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.
The Issue The issue is whether the Amended Order of Penalty Assessment issued to Respondent, Dave's Tractor, LLC, on August 27, 2018, is correct.
Findings Of Fact Respondent is a limited liability company engaged in the construction business with offices at 434 Skinner Boulevard, Suite 105, Dunedin, Florida. It uses tractors and a grading process to prepare land prior to building construction for commercial clients. Its managing member is David Richardson. The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. To enforce this requirement, the Department conducts random inspections of job sites and investigates complaints concerning potential violations of workers' compensation rules. On May 25, 2018, Christina Brigantty, a Department investigator, conducted a routine inspection of a job site at 3691 Tampa Road, Oldsmar, Florida. She observed two men working in a ditch, one man mixing cement, the other man driving a tractor. Investigator Brigantty observed four individuals at the job site, including the two working in the ditch: Dylan Richardson; Ismael Demillon; Javier Mastica; and Jorge Duran. She was informed by the individuals that they worked for Richardson Trailers, LLC. Investigator Brigantty called Mr. Ramsey, corporate officer for Respondent, who confirmed that Respondent hired Richardson Trailers, LLC, as a subcontractor. She later confirmed through discussions with Dylan Richardson and the Coverage and Compliance Automated System that Richardson Trailers, LLC, had no workers' compensation insurance on its employees. The parties have stipulated that at the time of the inspection, Respondent had not secured workers' compensation for any of the four individuals observed on the job site. Investigator Brigantty received approval from her supervisor to issue Respondent a Stop-Work Order and Request for Business Records for Penalty Calculation (BRR). These papers were served on Respondent on June 30, 2018. The BRR requested numerous types of business records for the period May 26, 2016, through May 25, 2018, including business tax receipts (occupational licenses), trade licenses or certifications, and competency cards held by Respondent or any of its principals; payroll documents (time sheets, time cards, attendance records, earnings records, check stubs, and payroll summaries for both individual employees and aggregate payrolls, and federal income tax documents reflecting the amount of remuneration paid or payable to each employee, including cash); and account documents including all business check journals and statements, which would include cleared checks for all open and/or closed business accounts established by the employer. Respondent failed to provide any business records in response to the BRR to determine Respondent's payroll for the audit review period. Therefore, the Department proceeded to compute a penalty based on imputed payroll in accordance with section 440.107(7)(e), Florida Statutes. This formula produced a penalty assessment of $165,654.10. On August 27, 2018, the Department served Respondent with an Amended Order of Penalty Assessment totaling $165,654.10. Pursuant to Florida Administrative Code Rule 69L-6.028(4), the Department also gave Respondent 20 business days in which to provide business records that would confirm Respondent's actual payroll during the two-year review period. This meant the records were due by September 25, 2018. A final hearing was scheduled initially for January 24, 2019. By agreement of the parties, on January 4, 2019, the case was rescheduled to March 15, 2019. One ground for granting a continuance was that the parties were "waiting on outstanding discovery that is being located and is necessary for an amicable resolution," presumably referring to items listed in the BRR. The final hearing was conducted on March 15, 2019, or almost seven months after the Amended Order of Penalty Assessment was issued. A week before the final hearing, Respondent began providing business records to the Department, including bank statements and checks on March 8, 2019, and a general ledger on March 13, 2019. Given the time constraints, they were not reviewed by the auditor until the day before the final hearing. The auditor conceded at hearing that these records would result in a "significantly lower" penalty, and they were sufficient to recalculate the penalty. Even so, at this late date, the Department refuses to recalculate the assessment. Respondent's principal, Mr. Richardson, testified that he has "no way to pay" the penalty, it will force him out of business, and he will be required to terminate his employees. Mr. Richardson also testified that he requested the records from the bank on "numerous occasions," but the bank refused to provide them directly to the Department or referred him to other branch offices. However, bank records are not the only way an employer can demonstrate the amount of payroll. This also can be established by business taxes or other records described in the BRR. Mr. Richardson denied knowing that business taxes are an option if bank records are unavailable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order finding that Respondent violated the workers' compensation laws by failing to secure and maintain required workers' compensation insurance for its employees, and imposing a penalty of $165,654.10. DONE AND ENTERED this 3rd day of May, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2019. COPIES FURNISHED: Steven R. Hart, Qualified Representative Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Kyle Christopher, Esquire Department of Financial Services Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed) Adrian Shawn Middleton, Esquire Middleton & Middleton, P.A. 1469 Market Street Tallahassee, Florida 32312-1726 (eServed)
Findings Of Fact On September 12, 1985, the LCSB issued a Request for Proposals ("PEP") for a telephone system to serve its Administrative Complex and Lively Area Vocational-Technical Center Main Campus ("the proposed telephone system"). Subsequently, several addenda and supplemental materials were forwarded to all participating vendors of handwritten portion. The PEP scheduled a vendor's conference for September 19, 1985. It required any "discrepancies, errors, omissions, or ambiguities in the specifications or addenda (if any)" to be reported to the LCSB no later than September 25, 1985. Similarly, the PEP required vendors to "submit written requests for clarification of terminology, if necessary, no later than September 25, 1985." Responses to the PEP were required by the time set for opening the vendors' proposals at 10:00 a.m. on October 4, 1985. The compressed time frames were imposed in an effort to be able to complete the PEP process, award the contract and have a telephone system installed by the first week of January 1986. This target date for installation was established because, although budgetary and other problems delayed the start of the PEP process, the LCSB had decided by September 1985 to change its telephone listings in the December 1985 to December 1986 edition of the Official Telephone Directory For Tallahassee, Florida, in anticipation of a new telephone system. Pursuant to a requirement of the PEP, ten letters of intent to submit proposals were received on or before September 19, 1985, including letters of intent from Petitioner, Telecom Plus of Florida, Inc. ("Telecom Plus"), and Intervenor, Centel Business Systems ("Centel"). Telecom Plus, Centel, and three other vendors submitted proposals on or before the deadline of October 4, 1985. By letters dated October 10, 1985, the LCSB Director of Purchasing notified the five proposing vendors that the Superintendent intended to recommend to the LCSB that the contract be awarded to Centel based on the bid tabulation prepared by the LCSB telecommunications consultants. Attached to those letters was a copy of the evaluation summary (bid tabulation). The letter was written on LCSB stationery on behalf of the LCSB and, under Rule 6g x 37-6.09, Rules of the LCSB, had the effect of announcing the intention of the LCSB to award the contract to Centel. The proposed telephone system will serve two locations, the LCSB Administration Complex and the Lively Area Vocational-Technical Center Main Campus. These two locations are separated by a distance of approximately 4,500 feet. The PEP required the proposed telephone system to provide telephone service to each location, as well as to interconnect the two locations. The cable(s) for the interconnection between the two locations will be housed in a 4,500-foot long, four-inch PVC conduit to be installed as part of the proposed telephone system. To satisfy the needs of the LCSB, the proposed telephone system could be in one of several configurations. At least one Electronic Private Automatic Branch Exchange (EPABX, commonly referred to as a "switch") is necessary to provide for intra- and inter-facility communications and to connect the Administration Complex and Lively Area Vocational-Technical Center Main Campus to the outside world. The PEP indicated that the possible configurations for the proposed telephone system included: (1) a single switch at the Administration Complex with cables extending at least 4,500 feet to each telephone instrument at the Lively location; (2) a single switch at the Administration Complex with remote peripheral equipment ("RPE," means a portion of the single switch which is remotely located) located at the Lively location and connected to the switch by 4,500-foot long cables, and (3) two switches, one at the Administration Complex and one at the Lively location, interconnected by 4,500-foot long cables. Telecom Plus filed a protest after the posting of the bid tabulations on or about October 16, 1985. 2/ In its letter of protest, as further explicated in the Prehearing Stipulation, Telecom Plus raised three basic issues. First, Telecom Plus complained that the RFP specifications were ambiguous and not well enough defined, resulting in comparisons between vendors' systems which were not "apples to apples." Second, Telecom Plus claimed that Centel's Call Accounting System, a required subcomponent of the proposed telephone system, fails to meet the FFP's specifications. Finally, Telecom Plus challenged the subjectivity of the point awards in the equipment evaluation, claiming that the point awards for equipment did not accurately reflect the proposals of Telecom Plus and Centel. The LCSB used a request for proposals to solicit vendors' suggestions on how its proposed telephone system needs could best be met because, in the opinion of the LCSB telecommunications consultants, an invitation to bid setting forth precise specifications for equipment in a given configuration would have eliminated all competition among vendors. While the telephone systems proposed by Telecom Plus and Centel differed in the mechanisms used to meet the LCSB needs, the systems were capable of comparison in an evaluation of whether and the extent to which they met the LCSB needs. Each of the alleged ambiguities raised in the Telecom Plus letter of protest were apparent on the face of the FFP. Telecom Plus did not avail itself of several opportunities to have any such perceived ambiguities in the RFP specifications cleared up. On September 19, 1985, the LCSB conducted a vendors' conference to answer vendor questions concerning the PEP and to clarify the vendors' understanding of the PEP. Representatives of Telecom Plus and Centel, as well as several other vendors, attended the vendors' conference. Notes from the vendors' conference setting forth questions raised and the LCSB's answers were distributed as supplemental material to all PEP specifications. In addition to the clarifications made as a result of the vendors' conference, the PEP included an invitation to vendors to submit written requests for clarification of terminology, if necessary, by no later than September 25, 1985. No such written requests were received by LCSB. The PEP also provided that any discrepancies, errors, omissions, or ambiguities in the specifications, errors, omissions, or ambiguities in the specifications or addenda should be reported in writing to the LCSB by no later than September 25, 1985. No such written notification was received by the LCSB. Despite complaints in its protest that these time frames were inadequate, Telecom Plus acknowledged the time frames in its response to the PEP and neither made objection nor took exception to them. On the merits, the PEP clearly and accurately communicated that no system architecture was "preferred" over another. The LCSB wanted the vendor's to propose their solutions to the peculiar communications problems faced by the LCSB. Neither single switch, double switch nor switch with remote peripheral equipment (RPE) configuration was to be excluded from consideration. Regarding the system features, the PEP required electronic multi-line key sets "providing for combinations of five or more lines and/or programmable feature access buttons." Although it may have been wiser to specify the maximum number of lines and feature access buttons, there is nothing ambiguous about the PEP. It requires a minimum of five lines or feature access buttons. Telecom Plus asserted that the Call Accounting System proposed by Centel did not comply with the RFP specifications in that the Call Accounting System proposed by Centel only provides 40,000 call records. The LCSB indicated in the notes from the vendors' conference that a 60,000 capacity in number of calls recorded was "desired"; no 60,000 capacity was specified in the EFP itself. Even if the desired target of 60,000 call records contained in the vendors' conference notes was considered a specification of the RFP, vendors had the option of adding or deleting items from the system requirements in their proposal as long as the additions or deletions are clearly indicated. Centel clearly indicated that its proposed SUMMA IV Call Accounting System would provide only 40,000 call records, complying with the addition/deletion provision of the RFP. 3/ In recognition of the fewer call records provided by Centel's Call Accounting System, the LCSB telecommunications consultants awarded Centel seven fewer points than possible. Telecom Plus, on the other hand, received all of the available points for its Call Accounting System that exceeded the desired target of 60,000 call records. The RFP described the criteria to be used by the LCSB in evaluating proposals. A maximum of 1,000 points would be awarded to each proposal--300 points for equipment considerations, 300 points for vendor considerations and 400 points for financial considerations. The equipment considerations included the system's fulfillment of the minimum size, feature, capacity and performance characteristics contained in the RFP, as well as the availability and functionality of specified items, such as the availability of features, ease of systems operation, and projected longevity. The vendor considerations included the vendor's capability and qualifications to provided installs and maintain the system, which would involve an evaluation of the vendor's experience (particularly with other installations of comparable size and complexity), available manpower, financial stability, and proposed installation and maintenance plans. The financial considerations included initial and recurring costs of the system, which would involve an evaluation of the cost of lease or purchase, cost of maintenance, cost of future additions based upon an assumed annual average growths cost of insurance, cost of systems administration, and any other determinable costs associated with the acquisition, installations or operation of the proposed system. In evaluating proposals, some effort was made to relate points to a dollar value. Since Centel's proposal would cost a total of $1,164,528 over seven years and Telecom Plus' would cost a total of $1,223,281 over seven years, it was borne in mind that each point in the equipment or vendor categories would relate to roughly $4,000 in the financial category. In other words, if a proposal fell short of optimal in an equipment category, for example, the proposal would receive enough fewer points in the equipment category to correspond to the value in dollars by which the proposal was thereby reduced figured at roughly $4,000 per point. By submitting a proposal in response to the PEP, Telecom Plus signified that it understood and accepted the criteria upon which proposals were to be evaluated and the sole discretion of the LCSB evaluators to determine the bid rankings. 4/ Extensive testimony was received regarding the capabilities and features of both Telecom Plus' proposed NEAX 2400 telephone system and Centel's proposed SL-1N telephone system. In addition, the LCSB telecommunications consultants who performed the technical evaluation of the proposals detailed the relative merits of the two systems in their Evaluation Of Proposals dated October 11, 1985. In the Evaluation Of Proposals, points were awarded as follows: Centel Telecom Plus A. Equipment Proven Reliability (of 40) 40 35 System Architecture (of 40) 39 35 Reliability Considerations (of 40) 37 35 System Capacities (of 40) 32 40 System Features (of 35) 35 33 Instruments (of 35) 28 30 Data Considerations (of 35) 34 30 Call Accounting System (of 35) 28 35 TOTAL 273 273 B. Vendor 292 290 C. Financial 384 366 GRAND TOTAL 949 929 The points awarded in the equipment evaluation were justified with one minor exception. The LCSB consultants based their award of points in the "System Features" category on the assumption that the system proposed by Telecom Plus provided for 100 speed call assignments. Actually, that system provides 200 speed call assignments. Accordingly Telecom Plus should have been awarded an additional point. Since the Telecom Plus system received 20 points overall less than Centel's proposed system, the addition of one point to Telecom Plus' total point award would not change the outcome. Regarding proven reliability of the equipment proposed, Centel's proposed switch was first marketed by Northern Telecom in 1975. The switch was improved and modified over the years, and much of the SL-1N is "backward compatible" (i.e., uses components that could be used in prior versions of the switch) Telecom Plus' proposed NEAX 2400, in contrast, has been on the market only approximately 18 months. This gave Centel's proposal the advantage in this category. Regarding Systems Architecture, Centel's RPE proposal gave it the advantage in solving the peculiar need of the LCSB to provide an EPABX to serve two buildings at least 4500 feet apart (but especially in comparison with the Telecom Plus proposal). Regarding reliability considerations, Telecom Plus did not prove (either by documentation in its proposal or by evidence at the hearing) that its D Term telephone instruments will operate reliably at 4500 or more feet from its single telephone switch, as was proposed to provide telephone service for the Lively building. Telecom Plus did, however, delete from the manufacturer's literature included in its response to the RFP the manufacturer's recommendation that the D Term not be used more than 4500 feet from the switch. All these facts and circumstances result in an advantage to the Centel proposal. In the categories System Capacities, Instruments and Call Accounting System, Telecom Plus' proposal deserved and was given the advantage. Telecom Plus did not prove that its advantage should have been larger. In System Capacities, Telecom Plus' proposal received eight more points (worth roughly $32,000) for being "non-blocking" (i.e., all telephone instruments could be off- hook at the same time) although Centel's proposal met all specifications of the RFP. Centel's Call Accounting System is capable of less-than-desired 40,000 call records; Telecom Plus' has the desired 60,000 call record capacity and was given the maximum 35 points in this category. Telecom Plus did not prove that its Call Accounting System was worth more than seven points (roughly $28,000) more to the LCSB, especially since lack of capacity can be addressed by simply "dumping" call records twice as often. (See also footnote 3 above.) Regarding the financial category, Telecom Plus proved that the LCSB consultants erroneously used the pre-cutover price of $240 instead of the post- cutover price of $281 in figuring the cost of additional telephone sets anticipated to be needed during the first seven years of operation under the Centel proposal. This error deflated the total cost of the Centel proposal by approximately $3,000 over seven years. In light of the actual total cost of the Centel proposal, Centel should have received only 383 points in the financial category instead of 384 points, not enough of a difference to change the outcome of this case.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Leon County School Board enter a final order awarding a contract to Centel Business Systems to install the telephone communications system proposed in its response to the Request For Proposals in this case. RECOMMENDED this 5th day of December 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 5th day of December 1985.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On February 7, 1986, DOT requested authority for noncompetitive single source acquisition of two (2) IBM 3380-AD4 Direct Access Storage Devices and four (4) IBM 3380-BD4 Direct Access Storage Devices (IBM Direct Access Storage Devices). To support its request, DOT noted, among other things, that: This would allow DOT to connect the proposed drives (IBM Direct Access Storage Devices) to the existing controllers and provide back up in case of controller failure (sometime referred to as the need for complete controlled redundancy). Other non-IBM equipment would require two (2) additional controllers and cause a space problem in its data center. The IBM Direct Access Storage Devices could be upgraded to double capacity (sometime referred to as double density). On February 7, 1986, the Department of General Services (DGS) denied DOT's request for single source acquisition. On February 20, 1986, DOT submitted additional support for the single source acquisition and, again among other things, noted the space problem and the need for two (2) controllers if non-IBM equipment was to be purchased since non-IBM storage units would not attach to IBM controllers. After the receipt of this additional information, James K. Kern, DGS; visited the DOT Burns Data Center and after reviewing the situation on-site and talking with Herbert Pressley of DOT; made a recommendation that the second request for single. source acquisition be approved. After the recommendation for approval by James K. Kerr, Memorex on February 27, 1986, filed notification with DGS of its intent to protest DOT's single source acquisition of IBM direct access storage devices. (b) On March 4, 1986, Memorex responded to its notification of intent to protest single source acquisition by letter to John J. Hittinger, DGS and, among other things, noted that: Memorex being a manufacturer of disk storage equipment since 1967 had demonstrated compatibility with every generation of IBM Data Storage. Memorex was willing to agree to a contractual upgrade to double capacity units when available. Memorex was withdrawing its protest. On March 13, 1986, DGS, based on Memorex's input and the withdrawal of its intent to protest single source acquisition, again denied DOT's single source request because DGS felt that the only way to determine if this bid should be single source or competitive was to competitively bid the direct access storage devices. On March 13, 1986, Steve Ferguson, DOT, commented on Michael A. White's letter of March 4, 1986 to John J. Hittinger, referred to in finding of fact number 6 and, among other things noted that: Controllers and disks must be cross connected in the DOT Bureau Data Center in the event of controller failure (complete controller redundancy) and that this backup policy would not be compromised. He was concerned about whether the Memorex data storage units would attach to the IBM 3880 controller. There is no evidence that White ever responded to this comment. At this point, based on conversation between White and Kerr, White and Pressley and White and Ferguson and correspondence received into evidenced it is clear that both DOT and DGS were of the opinion that Memorex could directly attach its data storage units to the IBM-388O controller without the intervention of a Memorex controller. Both DOT and DGS felt that a competitive bid was necessary to determine if there were suppliers other than IBM who could furnish direct access storage devices which met the specifications as contemplated by DOT. Also at this point, the evidence is clear that Memorex was aware that DOT wanted to purchase data storage devices with present capability for upgrading to double capacity that would attach directly to the IBM 3880 controller without the intervention of another controller and thereby provide for cross connection of controllers and disks so that complete controller redundancy could be achieved. On March 17, 1986, the DOT issued an Invitation to Bid for two (2) IBM 3380-AD4 direct access storage devices (or equivalent) and four (4) IBM 3380-BD4 direct access storage devices (or equivalent), ("the IBM (or equivalent) Direct Access Storage Units"). The Invitation to Bid contained the following material specifications: The direct access storage units must be "equivalent" to the IBM Direct Access Storage Units. The IBM (or equivalent) Direct Access Storage Units must "attach to existing IBM 3880-003 Storage Control units" (IBM Controllers.) The proposed IBM (or equivalent) Direct Access Storage Units must occupy a foot print no greater than 60 square feet. Direct access storage devices (disk drives) store the data on magnetic media. The two IBM 3380-AD4's or equivalents were "head of string disk drives" which attach directly to the IBM 3880-003 controller. The controller's function, as its name implies, is to control the operation of the disk drives. The IBM 3380-BD4's or equivalents are "non-head string disk drives" which attach to the AD4's in a string. No bid solicitation protest was filed by Memorex prior to the submission of its bid. On April 7, 1986, bids for the purchase and financing of IBM (or equivalent) Direct Access Storage Units were timely submitted by: Memorex Corporation -- for the Memorex Equipment which was alleged to be equivalent to IBM Direct Access Storage Units. Amdahl -- for Amdahl equipment allegedly equivalent to IBM Direct Access Storage Units, but which did not attach to the IBM Controllers. Government Leasing -- for IBM Direct Access Storage Units. Municipal Leasing - for IBM Direct Access Storage Units. Capital Financial Assets -- for IBM Disk drives. The Memorex bid provided for four (4) Memorex 3680 Direct Access Storage Units (disk drives) one (1) Memorex 3683 Dual Path Storage Controller one (1) Memorex 6240 or 3680 High Density Package Direct Access Storage Unite and one (1) Memorex 3888 controller. The purpose of the Memorex 3888 controller was to provide the connection between DOT's IBM 3880 controller and Memorex's disk drives. The "Memorex Equipment" met the sixty (60) square space limitation as set forth in the Invitation To Bid. The total price of the Municipal bid was $526,233.00. The total price of the Memorex bid was $504,854.00. On April 11, 1986, DOT posted the bid tabulation disqualifying the bids of Memorex and Amdahl as nonresponsive for failure to meet the bid specifications and awarding Contract No. APO886C2 to Municipal as the lowest responsive bidder. Memorex's bid was declared nonresponsive for three main reasons: The bid specifications required that the direct access storage control units attach to existing IBM controllers. Memorex's direct access storage units could not attach to the IBM 3880-003 Control Unit. DOT required redundancy within the system and intended to cross- connect the direct access storage devices to achieve that. Because Memorex's direct access storage units would not attached directly to the IBM 3880-003 controller, redundancy could not be achieved. IBM direct access storage units have in-place production units that can be field upgraded to double density. Memorex disk drives could not be upgraded to double density and did not have double density production units in the field. On April 14, 1986, Memorex filed its Notice of Protest of DOT's intent to award the contract to Municipal, and on April 24, 1986, Memorex filed its Formal protest with DOT. The configuration of Direct Access Storage Devices as proposed by Memorex and shown in Memorex's Exhibit No. 4 and the configuration as contemplated by DOT and shown in DOT's Exhibit No. l both require a Memorex 3880 controller to provide the connection between DOT's IBM 3880 controller and Memorex's 3680 Direct Access Storage Units. The configuration of Direct Access Storage Devices as contemplated by DOT in Bid No. APOB88C2 provides for the Direct Access Storage Devices to attach directly to DOT's IBM 3880 controller without using an intervening controller for the attachment. Controller redundancy is the process by which the controllers and the attached disk drives are cross-connected to guard against the chance of failures which could cause the loss of data and loss of access to data. Although the chance of such failures is low, DOT has determined that the possibility is high enough to warrant guarding against such failures. To obtain controller redundancy DOT began planning to cross-connect the IBM 3880 controllers eighteen (18) months ago. At this point cross- connecting has not occurred at DOT, but one of the reasons for this bid was to begin the process and provide redundancy. To obtain controller redundancy the disk drives subject to this bid must have the ability to directly attach to the IBM 3880 without an intervening controller. The more credible evidence shows that in considering the common practice and custom of the data processing industry the use of a specific model number of an IBM Direct Access Storage device (or equivalent) that must "attach" to a specific model number of an IBM controller in an invitation to bid establishes a benchmark which a non-IBM direct access storage device must equal in order to satisfy the specifications of the invitation to bid. In the instant case, DOT did establish a benchmark and all of the specifications of the IBM-3380-AD4 and 3380-BD4 Direct Access Storage Device, including how it attached to the existing IBM-3880 controller allowing for cross connection to obtain controller redundancy, were effectively included in Invitation to Bid. Considering the common practice and custom of the data processing industry in bidding projects, the bid specifications contained in the DOT Invitation To Bid and used by DOT in awarding Contract No. APO886C2 were clear and unambiguous. The equipment that was the subject of the Memorex bid did not meet the intent of the specifications of the Invitation To Bid. The DOT Invitation To Bid did not contain a "no substitute" limitation as provided for in Rule 13A-1.02(16), Florida Administrative Code, nor was it necessary since at the time of the Invitation To Bid both DOT and DGS were of the opinion that other suppliers of direct access storage devices, at least Memorex, could supply an "equivalent" direct access storage device that would attached directly to DOT's existing IBM 3880 controller. Although the word "equipment" appears throughout the Invitation To Bid, the evidence does not support the contention of Memorex that this allows the substitution of a configuration of equipment that performs the same functions as the specified Model of IBM direct Access Storage Device which can only attach to the IBM 3880 controller through an intervening Memorex controller. The "Memorex Equipment" has some of the same features and can perform some of the same functions as the "IBM Equipment" but the "Memorex Equipment" is not equivalent to the "IBM Equipment" specified in the Invitation To Bid. Municipal failed to insert its corporate charter number on the Bidder Acknowledgment Form, however, there was no space provided on the form for the corporate charter number even though paragraph 5, Legal Requirements of the Special Conditions attached to the Invitation To Bid specifically states that a space is provided. Municipal did not initial all twenty-three (23) special items attached to the Invitation To Bid, however, it did reference in its cover letter that the contract would include all of the terms and conditions of the bid and its response. Municipal failed to comply with Section 9, Services and Warranty of the Invitation To Bid when it did not include any attachment concerning service and warranty. Paragraph 6 of the Special Conditions attached to the Invitation To Bid provides for rejecting the vendor's bid for failure to comply with the mandatory requirements in the specifications. The Invitation To Bid and attachments do not define mandatory requirements and there was no other evidence introduced that defined mandatory requirements. DOT waived Municipal's failure to comply with those requirements listed in finding of facts 30, 31, and 32 on the basis that they were minor irregularities and its cover letter embraced all the terms and conditions of the Invitation To Bid. There was no evidence that Memorex made any inquiry of DOT in regard to clarifications of the specifications after receiving the Invitation To Bid and before submission of its bid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that a final order be entered dismissing the bid protest submitted by Memorex Corporation on State Bid No. APO9886C2 and awarding the contract to MUNICIPAL LEASING CORPORATION. Respectfully submitted and entered this 11th day of July, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 July, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO.86-1479BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The Petitioner has interspersed legal arguments throughout its Proposed Findings of Fact which have some facts stated within the legal arguments but not stated specifically as a finding of fact, and in those instances I have rejected the "Proposed Findings of Fact" as arguments. Covered in the background part of this Recommended Order. (a-c). Adopted in Finding of Fact 1(a-c). Adopted in Finding of Fact 2. (a-c). Adopted in Finding of Fact 11 (a-c). (a-e) Adopted in in Finding of Fact 14(a-c). Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. 8 (a-b). Adopted in Finding of Fact 18 (a-c). Rejected as legal argument. Rejected as not comporting with the substantial competent evidence in the record. Adopted in Finding of Fact 19. Adopted in Finding of Fact 15. Adopted in Findings of Fact 23, 24, 25, 26 and 27 but clarified. First sentence adopted in Finding of Fact 9. The second and third sentences are facts but rejected as irrelevant and immaterial because DOT and DGS both changed positions due to subsequent information supplied by Michael White. The fourth sentence is rejected as not comporting with the substantial competent evidence in the record. 15-16. Rejected as legal argument. Adopted in Finding of Fact 29 but modified. Adopted in Finding of Fact 18 but clarified. First two sentences rejected as immaterial. The next two sentences adopted in Finding of Fact 29 but modified. The last sentence is rejected as not comporting with the substantial competent evidence in the record. Rejected as not comporting with the substantial competent evidence in the record. The first two sentences rejected as not comporting with the substantial competent evidence in the record. The last two sentences rejected as argument. The first sentence rejected as not comporting with the substantial competent evidence in the record. The balance of the paragraph rejected as legal argument. The first two sentences rejected as legal argument and the last sentence rejected as not comporting with the substantial competent evidence in the record. First sentence rejected as not comporting with the substantial competent evidence in the record. The last sentence rejected as immaterial and irrelevant. Rejected as legal argument. Rejected as immaterial. First sentence rejected as legal argument and the balance rejected as immaterial. First sentence adopted in Finding of Fact 22 and the balance rejected as immaterial. Rejected as not comporting with the substantial competent evidence in the record. First sentence rejected as immaterial. The second sentence rejected as not comporting with the substantial competent evidence in the record. The fact that Memorex Equipment met the 60 square foot requirement is adopted in Finding of Fact 15 and the balance is rejected as argument. The first sentence adopted in Finding of Fact 11 and the balance rejected as argument. Adopted in Finding of Fact 20. The first sentence adopted in Finding of Fact 20 but modified. The next two sentences rejected as argument and the last sentence rejected as immaterial. The first and last sentences rejected as not comporting with the substantial competent evidence in the record. The second sentence rejected as immaterial. Rejected as not comporting with the substantial competent evidence in the record. The first two sentences adopted in Findings of Fact 11 and 15 and the balance rejected as argument. Adopted in Findings of Fact 30, 31 and 32 but clarified. Adopted in Finding of Fact 33 but modified. Adopted in Finding of Fact 35. Rejected as argument. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. (a-c) Adopted in Finding of Fact 11 (a-c). Adopted in Finding of Fact 13. Adopted in Finding of Fact 14(a-e). Adopted in Finding of Fact 17. (a-c). Adopted in Finding of Fact 18(a-c). Adopted in Finding of Fact 21 but modified. Adopted in Finding of Fact 20 but modified. The first three sentences rejected as irrelevant and immaterial. The balance is not stated as a finding of fact but as testimony of witnesses and is rejected as argument. Adopted in Finding of Fact 22 but modified. Adopted in Findings of Fact 1, 2, 3, 4 and 7. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 8. Adopted in Finding of Fact 7. COPIES FURNISHED: Carolyn S. Raepple HOPPING, BOYD, GREEN & SAMS 420 First Florida Bank Bldg. Post Office Box 6526 Tallahassee, Florida 32314 Larry Scott Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact On December 11, 1974 Rule 12A-1.32 F.A.C. became effective following notice (Exhibit 6) that numerous sections of the Revenue Code were being revised and that a public hearing on the revisions was being held by the Governor and Cabinet. At the time this rule became effective, rulemaking was governed by 120.041 F.S. and the procedure required in that section (which was replaced by 120.54 F.S. on January 1, 1975) was followed. Section 120.011 F.S., also repealed on January 1, 1975, provided that no rule enacted pursuant to Chapter 120 could be retroactive unless expressly so stated. Assessments against Petitioner resulting from the audit taken in 1975 covered the period January 1, 1973 to November 30, 1975. Petitioner's and Intervenor's business is "data conversion contracts and projects" by way of keypunching, key verifying, typing, key tape, key disk, and direct computer entry, or a combination depending on relative efficiencies and machine availability, with or without computer printed reports. More specifically, Petitioner's business of data conversion is the conversion of data from the written or spoken word or symbol into a communication medium (card, tape, disk, paper tape, paper, and direct to computer) through personal services. In connection therewith from time to time Petitioner purchases custom computer systems and programs. In essence, Petitioner converts data received from his customers into a form that can be placed in a computer and thereafter retrieved for such purposes as the customer may desire. In performing this function Petitioner uses paper tape, punch cards, magnetic tape, key tapes, keypunch, typewritten sheets, telephone lines, and other means of transmitting the information or data direct to the computer. The latter methods have been referred to as third generation computer software as the data is transmitted through a cathode ray tube by the operator direct to the computer rather than by means of cards, tape, or other tangible property on which the data is placed for transmission into the computer. The computer program in its operating environment is a product of human intelligence reduced to binary pulses, which are interpreted by the computer machinery to cause human knowledge to be transposed into desired and meaningful output. The basic issue to be resolved is the nature of computer software. Computer hardware refers to the tangible parts of the computer itself while software denotes the information loaded into the computer and the directions given to the computer as to what to do and upon what command. In its assessment Respondent has demanded payment for sales tax involving software processed and sold by Petitioner and Intervenors transmitted on punched cards, paper tape, and typed sheets. Respondent abated the assessment involving magnetic tapes because the tape was owned by Respondent and returned to him when the data superimposed thereon had been stored in the computer. Respondent does not assess sales taxes for computer information supplied to the customer unless tangible property on which the data is superimposed is used and which tangible property is not reusable because of the changes to the tangible property produced when the information or data was placed thereon. Since the magnetic tape was returned to Petitioner in a reusable state and title was never transferred to the customer, Respondent abated the assessment for sales taxes resulting in sale of software via magnetic tape. Similarly Respondent does not claim sales taxes are due when data is fed direct to the computer as no tangible property is transferred. However, when the identical data is transmitted to the computer by means of punched cards, paper tape or other tangible property which is physically changed by the addition of the intelligible data, sales taxes are collected pursuant to Rule 12A-1.32(4) and (7) F.A.C. The tangible property on which the data is superimposed has a value of less than five percent of the total sales price charged for the services. The same type of service is performed by Petitioner whether the data is ultimately entered into the computer by punched cards, magnetic tape, or direct.
The Issue Whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense; and, if so, whether the denial of her request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact The Parties Petitioner is a 49-year-old female who has requested that Respondent grant her an exemption from disqualification from employment pursuant to section 435.07, Florida Statutes, so that she can become employed as a caretaker for developmentally disabled individuals. Respondent is the state agency charged under chapter 393, Florida Statutes, with meeting the needs of children and adults having developmental disabilities. These disabilities include intellectual disabilities, autism, Down syndrome, cerebral palsy, spinal bifida, Phelan-McDermid syndrome, and Prader-Willi syndrome. Developmentally disabled persons have cognitive impairments and physical limitations that render them extremely vulnerable and highly dependent on their caregivers. Respondent fulfills its mission, in part, through direct service providers, who provide nursing, personal care assistance, transportation, companionship, in-home support, and a range of other caregiving services to persons having developmental disabilities. Because developmentally disabled individuals are extremely vulnerable, they are susceptible to potential harm or exploitation by persons providing care or other services. Therefore, such service providers are subject to level 2 employment screening pursuant to chapter 435. See § 393.0655, Fla. Stat. Petitioner's Disqualifying Offense and Other Offenses Petitioner committed her disqualifying offense on or about March 11, 2001——over 17 years ago.3/ According to the complaint/arrest affidavit that was included as part of Respondent's Exhibit 2, the file on Petitioner's request for an exemption, Petitioner assaulted and battered a 14-year-old girl during an altercation that had escalated from verbal to physical. Petitioner was charged with aggravated child abuse. According to the Finding of Guilt and Order Withholding Adjudication/Special Conditions entered by the Circuit Court for the Eleventh Circuit in and for Miami-Dade County, Florida, Petitioner was found guilty of aggravated abuse of a child, a first-degree felony. Adjudication was withheld and Petitioner was sentenced to one year of probation. As a condition of her probation, Petitioner was required to participate in an anger management program. She completed this requirement. In December 2002, Petitioner violated her probation by using marijuana. For this violation, her probation was extended another six months. On or about October 11, 2011, Petitioner was detained for retail theft and was charged with petit theft. The only official document in the record, other than Petitioner's application, is a comprehensive case information system record entry stating that the court withheld adjudication on this charge.4/ The record does not show that Petitioner pled guilty or nolo contendere to this offense. Evidence Adduced at the Final Hearing Petitioner testified regarding her disqualifying offense. According to Petitioner, she had a disagreement with her neighbor and her neighbor's daughter. A few days later, when she went to the store, her neighbor and her neighbor's daughter accosted her in the parking lot and physically attacked her, so she defended herself. She acknowledged in her testimony at the final hearing that the physical altercation had occurred and that she had been arrested and charged with aggravated child abuse. However, she claimed that her public defender had agreed to a guilty plea without her concurrence, and that adjudication had been withheld for that charge. She insisted that had she understood that "withholding adjudication" entailed entering a guilty plea, she would not have agreed to that course of action. Due to having committed the disqualifying offense, Petitioner lost her employment. She testified that she became depressed and used marijuana. She acknowledged that in doing so, she had violated her probation. She testified, credibly, that she has not used drugs since 2003. There is no evidence to the contrary in the record. Petitioner acknowledged that she was arrested for petit theft in 2011, but she testified, credibly, that she did not steal anything. She explained, persuasively, that she had gone to the store with her neighbor and that when they arrived, they went their separate ways. As they left the store together, the store's security personnel detained them and accused them of shoplifting. Petitioner's neighbor, had, in fact, shoplifted items, and ultimately was required to pay restitution; however, Petitioner was not so required. The undersigned finds Petitioner's testimony regarding the 2011 petit theft incident credible. Petitioner has completed formal training in specialized types of medical care. She is a certified phlebotomist, a certified medical assistant, and a patient care technician. She is also certified or has taken courses in Basic First Aid/CPR/AED for adults and children, recognizing and reporting elder abuse, patients' rights, medical documentation, and American Heart Association Basic Life Support. In 2015, Petitioner received an exemption from disqualification from employment from the Agency for Health Care Administration ("AHCA"), and currently is eligible to be employed as a direct or indirect service provider for programs for vulnerable persons administered by that agency. However, she is seeking an exemption in this proceeding specifically so that she can be employed in a position working with disabled individuals. Petitioner testified, credibly, that she has not had any additional encounters with the criminal justice system since receiving the exemption from AHCA, and there is no evidence to the contrary in the record. Jacqueline Snyder testified regarding Petitioner's character, compassion, and competence in caring for her (Snyder). Snyder met Petitioner when she nursed Snyder's husband. After Snyder's husband passed away, Snyder was able to procure Petitioner's services through a home health agency, and then through a private contract arrangement. In that role, Petitioner helped care for Snyder during an illness, and assisted Snyder in performing a range of daily life activities, including bathing, cleaning house, and performing other life-related activities. Snyder spoke glowingly of Petitioner's character and compassion in caring for her. On cross-examination, Snyder acknowledged that she was aware of Petitioner's disqualifying offense, but testified that she believed Petitioner's version of the event and observed that, in any case, AHCA would not have granted Petitioner an exemption if she posed a threat to vulnerable individuals. Allison Scott, Petitioner's neighbor, also testified on her behalf. Scott testified, credibly, that Petitioner is actively engaged in community and church activities, such as conducting clothing drives for children, and that she has a passion for caring for the elderly and disabled. Scott was aware of Petitioner's disqualifying offense, but believes that she deserves a second chance, particularly since that offense happened so long ago. Petitioner's neighbor, Julia Mendez, also testified on Petitioner's behalf. Mendez has been Petitioner's neighbor for over eight years. Mendez testified, credibly, that Petitioner tries to counsel, and serve as a role model for, neighborhood children. She credibly testified that she had never seen Petitioner exhibit the type of behavior with which she was charged in 2001, and that, in her view, Petitioner deserves a second chance. As part of her application for the exemption, Petitioner submitted several letters of support which supplement, explain, and support the testimony presented by Snyder, Scott, and Mendez. The letters from persons for whom Petitioner has previously cared for described her as a competent, organized, compassionate, reliable, and trustworthy caregiver. A letter from Worldwide Support Services Corporation, a Medicaid waiver provider, through whom Petitioner provided services, described Petitioner as understanding, helpful, compassionate, caring, efficient, detail-oriented, extremely competent, and an asset to the industry. Tom Rice testified on behalf of Respondent. Rice has been employed by Respondent for approximately 15 years and currently serves as a program administrator over regional supports within Respondent's Division of Operations. In this position, he oversees, among other things, the processing of background screening exemption requests. Rice explained that in reviewing an application for exemption to determine whether the applicant is rehabilitated, Respondent considers the applicant's version of events and considers whether the applicant has accepted responsibility for, and is remorseful, honest, and forthright regarding, the disqualifying offense and any subsequent offenses; and whether, since the disqualifying offense, the applicant has been a good, law-abiding citizen. Respondent also reviews the applicant's arrest reports, court records, letters of recommendation, confidential investigative summaries prepared by the Department of Children and Families investigators ("CIS reports"), and traffic records. After reviewing Petitioner's application, Respondent determined that Petitioner's request for an exemption should be denied. Rice explained that Respondent's decision was based on several factors. First, Respondent was concerned about the nature of the disqualifying offense because it entailed a crime of physical violence.5/ Rice noted that many of Respondent's clients may be prone to physically violent behavior, or may themselves be vulnerable to physically violent caretakers. Second, Rice testified that in Respondent's view, Petitioner's versions of her disqualifying offense and the 2011 petit theft offense,6/ as described in the application, were different from the descriptions in the complaint/arrest affidavits in her criminal record. Rice testified that in Respondent's view, these differences indicated that Petitioner did not take responsibility for her actions in having committed these offenses. Rice also noted the existence of "multiple" CIS reports discovered during the background screening of Petitioner, including one CIS report that showed "some indicator" of financial exploitation of vulnerable adults.7/ Rice stated that these reports caused Respondent concern that Petitioner may be physically violent toward, or exploitive of, Respondent's developmentally disabled clients. Rice noted that Petitioner's background screening also showed that Petitioner had a traffic infraction involving driving on a suspended license, which, in Respondent's view, indicated Petitioner's failure to abide by the law. Rice stated that Respondent did not give any significant weight to the letters of reference that Petitioner submitted as part of her exemption application because none of those letters was from an employer, and all of them were from friends or family members. However, on redirect examination, Rice acknowledged that the record did, in fact, contain letters of reference from persons and entities other than friends and family. He did not testify, however, that Respondent duly considered these letters of reference in evaluating Petitioner's application for an exemption. In response to a question from Respondent's counsel, Rice testified that he was concerned about Petitioner's behavior exhibited during the final hearing——specifically, that Petitioner vehemently denied having voluntarily pled guilty to the disqualifying offense, vehemently denied having engaged in any kind of abusive behavior giving rise to the CIS reports, and vehemently denied that she herself had engaged in shoplifting that led to the petit theft charge. Rice noted that dealing with developmentally disabled persons is often stressful and that he would be concerned that because of her display of emotion at the final hearing, Petitioner would not be able to exhibit a calm demeanor when dealing with developmentally disabled clients. Findings of Ultimate Fact Upon a careful and considered review of the competent substantial evidence in the record of this proceeding, the undersigned determines that Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense. The undersigned recognizes that Petitioner's disqualifying offense was a crime involving physical violence. However, as noted above, over 17 years have elapsed since Petitioner committed her disqualifying offense, and she has not been arrested for, or charged with, any crimes involving physical violence since that time. The undersigned finds that Petitioner's non-violent conduct for the past 17-plus years——which included periods during which she cared for elderly persons who were limited in their life activities——constitutes strong evidence that she can be trusted to deal with vulnerable persons in a non-violent manner. The undersigned does not find Petitioner's version of the disqualifying offense presented at the final hearing inconsistent with the applicable complaint/arrest affidavit in the exemption application file. To the contrary, Petitioner acknowledged that she had engaged in a physical altercation with her neighbor's daughter and expressed regret at having done so. However, as she was entitled to do, she also sought to explain the circumstances surrounding her disqualifying offense and to further explain that she did not intend to plead guilty and would not have done so had she understood that such plea was being entered by her attorney. Additionally, as noted above, the undersigned finds credible Petitioner's version of the circumstances surrounding her arrest in 2011 for petit theft. The undersigned does not agree that Petitioner's attempt to explain the circumstances surrounding this arrest as failing to take responsibility for her actions. To this point, as discussed above, the "police report" to which Rice referred in his testimony was not part of Petitioner's application file. Rather, the document to which Rice referred concerned an arrest that occurred on July 28, 1989.8/ That document does not support the position that Petitioner failed to take responsibility for her 2011 offense. The undersigned finds Petitioner's explanation of her 2011 offense credible, and finds Rice's testimony unpersuasive because it is not supported by other evidence in the record. Additionally, the CIS reports in Respondent's Exhibit 2 do not constitute competent substantial evidence of Petitioner's lack of rehabilitation in this proceeding. Those reports are hearsay that does not fall within any exception to the hearsay rule, so they cannot be used as the sole basis for finding that any of the events specifically addressed in the reports happened or that any of the statements contained in those reports is true.9/ § 120.57(1)(c), Fla. Stat. Because Respondent did not present any other evidence independently establishing the occurrence or truth of any of the matters addressed in the CIS reports included in Respondent's Exhibit 2, neither they nor Rice's testimony about them are afforded any weight in this proceeding. It is further noted that in 2015, Petitioner received an exemption from AHCA, which also conducts level 2 background screening to determine whether an applicant would constitute a danger to children and vulnerable adults. AHCA's determination that Petitioner would not pose a danger to such vulnerable persons, while not determinative in this case, is probative and is persuasive evidence that Petitioner is rehabilitated from her disqualifying offense. Finally, it is noted that at the final hearing, Petitioner vehemently denied that she had engaged in any conduct addressed in the CIS reports, and she displayed strong emotion while explaining the circumstances surrounding her disqualifying offense and the 2011 petit theft arrest. The undersigned does not find Petitioner's conduct at the final hearing indicates that she would engage in physically or emotionally violent conduct while working with Respondent's clients. Rather, the undersigned finds Petitioner's non-violent conduct over the past 17-plus years to be far more indicative of her future behavior than her emotional responses to cross-examination10/ during the final hearing. In sum, the competent, substantial, and persuasive evidence in the record of this proceeding establishes that Petitioner is rehabilitated from her disqualifying offense, and that she will not present a danger to developmentally disabled individuals if her request for an exemption from disqualification from employment is granted. Because the evidence establishes that Petitioner is rehabilitated from her disqualifying offense, the undersigned determines that denial of her request for an exemption would constitute an abuse of Respondent's discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order granting Petitioner's request for an exemption from disqualification from employment. DONE AND ENTERED this 30th day of May, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2018.
Findings Of Fact The Petitioner is University General Hospital, Inc. (hereinafter "UGHI"), the present license holder of University General Hospital (hereinafter "University Hospital"), a 140-bed general acute-care hospital located in Seminole, Florida. During calendar years 1989 and 1990 and until July 30, 1991, University Hospital operated as a division of Community Health Investment Corporation f/k/a/ CHS Management Corporation (hereinafter "CHIC"). On July 30, 1991, UGHI was incorporated as a wholly-owned subsidiary of CHIC and became the license holder of University Hospital. University Hospital's change in licensure on that date did not change its ownership, control, management, reporting, or operation. On or about December 2, 1991, UGHI timely filed Certificate of Need (hereinafter "CON") Application No. 6851 to convert 12 general acute-care beds to hospital-based skilled nursing beds. As of the date of filing its CON application, UGHI was the license holder of University Hospital and complied with the definition of "Applicant" set forth in Rule 10-5.002(3), Florida Administrative Code. Prior to submission of CON Application No. 6851, UGHI retained John Gilroy of the law firm Haben, Culpepper, Dunbar & French to serve as legal counsel for the CON project. In his initial dealings with UGHI regarding compliance with the requirements of Section 381.707(3), Florida Statutes, Gilroy learned that audited financial statements previously prepared for University Hospital while it was a division of CHIC could be reissued for UGHI. Gilroy then contacted Elizabeth Dudek, Director of the Department of Health and Rehabilitative Services (hereinafter "HRS") Office of Community Health Services and Facilities, to inquire whether the proposed audited financial statements (i.e., the reissued statements) would comply with the applicable statutory requirements. Dudek suggested that Gilroy direct his inquiry to Roger Bell, an Audit Evaluation and Review Analyst with the HRS Office of Community Health Services and Facilities. In conducting her responsibilities, Dudek relies upon the opinions of experts, and Bell is the most qualified person in the HRS Office of Community Health Services and Facilities to render an opinion regarding hospital audited financial statements. Among Bell's responsibilities is advising Dudek whether CON applicants' financial statements should be accepted or rejected. At that time or soon thereafter, Gilroy had at least one telephone conversation with Bell wherein he informed Bell that UGHI had been in existence for less than one year and inquired whether the proposed reissued audited financial statements would be acceptable to HRS. Bell's response to Gilroy was that he was not aware that audited financial statements could be reissued in the manner proposed by UGHI, but if Arthur Andersen & Co. could prepare such a document, he expected that it would be acceptable. Additionally, Bell indicated to Gilroy that a balance sheet audit would not give HRS sufficient financial information and that it would be beneficial if he could look at reissued audited financial statements to conduct a more in-depth analysis. Bell did not inform Gilroy of any HRS policy regarding the types of audited financial statements HRS would accept from applicants in existence for less than one year. Following his discussion with Bell, Gilroy sent a letter to his client dated November 20, 1991, indicating that Bell agreed that the reissued statements would be acceptable and that Arthur Andersen & Co. should prepare such statements prior to January 17, 1992. In a letter dated December 12, 1991, Gilroy asked Bell to confirm HRS' position regarding reissued audited financial statements in writing, consistent with their prior conversation. In a letter dated December 16, 1991, Bell reiterated to Gilroy that "if Arthur Andersen is assuming the liability for this assertion, then it is probably in order," and also stated that "[u]nless a concern appears in the auditor's reports or notes, I do not foresee any problem." The letter did not refer to any HRS policy regarding the types of audited financial statements HRS would or would not accept from corporations in existence for less than one year. After receipt and review of Bell's December 16 letter, Gilroy remained under the impression that reissued audited financial statements would be acceptable to HRS provided they were properly executed and signed and had appropriate notes. In a letter dated December 19, 1991, HRS identified certain items of information omitted from UGHI's initial application (commonly referred to as an "Omissions Letter"), including, among other items, audited financial statements of the applicant. On that same date, HRS also sent an Omissions Letter to Edward White Hospital, Inc., an applicant in the same application review batch as UGHI. The Omissions Letter sent to Edward White Hospital, Inc., included a section as follows: If an applicant, due to non-existence as an entity, has not completed a fiscal year of operation, the applicant will submit an audited financial statement in which the balance sheet date falls within the period which begins on the first day of its existence as a legal entity and ends on the date of the applicant's choosing, provided the audited financial statement is available and included with the application during or before the end of the omissions process. Had a similar statement been contained in the UGHI Omissions Letter, Gilroy would have approached HRS to determine whether UGHI's proposed audited financial statements were acceptable notwithstanding this policy. After his review of the UGHI Omissions Letter, Gilroy remained under the impression that reissued statements would be acceptable to HRS if prepared in accordance with accounting and auditing standards. According to Dudek, HRS did not reveal its policy regarding entities in existence for less than one year in the UGHI Omissions Letter because HRS had not been provided with information prior to the issuance of the letter that UGHI was an entity that had been in existence for less than one year. Prior to the Omissions Letter, HRS was, however, informed both orally and in writing that UGHI had been in existence for less than one year. On or about January 15, 1992, UGHI timely filed its response to the Omissions Letter and included a document entitled "UNIVERSITY GENERAL HOSPITAL, INC. (A WHOLLY-OWNED SUBSIDIARY OF COMMUNITY HEALTH INVESTMENT CORPORATION) FINANCIAL STATEMENTS AS OF DECEMBER 31, 1990 AND 1989 TOGETHER WITH REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS." In a letter dated January 28, 1992, HRS notified UGHI that its CON application was being administratively withdrawn from consideration for the sole reason that it did not contain audited financial statements of the applicant, University General Hospital, Inc. The purpose of audited financial statements from the standpoint of HRS' review of CON applications is that they provide HRS with a basis to determine the overall financial strength and financial position of the applicant and the applicant's ability to carry out the project being proposed. HRS requires that the financial statements be "of the applicant" because it looks to the source of funding and financial strength of the entity responsible for funding the project--the party submitting the CON application. The audited financial statements submitted by UGHI reflect the resources available to it for the CON project proposed in CON Application No. 6851 and are appropriate to demonstrate the financial strength of UGHI. The audited financial statements filed by UGHI contain financial documentation for years ending December 31, 1990 and 1989, as well as information through November 13, 1991. The issuance of audited financial statements for an entity incorporating a period of time before that entity's corporate existence (known as "reissuance") is a common practice in the accounting profession and, subject to the entity's ability to satisfy the specified prerequisites, is consistent with pronouncements and standards under generally accepted auditing standards (hereinafter "GAAS") and generally accepted accounting principles (hereinafter "GAAP"). The prerequisites for reissuance of an audited financial statement are adequate disclosure made in the notes of the financial statement and continuance of common ownership, control, management, reporting, and operation of the entity's activities. Prior to issuance of the audited financial statements for UGHI, Arthur Andersen & Co. conducted an extensive post-audit review of UGHI and concluded that the financial statements previously issued to University Hospital could be reissued as audited financial statements of UGHI. Had Arthur Andersen & Co. found that the previously-issued audited financial statements were misleading or that the requirements set forth in GAAS and GAAP were not satisfied, it would not have reissued the audited financial statements on behalf of UGHI. The audited financial statements submitted by UGHI to HRS constitute a valid document prepared in accordance with the pronouncements and standards under GAAS and GAAP. It is the policy of HRS that, if an entity has been in existence for less than one year, HRS will accept only a balance sheet audit as of the date of incorporation, or a short period audit from the date of incorporation through an undefined period of time. HRS' policy is not reflected in any of the statutes, rules, or HRS Manual provisions regarding audited financial statements, and HRS is not in the process of promulgating a rule regarding this policy. HRS' policy applies to all entities submitting CON applications that have been in existence for less than one year. Balance sheet and short period audits are not appropriate documents to assess an entity's financial condition. In many cases, HRS would prefer a reissued audited financial statement to a balance sheet audit in analyzing a CON application. In determining whether an applicant complies with Section 381.707(3), Florida Statutes, HRS will, with certain exceptions, look at whether the definition of "Audited Financial Statement" set forth in Rule 10-5.002(5), Florida Administrative Code, is met. HRS does not apply the definition of "Audited Financial Statement" set forth in Section 10-5.002(5), Florida Administrative Code, to applicants in existence for less than one year. The definition it applies to these entities is not set forth in any rule, statute, or HRS Manual provision. A balance sheet audit does not comply with the definition of "Audited Financial Statement" set forth in Rule 10-5.002(5), Florida Administrative Code. The audited financial statements filed by UGHI comply with the definition of "Audited Financial Statement" set forth in Rule 10-5.002(5), Florida Administrative Code. Rule 10-5.008(5)(g), Florida Administrative Code, identifies those audited financial statements satisfying the rule definition of "Audited Financial Statement" that HRS will not accept. HRS explains the exceptions set forth within Rule 10-5.008(5)(g), Florida Administrative Code, on the basis that these audited financial statements reflect financial documentation of an affiliate entity. The audited financial statements submitted by UGHI are not a combined audit, a consolidated audit, or an audit of a division, as prohibited under Rule 10-5.008(5)(g). From an accounting standpoint, the audited financial statements submitted by UGHI are those of UGHI. An accounting firm typically identifies the entity being audited on the title page of the audited financial statements and in the audit report and financial statements contained therein. The title page of, and audit report and financial statements in, the audited financial statements prepared by Arthur Andersen & Co. for UGHI all reflect that the entity being audited is UGHI. An accounting firm faces significant liability if the audited financial statements it prepares are found to be inaccurate or misleading. HRS does not dispute, and in fact agrees, that the audited financial statements prepared by Arthur Andersen & Co. for UGHI were correctly issued and are consistent with GAAS and GAAP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered accepting Certificate of Need Application No. 6851 filed by University General Hospital, Inc. for review in the nursing home batching cycle in which it was filed. RECOMMENDED this 20th day of July, 1992, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1838 Petitioner's proposed findings of fact numbered 1-54 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4-6 have been rejected as not being supported by the weight of the competent evidence in this cause. COPIES FURNISHED: Gerald M. Cohen, Esquire Steel Hector & Davis 4000 Southeast Financial Center Miami, Florida 33131-2398 Richard Patterson Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Case No. 56-1336 commenced with the Department's Administrative Charges And Complaint with Notice of Rights, dated February 19, 1986. The Department's charges and complaint informed Structured Shelters Financial Management, Inc., ("SSFM") and Structured Shelters Securities, Inc., ("5551") of the Department's intention to revoke the registrations of these two corporations for various violations of Chapter 517, Florida Statutes, and violations of rules of the Department, which violations were alleged with specificity in the Department's charges and complaint. The two corporations filed a request for hearing in which they assert that there have been no violations, and in which they dispute both factual allegations and legal conclusions set forth in the Department's charges and complaint. Case No. 86-1553 commenced with the Department's Cease and Desist Order and Notice of Rights dated February 19, 1986. The Department's cease and desist order has the effect of ordering Structured Shelters Financial Management, Inc., ("SSFM"), Structured Shelters Securities, Inc., ("5551"), Robert Iles, and Monica Iles to cease and desist from various activities which are alleged to be violations of Chapter 517, Florida Statutes. The two corporations and the two individuals filed a request for hearing in which they assert that there have been no violations, and in which they dispute both factual allegations and legal conclusions set forth in the Department's cease and desist order. Following the hearing in these consolidated cases, a transcript of the proceedings at the hearing was filed on October 20, 1956, and on November 10, 1986, all parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposed recommended orders have been carefully considered in the preparation of this Recommended Order. A specific ruling on each finding of fact proposed by each party is contained in the Appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact. SSFM is an investment advisor holding License Number 53839, issued by the Department effective December 13, 1982. SSFM is not registered as a dealer pursuant to Section 517.12, Florida Statutes, to sell securities in Florida. Robert E. Iles, Sr., is the President and Director of SSFM and Monica Iles is the Treasurer and Director of SSFM. Robert Iles, Sr., is a Director of 5551 and Monica Iles is the Secretary and Treasurer of 5551. The Department only reviewed the records and files of SSFM. No review was made of any records of 5551. No formal complaints have ever been filed with the Department against SSFM or 5551. No one has requested that SSFM refund the purchase price of any of the corporate business plans. SSFM's books, records, and financial statements were current through July 31, 1984. SSFM did not provide any investment advisor services subsequent to July 31, 1954. Since July 31, 1954, SSFM has not maintained its books and records in accordance with Department rules. SSFM also did not maintain customer files or copies of advertising materials. SSFM has failed to keep certain records required by applicable rules promulgated by the Department, and certain records that are required have not been kept current, as is also required. Specifically, the cash receipts and disbursements journal, general ledger, and trial balance have not been made current since July 31, 1984. No records have been kept in the following categories: correspondence with clients concerning recommendations, receipts, disbursements, or placing of orders, in the clients' files and advertising and promotional materials. The purpose of these requirements is to assure that the investment adviser can meet its obligations to creditors and customers. The principal reason SSFM has not maintained up-to-date books and records since July 31, 1954, is that it has had no business activity since that date other than some efforts to collect accounts receivable. SSFM does not advertise. SSFN does not maintain customer files because it renders no investment advice. There is no evidence that SSFM has not met all of its obligations to creditors and customers. Capital Requirement Because SSFM did not maintain books and records since July 31, 1984, the Department could not determine whether SSFM maintained net capital of $2,500. The purpose of the net capital requirement is to protect clients of the investment adviser. There have been no formal complaints filed by clients of SSFM. SSFM has suspended its investment adviser operations since July 31, 1984. SSFM has in fact maintained net capital of at least $2,500 since July 31, 1984. Annual Report SSFM did not file its annual financial report due within 90 days of July 31, 1984, as required by Department rules. The purpose of this requirement is to monitor compliance with the net capital requirements since the Department cannot audit all investment advisers each year. SSFM did not provide investment advice during the year for which it did not file the annual report. Since SSFN is inactive, the certified public accountants have given active companies a priority in filing tax returns and making other financial reports. Registered Principal SSFM's registered principal withdrew November 21, 1983, and no new principal has been registered. SSFM has not provided investment advice since that time. Civil, Criminal and Administrative Actions SSFM was incorporated as a Delaware corporation in October of 1982 and is not a successor to any other corporation. SSFM has not reported to the Department any civil, criminal, or administrative charges filed against it relating to its activities as an investment adviser. The states of Idaho, Kansas, Missouri, and Pennsylvania had responded to SSFM's application for an investment adviser license by noticing an intent to deny such permit. None of those states served any complaint of any civil, criminal, or administrative charges against SSFM independently or in connection with those applications. Three civil actions have named SSFM a Defendant. The alleged actions giving rise to the Tax Awareness of New Mexico, Inc., complaint occurred on June 22, 1982. The action filed by Harold J. St. Clair, et al., in Ohio involved alleged actions occurring prior to July 9, 1982. David Elsworth and James Morrison filed a complaint involving alleged actions which occurred between February and July 1982 and in fact does not name SSFM as a Defendant. All of the alleged actions giving rise to the three civil actions occurred prior to SSFM's coming into existence. Those actions do not directly or indirectly relate to SSFM's activities as an investment adviser. The legal actions appear to be frivolous as to SSFM because SSFM was not in existence at the time of the events alleged in the legal actions. Corporate Business Plans At one time SSFM marketed corporate business plans called Super Swirl, Inc., Random Processing Services, Inc., and Children's Classic Cassette Master Recordings. No purchaser of any of these corporate business plans has lost any money or filed any legal actions against SSFM. SSFM, which was originally domiciled in Cincinnati, Ohio, contacted the regional office of the Securities and Exchange Commission prior to marketing the corporate business plans and was told that the plans were not securities. All of the plans were prepared prior to 1984. SSFM has not sold a plan since 1984. SSFM moved to Florida in September 1984. No business plans have been formed in Florida. SSFM sold no business plans in Florida. Changes in tax laws have made the business plans obsolete and they could no longer be offered. One client was invoiced to a Florida address. That client was an Ohio resident who purchased the plan while SSFM was domiciled in Ohio and who in fact picked up the business plan and invoice from SSFM in Ohio. For the convenience of the Ohio resident, SSFM put a Florida billing address on the invoice. Neither the invoice nor the business plan was delivered in Florida by SSFM. There is no evidence that a Mr. Benjamin was a Florida resident when he purchased his business plan. SSFM prepared its corporate business plans at the request of various professionals such as attorneys, accountants, and financial planners who would use them for their clients. No business plan is dependent upon another, although subsequent plans were an outgrowth of the first one. The type of entity to be used is up to the purchaser of the plan. The purchaser does not have to follow the plan and SSFN has no control over modifications. Super Swirl Sales, Inc. In this plan it is made clear that the incorporator (purchaser of the plan) is responsible for its implementation, and the success of the plan is contingent upon his proper administration. Under this plan, the purchaser is to purchase frozen confection machines and lease them to various retail establishments. The corporation established under the business plan would not have to purchase its machines from a particular vendor. The corporation would determine the location for the machines. The corporation would also decide how many machines to purchase. The Super Swirl machines were manufactured by a company unrelated to SSFM. The corporation determines the amount of capital to raise. It is the responsibility of the corporation to determine whether the offering of its stock is a transaction that requires registration. The plans only recommend services of other companies, some of which may be affiliated with SSFM, but do not require them. Random Processing Services Under this plan the purchaser (dealer) would set up a computer based financial management system and would obtain retail clients. The in-house computer would be tied into a larger computer system operated by Random Processing Services, Inc. The purchaser does not have to use Random Processing Services, Inc., and could go to someone else for those services. The dealer determines the amount to charge his clients depending upon what the local market will bear. The efforts of the dealer determine his share of the market, with his knowledge and desire to service clients as the most important aspect for penetrating the market place. The geographical area to be served by dealer is his decision. Dealers do not depend upon leads for clients from any other entity. Children's Classic Cassette Master Recordings Under this plan the purchaser would establish a business to prepare a master recording of a children's classic book (stories that are no longer covered by a copyright) and to lease that recording for retail distribution. The success of the plan is contingent upon proper administration by the corporation. It is the corporation's responsibility to determine if the offering of its stock is regulated. The plan provides: The plan is a guideline and is not intended to be a set of rules or regulations that are not subject to approved changes. Changes are at the discretion of the incorporator and his advisers. They can change or totally eliminate part of the entire plan if they deem it necessary. As such, the incorporator or elected officers are solely responsible for the implementation of the plan. Actual cost of the properties and overhead expenses are determined by the purchaser of the plan, as is the sale price of the stock. The purchaser determines which title to make into the master cassette, picks the script writer, and picks the person to do artwork. All of the business plans require substantial efforts on behalf of the purchaser.
Recommendation Based on all of the foregoing, it is recommended that the Department enter final orders in these cases to the following effect: In Case No. 86-1336, the final order should dismiss the allegations alleged in Counts I, II, VII, and VIII of the Administrative Charges And Complaint; should find SSFM guilty of the violations alleged in Counts III, IV, V, and VI of the Administrative Charges And Complaint; and should suspend the registration of SSFM until such time as SSFM has corrected the deficiencies of which it has been found guilty. In recommending suspension in lieu of revocation, 1 have given great weight to the fact that there is no evidence that any harm has been suffered by any client or customer of SSFM as a result of the violations proved in this case. In Case No. 86-1553, the final order should dismiss the cease and desist order. DONE AND ENTERED this 18th day of December, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH 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 18th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1336, 86-1553 The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Rulings on findings proposed by the Department in Case No. 56-1336 Paragraph 1, including its subparagraphs (a), (b), (c), (d), and (e): Rejected because not supported by competent substantial evidence. As noted in Section 120.57(1)(b)7, Florida Statutes, "Findings of fact shall be based exclusively on the evidence of record and on matters officially recognized." The pleadings in this case were not offered in evidence. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: Rejected. The statements in this para- graph are conclusions of law and not proposed findings of fact. Paragraph 5: An essentially true statement, but subordinate and unnecessary as a finding of fact. Paragraph 6: Rejected on several grounds. First, it is a summary of testimony rather than proposed findings. Second, it is a conclusion of law rather than proposed findings of fact. Finally, the conclusion is not warranted by the evidence. Paragraph 7: Rejected as constituting a conclusion of law rather than a proposed finding of fact. Also, to the extent this paragraph might be considered to be an opinion-type ultimate fact, it is rejected as contrary to the greater weight of the evidence. Paragraph 5: The first sentence of this paragraph is rejected as constituting a conclusion of law and not a proposed finding of fact. The second sentence of this paragraph is accepted. Paragraph 9: Accepted. Paragraph 10: Accepted. Paragraph 11: The first sentence is accepted in substance up to the first comma in the sentence. (More extensive findings about litigation involving Structured Shelters Financial Management, Inc., have been made.) The portion of the first sentence following the first comma is rejected as constituting a conclusion of law. The second sentence in this paragraph is rejected as constituting commentary about the nature of the record and not constituting proposed findings of fact. Paragraph 12: Accepted. Paragraph 13: Accepted in substance, with modifi-cations in the interest of accuracy. Paragraph 14: Accepted. Paragraph 15: Rejected in part because it is more in the nature of a conclusion of law than in the nature of a finding of fact and rejected in part because it is based on inference not fully supported by the evidence. Paragraph 16: Rejected in part because it is more in the nature of a conclusion of law than in the nature of a finding of fact and rejected in part because not supported by persuasive competent substantial evidence. Rulings on findings proposed by the Department in Case No. 56-1553 Paragraph 1, including its subparagraphs (a), (b), and (c): Rejected because not supported by competent substantial evidence. The pleadings in this case were not offered in evidence. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: Rejected. The statements in this paragraph are conclusions of law and not proposed findings of fact. Paragraph 5: An essentially true statement, but sub- ordinate and unnecessary as a finding of fact. Paragraph 6: Rejected on several grounds. First, it is a summary of testimony rather than proposed findings. Second, it is a conclusion of law rather than proposed findings of fact. Finally, the conclusion is not warranted by the evidence. Paragraph 7: Rejected as constituting a conclusion of law rather than a proposed finding of fact. Also, to the extent this paragraph might be considered to be an opinion-type ultimate fact, it is rejected as contrary to the greater weight of the evidence. Paragraph 8: The first sentence of this paragraph is rejected as constituting a conclusion of law and not a proposed finding of fact. The second sentence of this paragraph is accepted. Paragraph 9: Accepted. Paragraph 10: Rejected in part because it is more in the nature of a conclusion of law than in the nature of a finding of fact and rejected in part because it is based on inference not fully supported by the evidence. Paragraph 11: Rejected in part because it is more in the nature of a conclusion of law than in the nature of a finding of fact and rejected in part because not supported by persuasive competent substantial evidence. Rulings on findings proposed by the corporate and individual parties The vast majority of the findings of fact proposed by the corporate and individual parties have been accepted, some with a few minor editorial changes in the interest of clarity and accuracy. The few that have been rejected are listed below along with the reasons for rejection. Proposal 4: Rejected as irrelevant and unnecessary details. Proposal 5: Rejected as irrelevant and unnecessary details. Proposal 75: Rejected as contrary to the greater weight of the evidence; twenty of the plans were sold. COPIES FURNISHED: Martin S. Friedman, Esquire MYERS, KEVIN, LEVINSON & RICHARDS 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Robert K. Good, Esquire Senior Attorney Office of Comptroller Suite 501 400 West Robinson Street Orlando, Florida 32501 Hon. Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301
The Issue The primary issue for determination is whether the bid of Intervenor, in response to Respondent's invitation to bid, is non-responsive. Secondary issues to be resolved include Petitioner's legal standing to protest all recommended awards to Intervenor in all the bid's categories where intervenor was deemed the successful bidder; whether Intervenor is an operational division of a corporation authorized to conduct business within the State of Florida; whether Intervenor satisfied bid requirements for submission of a valid manufacturer's certificate; and whether intervenor satisfied bid requirements involving identification of a service coordinator and provision of a list of service representatives in the State of Florida for the computer equipment which is the subject of the bid.
Findings Of Fact Respondent issued an Invitation To Bid (ITB) for microcomputers, Bid No. 129-250-040-B, on February 19, 1990. The ITB was revised by a March 22, 1990 addendum which established April 9, 1990, as the date for opening bid responses with bid tabulations to be posted on May 7, 1990. The purpose of the ITB was to establish a twenty-four (24) month contract for the purchase of microcomputers and equipment by all State of Florida agencies and other eligible users. Political subdivisions of the State of Florida, as well as state universities, could exercise the option of purchasing from the contract, if they so desired. The ITB invited bids in several categories of microcomputer equipment. Petitioner's timely filed written protestaddresses 17 of those categories where Intervenor was determined by Respondent to be the successful bidder. Those categories are numbered 255, 256, 257, 258, 259, 260, 266, 267, 268, 269, 271, 272, 273, 275, 276, 277, and 278. However, the bid tabulation posted by Respondent on May 7, 1990, establishes that Petitioner was the next lowest bidder in only four of the 17 categories. Those four categories are 266, 267, 268, and 269. In accordance with Paragraph 13 of the ITB general conditions, all corporations responding to the ITB were required to be registered with the Florida Department of State and authorized to transact business in the state in accordance with requirements of Chapter 607, Florida Statutes. Further, such bidders were required to insert their corporate charter number, resulting from that registration, in the appropriate space in the bidder acknowledgement form provided by Respondent for inclusion in responses to the ITB. Intervenor provided the Department of State Corporate Charter No. 822327 in the bidder acknowledgement form submitted with its response to the ITB. That charter number is assigned by the Department of State to VGC Corporation d/b/a VGC Corporation of Delaware, a corporation organized under laws of Delaware and authorized to transact business in the State of Florida since 1969. Intervenor mistakenly listed, in its bid, the federal employment identification (FEID) number of another subsidiary corporation of VGC Corporation (VGC). The FEID number submitted by intervenor was that of Graphic Arts Supply, Inc., (GAS), acquired by VGC in December of 1986. GAS became a wholly owned subsidiary of VGC at that time and remains such at the present time. At the time of its acquisition, there existed within GAS a particular segment of that business which dealt primarily with computer products. This computer segment of GAS was set up by VGC as a separate division of the parent corporation in November, 1988. The formation of the new division within VGC was announced at that time by the VGC president in an interoffice memorandum which stated in pertinent part: The Computer Products Group of Graphic Arts Supply has grown significantly in the last several years, accounting for approximately 10% of the total corporation's sales. The growth opportunities in this area are enormous and our long term goal is to become one of the major material distributors of computer products in the United States. Accordingly, I am pleased to announce that we will make this operation a separate division, reporting to Tom Mclaughlin. At the time of the issuance of the November 1988 interoffice memorandum, Tom Mclaughlin was a vice-president and subsidiary manager of VGC corporation. Another individual, Pat Mclaughlin, was a VGC vice-president and general manager of the new division, the intervenor in this cause. Another memorandum issued by the VGC president on September 14, 1989, further emphasized that VGC's Business Systems Division, which is also intervenor, was an operating division of VGC. That memorandum stated that the company comprising the Business Systems Division was known as "GA Computer Systems" and further provided in pertinent part that: The Business System Division is an operating unit and not a subsidiary. The Business Systems Division relies on VGC-Rochester for financial and administrative support, and VGC-Florida for all other support and reporting. On the date of Intervenor's response to the ITB, GAS and Intervenor continued to maintain a business relationship. Pursuant to that relationship, GAS provides certain administrative services to Intervenor in the form of certain record keeping and payment of various taxes in the state of New York. Intervenor pays a fee to GAS for these services. Other administrative functions, such as federal and state tax return preparation, are performed by VGC-Rochester and VGC-Florida, other components of VGC. Intervenor's response to the ITB was submitted and signed by John J. Piseck, an employee of VGC who serves as the eastern regional sales manager for Intervenor's computer products. Another of the ITB's general conditions requires that bids from non manufacturers to provide microcomputers must be accompanied by a certification from the manufacturer that the bidder is an authorized representative of the manufacturer. The certification submitted by Intervenor with its bid response was executed by a representative of Hewlett-Packard Corporation, the computer manufacturer, certifying that GA Computer Products is an authorized dealer/representative. On the date of Intervenor's response to the ITB, adealer/representative contract existed between Intervenor and Hewelett-Packard. The agreement was signed on Intervenor's behalf by Patrick Mclaughlin, VGC vice- president and general manager of Intervenor. Page 12 of the ITB special conditions provides in pertinent part that: The bidder shall name a service coordinator and provide a complete list of in-state representatives, and manufacturer's authorized service repair centers on page 19 as part of the bid response. In the course of fulfilling its responsibility to evaluate each vendor's response to the ITB, Respondent accepted either a list of the bidders' own in-state representatives or a list of the manufacturer's in-state representatives as meeting this service requirement of the ITB. Respondent does not, and is not required to, verify information supplied by vendors relating to service locations. Intervenor has fully complied with the ITB requirement relating to naming a service coordinator and providing a list of service representatives and repair centers. Specifically, Intervenor named one of its employees as the service coordinator, provided a toll-free telephone number for communication with the coordinator, and listed five Hewlett-Packard service locations within the State of Florida. These service locations honor the warranties of the manufacturer, Hewlett-Packard, without regard to which Hewlett-Packard dealer sold the product. Intervenor was responsive in all material respects to Respondent's ITB No. 129-250-040-B.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that upon Intervenor's submission of a corrected FEID number, a Final Order be entered denying Petitioner's claims and confirming the award of the contested 17 categories of Respondent's ITB No. 129-250-040-B to GA Computer Products, a division of VGC Corporation. DONE AND ENTERED this 23rd day of July, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 23rd day of July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. Petitioner's proposed findings consisted of 32 pages encompassing unnumbered paragraphs dealing with an intertwined mixture of legal conclusions, argument and proposed factual findings. Therefore, Petitioner's submission cannot be treated by the Hearing Officer in this appendix on an individualized basis for each proposed finding. However, Petitioner's submission has been reviewed and addressed, where possible, by the findings of fact set forth in this recommended order. Otherwise, all disputed issues of material fact have been addressed by the evidence adduced at the hearing held in this cause. Intervenor's Proposed Findings. 1.-32. Adopted in substance. Respondent's Proposed Findings. 1.-2. Adopted in substance. 3.-4. Rejected, unnecessary. 5.-24. Adopted in substance. 25.-27. Rejected, unnecessary. 28. Adopted in substance. COPIES FURNISHED: Thomas F. Morante, Esq. One Biscayne Tower Suite 3750 Two S. Biscayne Boulevard Miami, FL 33131 Susan Kirkland, Esq. Jim Bennett, Esq. Office of General Counsel Department of General Services Suite 309 Knight Building 2737 Centerview Drive Koger Executive Center Tallahassee, FL 32399-0950 Lowell L. Garrett, Esq. 5300 Southeast Financial Center 200 S. Biscayne Boulevard Miami, FL 33131 Ronald W. Thomas Executive Director Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
Findings Of Fact Based upon the joint stipulation of counsel and the pleadings filed in this cause, the following findings of fact are determined: Government Service Supply Corporation (GSSC) was a Florida corporation engaged in the business of supplying federal agencies with office supplies and related items. It was wholly owned by Krista Peterson. On an undisclosed date, Krista Peterson incorporated Aerotek Resources Corporation in the State of Virginia, and that entity became involved in supplying agencies in the State of Florida with general office supplies and computer equipment. Because an unrelated company claimed that the name "Aerotek" infringed on its trademark, on an undisclosed date, Aerotek Resources Corporation changed its name to Tekresources Services Corporation, the petitioner in this cause. David Peterson was formerly the vice-president of GSSC. His relationship to Krista Peterson, if any, is not of record. During the period from July 1, 1991, to November 30, 1993, David Peterson used United States General Services Administration (GSA) supplier contract numbers without authorization. He concealed the lack of authorization to use the numbers by making representations to government purchasing agents that he was authorized to use the GSA supplier numbers. On August 9, 1994, the United States Attorney for the Northern District of Florida filed an information charging David Peterson and GSSC with making a false statement in violation of Title 18, United States Code, Section 1001, a public entity crime. Thereafter, GSSC and Peterson pled guilty to the charge. Judgments of conviction were rendered by the United States District Court for the Northern District of Florida on November 4, 1994. As required by law, on June 12, 1995, Aerotek Resource Corporation made timely notification to respondent, Department of Management Services (DMS), and provided details of the convictions. After conducting an investigation, on July 26, 1996, DMS gave its notice of intent to place petitioner on the convicted vendor list on the theory that petitioner was "related" to GSSC through Krista Peterson's ownership of both corporations. Placement on the list forbids petitioner from doing business with the State of Florida. In mitigation, the parties have agreed that the federal government suffered no loss as a result of these illicit actions, and there was no intent to cause any loss or to sell or provide inferior products to the government. In addition, David Peterson paid a $16,000 fine, petitioner fully cooperated with both the federal government and the DMS in their respective investigations, and petitioner promptly notified DMS of the convictions. Finally, procedures have been implemented which are designed to prevent the recurrence of this conduct. Given these mitigating factors, the parties have agreed that it is not in the public interest to place petitioner on the convicted vendor list. Therefore, the petition should be approved.
