hour in the benchmark test. The benchmark test did not incorporate the assumptions made by Scan Optics. The forms used in the test were completed by individuals who received less instructions than claimants and State employees who will actually complete the forms. Even the instructions given were not completely followed. The benchmark test provided an accurate test of Scan Optics' ability to process claims. The Department reasonably accepted Scan Optics response to Section 3.02.3 of the RFP. Section 1.14 of the RFP required vendors to provide five references where "similar or exact proposed equipment and Licensed Software is installed and operational." Section 4.05 of the RFP provided for the manner in which references were to be evaluated. Up to 10 points per reference could be awarded, up to a maximum of 50 points. Section 4.05.6 of the RFP defined "similar equipment and software" to mean equipment consisting of "an OCR with microfilm option that reads either numeric handprint or multifont." [Emphasis added]. The Petitioner and Scan Optics provided more than five references. All references were contacted. Five of the references provided by both vendors had similar equipment and software as defined by Section 4.05.6 of the RFP. Scan Optics' five satisfactory references were Newport News Ship Building, IRS Atlanta, Barnett Bank of Florida, State of Ohio Department of Taxation and State of Tennessee Department of Revenue. The Department reasonably concluded that the references provided by Scan Optics satisfied the requirement of Section 1.14 of the RFP. The Department did not evaluate Scan Optics' response in an arbitrary and capricious manner.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Formal Written Protest and Petition for Formal Administrative Proceeding filed by the Petitioner, Recognition Equipment, Inc., be dismissed. DONE AND ORDERED this 26th day of February, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 26th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4570 BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." THE PETITIONER'S PROPOSED FINDINGS OF FACT: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection 1 RO 13. 2 RO 9 and 75-76. 3 Not supported by the weight of the evidence. 4 RO 25, 27 and 29. 5 Although this statement was made, see RO 81. 6 RO 34-35 and 60. 7 RO 45. 8 RO 34, 36 and 47. 9 RO 48. 10 Irrelevant. 11 RO 124 and 126. Although the first sentence is true, it is irrelevant. The second sentence is not supported by the weight of the evidence. The first sentence is accepted in RO 83. The rest of the proposed finding of fact is irrelevant. Not supported by the weight of the evidence. Not supported by the weight of the evidence. The first sentence is argument. The second sentence is irrelevant. If the Petitioner relied on oral state- ments such reliance was not reasonable. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Although Mr. Stallworth did make the quoted statement, it does not expand the requirements specifically included in the RFP. Not supported by the weight of the evidence. The first two sentences are accepted in RO 49. The third and fourth sentences are not supported by the weight of the evidence. 21 RO 57. 22 Not supported by the weight of the evidence. THE DEPARTMENT'S PROPOSED FINDINGS OF FACT: 1 RO 1, 3 and 5. 2 RO 5-6 and 8. 3 RO 13 and 38. 4 RO 12 and 14-16. 5 RO 22-23. 6 RO 25. 7 RO 26-27. 8 RO 29. 9 RO 29-30. 10 RO 73-74. 11 RO 77-78. 12 RO 80. 13-15 RO 81. 16 RO 40-44. 17 RO 44. 18 RO 67-68. 19 RO 70. 20 RO 82-84. 21 RO 84. 22 RO 87-88 and 90. 23 RO 91. 24 RO 93-97. 25 RO 96. 26 RO 99-100. 27 RO 100 and 102. 28 RO 112-113. 29 RO 115-116. 30 RO 122. 31 RO 57. 32 RO 47-49. 33 RO 53. 34 RO 54-55. 35 Irrelevant. 36 RO 54. 37 RO 124 and 127. 38 RO 125. 39 RO 126. 40 RO 127. 41 RO 128. SCAN OPTICS' PROPOSED FINDINGS OF FACT: 1 RO 1. RO 8. RO 9. 4 RO 75-76. 5 RO 76. 6 Irrelevant. 7 RO 10. 8 RO 11 and 26. 9 RO 11. 10 RO 1-2. 11 Irrelevant. 12 RO 3. 13 Hereby accepted. 14 RO 4. 15 RO 5. 16 RO 6. 17 RO 7. 18 RO 8. 19 RO 13. 20 RO 17. 21 RO 18 and 57. 22 RO 19. 23 RO 20. 24 RO 14-16. 25 RO 21. 26 RO 26. 27 RO 27. 28-29 RO 28. 30 Hereby accepted. 31 RO 29. 32 RO 30. 33 RO 32. 34 RO 33. 35 RO 34 and 37. 36 RO 37. 37 RO 38. 38 RO 39. 39 RO 39. The second and third sentences are irrelevant. 40 RO 40. 41 RO 43. 42 RO 44. 43 RO 42 and 44. 44 The first sentence is not supported by the weight of the evidence. The second sentence is hereby accepted. 45 RO 45. 46 RO 56. 47 RO 57. 48 RO 58. 49 RO 59. 50 RO 60. 51 RO 61. 52 RO 62. 53 RO 52. 54 RO 53. 55 RO 54. 56 RO 63. Irrelevant. Hereby accepted. 59 RO 64. 60-64 Irrelevant. 65 RO 38, 47 and 49. 66 RO 47-49. 67 RO 49-51 and 55. 68 RO 65. 69 Hereby accepted. 70 RO 78. 71 RO 66-68 and 70. 72 Hereby accepted. 73 RO 69. 74 RO 70. 75 RO 71. 76 RO 72. 77 RO 78. 78 The first and last sentences are accepted in RO 78-79. The second sentence is not supported by the weight of the evidence. 79 RO 75. 80 RO 82-84. 81 RO 84. 82 RO 85. 83 RO 92. 84 RO 93. 85 RO 95. 86 RO 96. 87 RO 97. 88 RO 98. 89 RO 99-100. 90 RO 101. 91 RO 100. 92 RO 102. 93 RO 86. 94 RO 87. 95 RO 88-90. 96 RO 103. 97 RO 106. 98 RO 105. 99 RO 106. 100 RO 107. 101 RO 104. 102 RO 105. 103 RO 107. 104 RO 108-109. 105 RO 110. 106 RO 111. 107 RO 112-113. 108 RO 114. 109 RO 113. 110 RO 115. 111 RO 116-117. 112 RO 119. The last sentence is irrelevant. 113 RO 118. 114 RO 121-122 Cumulative. Hereby accepted. 117 RO 123. 118 RO 124. 119 RO 125. 120 RO 126. 121 RO 127. 122 RO 128. 123 RO 129. 124 RO 130. 125 Not a finding of fact. COPIES FURNISHED: Edwin F. Blanton, Esquire Post Office Box 12808 Tallahassee, Florida 32317 Hugo Menendez Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32301 Kenneth H. Hart, Jr., Esquire General Counsel Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 Leonard A. Carson, Esquire John D. C. Newton, II, Esquire Mahan Station 1711-D Mahan Drive Tallahassee, Florida 32301 Thomas J. McHale, Esquire Gager, Henry & Narkis One Exchange Place Post Office Box 2480 Waterbury, Connecticut 06722
The Issue At issue is whether petitioner's application to take the examination required for licensure as an optician should be approved.
Findings Of Fact Mr. Silverstone seeks licensure through the apprenticeship program. His organized sponsor indicated he only supplied initial sponsorship forms. The vast majority of the hours Mr. Silverstone claims were not certified by his sponsor whose signature was forged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered approving petitioner's application to take the examination required for licensure as an optician, and imposing an administrative fine of $1,000. DONE AND ENTERED this 13th day of June, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997.
The Issue Whether Petitioner should receive a passing grade for the Unlimited Electrical Contractors' Examination given on January 29, 1999.
Findings Of Fact On January 29, 1999, Petitioner Ulises A. Garcia (Garcia), sat for the Unlimited Electrical Contractors' Examination given by Respondent, Department of Business and Professional Regulation, Electrical Contractors' Licensing Board (Department). The examination consisted of 150 multiple-choice questions, 100 of which were on the morning portion of the examination and the remaining 50 of which were on the afternoon portion of the examination. The questions are based on general trade knowledge and certain reference materials, which are identified to the candidates prior to the examination in the "Candidate Information Booklet for the Electrical Contractors' Examination." The candidates are allowed to bring the reference materials to the examination and to refer to them during the examination. An applicant must receive a score of at least 75 in order to pass the examination. Each question is worth two-thirds of a point. The Department rounds the scores. For example, if a candidate scored 74 and 2/3 points, the Department awards a grade of 75. By examination grade report mailed March 15, 1999, the Department notified Garcia that he had failed the examination with a grade of 74. Garcia requested an administrative hearing challenging questions 20, 53, and 100 on the morning portion of the examination and question 2 on the afternoon portion of the examination. At the final hearing, Garica withdrew his challenge to questions 100 and 2, leaving questions 20 and 53 at issue. Question 20 dealt with service entrance conductors. The parties stipulated that Garcia gave "A" as the answer. The answer which the Department considered to be correct was "C." Garcia stated that he was giving the answer which applied to the general rule concerning service entrance conductors and that he did not consider exceptions to the general rule in his answer. The Department took the position that the question did not specify that only the general rule should be considered; thus, the exceptions should be included. If the general rule is used pertaining to question 20, the correct answer is "A." If some but not all the exceptions are used, the correct answer would be "C." The question, as posed, requires that if exceptions are to be considered all the exceptions should be considered. The multiple-choice question had four possible answers, none of which was the correct answer based upon the testimony of both Garcia's expert witness and the Department's expert witness. Because the correct answer is not included in the choices, Garcia should be given credit for his answer as has been the past practice of the Department when a question is vague or ambiguous. Question 53 dealt with passive infrared detectors, commonly known as motion detectors. The parties stipulated that Garcia answered the question as "B." The Department's position is that the correct answer is "D." The correct answer is "D" as found in Section 10.2 of Understanding and Servicing Alarms Systems, which is listed as reference material in the "Candidate Information Booklet for the Electrical Contractor's Examination." Question 53 is not vague or ambiguous. Eighty-two percent of the 102 persons who took the January 29, 1999, examination answered question 53 correctly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entering finding that Ulises A. Garcia received a passing score of 75 on the Unlimited Electrical Contractors' Examination given on January 29, 1999. DONE AND ENTERED this 22nd day of October, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 22nd day of October, 1999. COPIES FURNISHED: Renato Perez, Esquire Law Offices of Perez and Perez 1105 Southwest 87th Avenue Miami, Florida 33174 Theodore R. Gay, Esquire Department of Business and Professional Regulation, Electrical Contractors' Licensing Board 401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128 Ila Jones, Executive Director Electrical Contractors' Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this proceeding are whether DOAH has jurisdiction over the subject matter of this proceeding and whether Petitioner has standing under Chapter 120.
Findings Of Fact Respondent, Office of Financial Regulation (OFR), which has been through several name changes, is the agency responsible for enforcement of Chapter 494, Florida Statutes, governing the regulation and licensure of mortgage brokers and mortgage lenders. In order to perform its regulatory and licensure duties OFR collects, processes and maintains information related to mortgage brokers and mortgage lenders seeking licensure in Florida and/or complying with Florida law. Much of the information regarding a particular broker or lender is maintained by OFR in its licensure files. At least some, if not all, of the information forming OFR's licensure files are kept in electronic form in OFR's computerized licensure database. The record is not clear, if such information is also maintained in paper form. OFR's database is maintained on computers controlled and managed by Intervenor, Office of Financial Services (OFS). OFS supplies administrative and information systems support services, including computer security, to maintain OFR's licensure database, as well as other information maintained on OFS's computer systems. Petitioner, Dave Taylor, is president of Petitioner, Florida Compliance Specialists, Inc. Both are residents of Leon County. Petitioners' business consists of providing regulatory compliance and licensing services to in-state and out-of-state mortgage brokers or mortgage lending companies doing business or seeking to do business in Florida. Petitioners' licensure service includes, in part, aiding their clients in obtaining licensure with OFR. As part of their service, Petitioners' monitor the status of OFR's licensure files regarding a client's application for licensure, as well as gathering information related to their clients on other licensure, deficiency or compliance matters. At least some of the information contained in these files is kept in electronic form, and is accessible online through a wide-area network connection to OFR's licensure database. Since 1999 and with the help of OFR's predecessor agency, Petitioners had computer online access, as well as non-online access, to certain of OFR’s licensure databases. The online access was provided by OFR through a networking services provider. Agency personnel provided Petitioners with a user identification and password for read-only access to OFR's licensure database. Read-only access permits a user to look at and print information contained in a database or document, but does not permit a user to change or add data to a database or document. The networking services provider also supplied Petitioners with a separate user identification and password so that Petitioners could access the networking services provider's computer system. In order to access the networking services provider's computer system Petitioners had to enter into a written limited user agreement with the networking services provider. Petitioners paid a fee based on that agreement to the networking services provider. There was no evidence that any part of the fee paid to the networking services provider for its service was paid to OFR or any of its predecessor agencies for access to its database. There was no access fee paid directly to OFR. At some point prior to this action, OFR discontinued Petitioners' online access to its licensure database. Petitioner used and continues to desire online access to OFR's database in order to provide faster service to its clients which in-turn might speculatively allow Petitioners to take on more clients. Lack of online access does not prevent Petitioners from obtaining any information they utilize in their business. Such information remains available through traditional, non-online access methods such as written or telephonic requests, resulting in oral responses or paper copies of the information requested. Such traditional requests for information from OFR may be less speedy and more costly to obtain. However, Petitioners offered no evidence to support their claim of additional costs created by non-online access vis on-line access. More importantly, irrespective of speed or costs, online access to OFR's database or computer system is neither a legal right nor a substantial interest cognizable in an administrative hearing for purposes of Petitioners standing in this case. Additionally, Petitioners have alleged a contract with OFR for continued online access. Other than stating there is a contract, the pleadings afford no factual basis for concluding such a contract exists. There is no contract attached to the pleadings and Petitioners have no idea of the terms or conditions of such a contract. Petitioners do not know whether the contract is written or oral or who the parties are to the contract. Clearly these allegations are purely speculative. As such, the pleadings do not form the bases for facts sufficient to demonstrate Petitioners' standing in this action.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent Charley O. Young & Sons Trucking, Inc. (Company) is engaged in the business of hauling United States Mail between various United States Postal Service's post offices in the State of Florida, and is an employer as that term is defined in Section 760.10(7), Florida Statutes. Charley O. Young (Young), president of the Company, has been involved in the business of hauling United States mail for over 35 years. The mail which the Company hauls from post office to post office comes from places throughout the United States and the world. Such mail is considered to be in a continuous flow in interstate commerce from the moment it is mailed until it reaches its ultimate destination. Petitioner Dennis Bonville has been employed by the Company from time to time as an employee and as a subcontractor. Petitioner's last employment with the Company was as an employee driving a truck hauling mail from Tampa, Florida to Ruskin, Florida. The Company hired Petitioner with the full knowledge and understanding that Petitioner had a handicap known as monocular vision (vision capacity in one eye). Notwithstanding his handicap, Petitioner had been granted medical certification and was qualified to operate a commercial motor vehicle in the State of Florida in intrastate commerce in accordance with Section 316.302(2)(j), Florida Statutes. The position held by Petitioner was created as a result of the Company being awarded an emergency mail hauling contract between Tampa, Florida and Ruskin, Florida by the U. S. Postal Service beginning February 10, 1990, for an indefinite period. At the time Petitioner was hired, he understood that his employment with the Company was indefinite since the contract for the Tampa to Ruskin run with the U. S. Postal Service was for an indefinite period. On or about April 27, 1991, the Company was audited by the United States Department of Transportation, Office of Motor Carrier Safety, Florida Division (USDOT). The USDOT agent reviewed, among other things, the personnel and medical files of all the Company's drivers. During the audit, the agent discovered that Petitioner had monocular vision. The contract for the Tampa to Ruskin mail run required the Company to comply with all state and federal regulations, including those promulgated by the USDOT. Under USDOT rules, monocular vision disqualified Petitioner from driving a commercial motor vehicle in interstate commerce. The agent demanded that Young immediately remove Petitioner from the Tampa to Ruskin run since it involved operating a commercial motor vehicle in interstate commerce. However, since Young had no qualified driver to relieve Petitioner, the agent agreed to allow Petitioner to complete the run for the day with the understanding that the Petitioner would be relieved upon his return. The agent then advised Young that he would return the next day to complete the audit, and if the Petitioner had not been relieved, he had the authority to, and would, put a padlock on the door and shut down the Company's business. It was the agent's position that the Company was engaged in interstate commerce due to its hauling mail that was in interstate commerce, notwithstanding that the Company's vehicles never left the State of Florida. Therefore, the Petitioner's monocular vision rendered him unqualified to drive a commercial motor vehicle operating in interstate commerce under the USDOT rules which governed drivers under mail contracts. When the Petitioner returned that night to the Company's office, Young informed the Petitioner that due to the agent's position and his threat to shut down the Company's business if Petitioner continued to make the Tampa to Ruskin run, he had no alternative but to relieve the Petitioner of the Tampa to Ruskin run. When the agent returned to complete the audit the next day, the Petitioner had a heated discussion with the agent concerning the agent's position and its effect on the Petitioner's employment. The agent maintained his position that Petitioner was not qualified to drive the vehicle being used in the Tampa to Ruskin mail run which was considered to be in interstate commerce. At the conclusion of the audit, the Company was issued, among others, citations for violating 49 C.F.R. 391.11(b)(6), using a physically unqualified driver, and was fined $6,000. At this time, the Company had no other positions which it could offer the Petitioner that would accommodate his handicap. Therefore, as a result of the audit and the agent's threat to "shut down the business", the Petitioner was terminated by the Company effective April 27, 1991. At the time Petitioner was terminated he was earning $11.19 per hour and working 40 hours per week. Petitioner's job performance was not an issue in the Petitioner's termination. The Company's bid for the renewal of the Tampa, Florida to Ruskin, Florida contract was unsuccessful, and on April 30, 1991, the Company's contract for the Tampa to Ruskin mail run expired. Petitioner was replaced by a Company employee who was qualified under the USDOT rules to operate the vehicle used on the Tampa to Ruskin run for the three days remaining on the contract. After Petitioner's termination, sometime around October, 1991, the Petitioner was offered employment with the Company driving a van, which Petitioner was qualified to drive, delivering special delivery mail. However, this employment offered less money than Petitioner's previous employment with the Company and was turned down by the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition For Relief filed by the Petitioner. RECOMMENDED this day 29th of August, 1994, at Tallahassee, Florida. WILLIAM R. CAVE 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 29th day of August, 1994.
