Findings Of Fact The special condition in invitation to bid No. 69-360-240-F that petitioner challenges here provides: PUBLIC ENTITY CRIMES Any person responding with an offer to this invitation must execute the enclosed Form PUR 7068, SWORN STATEMENT UNDER SECTION 287.133(3) (a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES and enclose it with your bid. If you are submitting a bid on behalf of dealers or suppliers who will ship and receive payment from the resulting contract, it is your responsibility to see that copy(s) of the form are executed by them and are included with your bid. Failure to comply with this condition shall result in rejection of your bid. Joint Exhibit No. 1. Under the heading "Bid Conditions," Rule 13A-1.008(2), Florida Administrative Code, incorporates form PUR 7068 by reference, and requires that invitations to bid on term contracts include the form. Challenge Untimely The parties stipulated in their prehearing stipulation as follows: "1. Respondent's Division of Purchasing advertised for competitive bidding for [a term contract for] carpet installed, bid number 69-360-240-F. "2. On or about April 19, 1990, the Division of Purchasing sent to prospective bidders a revised invitation to bid. [Like the original invitation to bid, the revised invitation to bid contained the following language: INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the invitation to Bid, bid selection or contract award recommendation, shall file such protest in form of a petition in compliance with Rule 13A-1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Exhibit No. 5.] "3. The petitioner did not protest any of the terms and conditions of the invitation to bid within 72 hours of its receipt of the invitation to bid. "4. The petitioner timely submitted its bid pursuant to the above- referenced bid solicitation. "5. The bids were opened on May 16, 1990 and on July 23, 1990 the Division of Purchasing posted the official bid tabulation document. "6. The Division of Purchasing determined that the petitioner's bid was non-responsive. "8. On July 25, 1990, the petitioner timely filed its Notice of Intent of Protest with the respondent. "9. On August 3, 1990, the petitioner timely filed its Notice of Formal Written Protest and Petition for Formal Hearing. "10. On August 21, 1990, the petitioner filed a Petition for Administrative Determination of the Validity of Unpromulgated Rule challenging the special condition entitled `Public Entity Crimes' on page four of the invitation to bid." No Future Effect Already superseded in subsequent invitations by a revised version (T.142, 171), any special condition like the one petitioner challenges will soon undergo further change. Effective October 1, 1990, Section 287.133(3)(a), Florida Statutes will be amended to read: * Prior to entering into a contract a person shall file a sworn statement with the contracting officer . . . <<for the calendar year. The department shall adopt by rule a standard sworn statement . . .. The form shall include>> [[on a form to be promulgated by the department by rule, including the following information:]] The name of the person. The business address . . . * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. Chapter 90-33, Sections 1 and 3, Laws of Florida (1990) (language added or deleted by Chapter 90-33). "Only if the responding bidder does not have the [sworn statement on public entity crimes] . . . on file with [respondent's] . Division of Purchasing on or after October 1 this year" (T. 135) must a sworn statement accompany a bid. The amended statute "effective on October 1 allows . . . submission of the public entity crime form document on a calendar year basis. So, it does not have to be submitted with each and every bid." (T. 135.) Petitioner does not anticipate bidding in response to any other of respondent's invitations to bid any time before October 1, 1990. When asked, "Is it Jones' Floor Covering's intention after October 1st, to submit only one sworn statement a year to the Division of Purchasing," (T. 95) Rocky Wayne Jones, a vice- president in petitioner's employ, answered, "Whatever we need to do, that's what we will do to be able to bid on State work. If that's what the law is, then we will do what the law says to do." T. 95.
The Issue Whether Florida Administrative Code Rules 2B-1.0025(3), (5), and (7) and 2B-1.0027(3) are valid exercises of delegated legislative authority.
Findings Of Fact Petitioner is a political entity subject to the regulations set forth in Chapter 106, Florida Statutes. Petitioner is the subject of certain complaints and several investigatory proceedings initiated by Respondent. The aforementioned complaints were determined to be legally sufficient, pursuant to the Florida Administrative Code, and as a result thereof, investigatory subpoenas were issued in accordance with Florida Administrative Code Rule 2B-1.0027(2). The rules subject to Petitioner's challenge, Florida Administrative Code Rules 2B-1.0025(3),(5), and (7), and 2B-1.0027(2), were all subject to and reviewed by legal counsel to the Joint Administrative Procedure Committee of the Florida Legislature pursuant to Subsection 120.54(3)(a)4., Florida Statutes, and were promulgated without Committee objection prior to 1999. The aforementioned investigatory subpoenas served upon Petitioner were challenged by Petitioner, pursuant to Florida Administrative Code Rule 2B-1.0027(2). The challenge was heard by Respondent's Chair via telephone conference call on January 9, 2006, and the subpoenas were upheld by the Chair. Petitioner has been, and continues to be, subject to the provisions and operations of the rules that are the subject of this proceeding and is, thus, substantially affected by said rules. Accordingly, Petitioner has standing to maintain this proceeding.
The Issue The ultimate issue for determination is whether the Department of Environmental Protection should award attorney's fees and costs to G.E.L. Corporation pursuant to Section 120.595, Florida Statutes (2002).
Findings Of Fact At all times material hereto Petitioner was an inmate incarcerated at Union Correctional Institution within the custody and control of the State of Florida, Department of Corrections. Respondent stipulated at final hearing that Petitioner has "standing" to maintain the rule challenge proceeding. The parties also stipulated that the rule under challenge in this proceeding is a rule adopted by Respondent in accordance with the settlement reached in a previous administrative rule challenge proceeding in which Petitioner was a party. The parties further stipulated that ". . . inmates within the Respondent's care enjoy meaningful access to the courts." There are presently approximately 2,500 inmates incarcerated at Union Correctional Institution. There is one Xerox machine located in the law library at Union Correctional Institution, and the librarian has two inmate clerks assigned to assist in the operation of the library. There is insufficient money in the library budget to fund either additional copying machines or additional personnel to assist in copying materials other than those authorized under Respondent's rule.
Findings Of Fact Based upon the stipulation of the parties, the following facts are found: Respondent, (hereafter HRS) notified Petitioner (hereafter Starke) of a disallowance in Starke's Medicaid cost report by a letter which was received by Starke on October 4, 1983. The disallowance letter informed the Petitioner that pursuant to Rule 10-2.35, Florida Administrative Code, any request for a formal hearing must be "received by" HRS within 30 days or the hearing shall be deemed waived. Starke mailed its petition for formal hearing on November 3, 1983, a Thursday. The petition was received by HRS on November 7, 1983, a Monday. HRS denied Starke's petition for hearing on the grounds that the request for the hearing had not been received by HRS within 30 days of the date Starke received notice. The date by which the Petition had to be received was November 3, 1983. If HRS had allowed three (3) days for filing by mail, the petition would have been timely filed.
Findings Of Fact On November 4, 1991, the Petitioner, David Lee Moore, filed a Petition for Administrative Determination. In the Petition, the Petitioner challenged Rules 33-3.0082, 33-3.0083, 33-6.009, and 33-3.123, Florida Administrative Code, and P.P.D. 4.07.21. The Challenged Rules govern the following matters: Rule 33-3.0082, Florida Administrative Code, deals with "Protective Management" which is defined as "the removal of an inmate from the general population for the protection of the inmate." Rule 33-3.0082(1), Florida Administrative Code. Rule 33-3.0083, Florida Administrative Code, deals with "Close Management" which is defined as "long-term single cell confinement of an inmate apart from the general population, where an inmate, through his own behavior, has demonstrated an inability to live in the general population without abusing the rights and privileges of other inmates or disturbing the security, order or operation of the institution." Rule 33-3.0082(1), Florida Administrative Code. Rule 33-6.009, Florida Administrative Code, was transferred to Rule 33- 6.0045, Florida Administrative Code, which deals with custody classification of inmates. Rule 33-3.123, Florida Administrative Code, according the Petitioner, deals with inmate telephone use. Apparently, the Petitioner is referring to Rule 33-3.0123, Florida Administrative Code. The Petitioner has alleged that the Challenged Rules constitute an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(d) and (e), Florida Statutes. Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rules are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. The Petition includes the use of legal terms and phrases with little in the way of factual explanation. Although the Petition contains some "legalese, it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. As an example, the Petitioner has alleged in paragraph 13 of the Petition the following: The Petitioner challenges the validity, legality, and constitutionality of the five (5) rules cited, supra; Petitioner submits that these challenged rules, on their face and as applied, are invalid and unconstitutional for the following reasons: The rules violate the Petitioner's Federal and State Constitutional rights to substantive and Procedural Due Process of law, as guaranteed by the 8th and 14th amendments; the [sic] also violates the Petitioner [sic], First, Fourth, Fifth, Eighth, and Ninth, Constitutional Amendment [sic]. They are an invalid exercise of delegated legislative authority contrary to Chapter 120.52(8)(d) & (e), Fla. Statute in that: The rules are vague, fail to establish adequate standards for agency decisions, and, they vest unbridied [sic] discretion in the Agency. The Rules are arbitrary and capricious. The only specific allegations concerning any of the Challenged Rules involve complaints about the Respondent's application of at least some of the Challenged Rules to the Petitioner. For example, in paragraph 29 of the Petition the Petitioner alleges that "33-3.0082 is defective for failure to utilize mandatory language to protect the Petitioner from punitive measures and the agency's actions deprives [sic] the Petitioner of the ability to clearly establish his due process liberty interest . . . ." See also paragraphs 5-8 and 12 of the Petition. The incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings or other actions. In paragraph 12 of the Petition it is alleged "Petitioner contends that the action, acts, omissions, and practise [sic] complained of in the foregoing Petition has [sic] been complained of before . . . ." Having failed to obtain a favorable response to his grievances and other actions, the Petitioner is seeking through this process to have the incidents reviewed. The Petitioner's allegations concerning the alleged incidents are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, alleged actions of the Respondent. The Petitioner has also attempted to raise constitutional arguments to support his challenge. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules are unconstitutional. The only allegation concerning Rule 33-3.0123, Florida Administrative Code, contained in the Petition is that this rule "is intentionally designed to cut off ALL inmates who cannot read or write from communicating with family members as well as friends." No facts to support his argument are alleged and, on the face of this rule, there is no basis for this allegation. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. The Petitioner was informed that the Petition was being dismissed and he was given an opportunity to file an amended petition. The Petitioner did not file an amended petition.
The Issue Whether Florida Administrative Code Rule 15A-9.006(2) (the Rule) is an invalid exercise of delegated legislative authority, pursuant to section 120.52(8)(b), (c), and (d), Florida Statutes.
Findings Of Fact An IID is: A breath alcohol analyzer connected to a motor vehicle's ignition. In order to start the motor vehicle engine, a convicted person must blow a deep lung breath sample into the analyzer, which measures the breath alcohol concentration. If the breath alcohol concentration exceeds the fail point on the [IID], the motor vehicle engine will not start. Fla. Admin. Code R. 15A-9.003(13). Rule 15A-9.005, which is entitled, "Specifications," provides in part: All [IIDs] will be required to meet or exceed the standards set forth in the model specifications published in the Federal Register, Volume 57, No. 67, pages 11772- 11787 by the National Highway Traffic Safety Administration. Technical specifications for the operation and installation of the [IID] shall be described in the contract between [Respondent] and the manufacturer(s). The [IIDs] alcohol fail point shall be the level specified by Section 316.1937, Florida Statutes. Rule 15A-9.005(4), (5), and (6) establishes performance specifications for failed-point tests on initial startup and rolling retests and for an emergency bypass. Rule 15A-9.007, which is entitled, "Certification," provides: Each manufacturer under contract with [Respondent] will submit certification from an independent laboratory certifying that their [IID] has been tested in accordance with the model specifications published in the Federal Register, Volume 57, No. 67, pages 11772-11787 by the National Highway Traffic Safety Administration and the [IID] meets or exceeds those specifications, as well as criteria set forth in the contract with [Respondent]. The manufacturer shall be responsible for the continuing certification of [IID] service providers for use of an approved [IID]. Rule 15A-9.003(6) defines "certification" as the "testing and approval process required by [Respondent]." Rule 15A-9.003(16) defines "manufacturer" as the "actual producer of the [IID] who assembles the product and who may provide distribution and services." Rule 15A-9.003(21) defines "service provider" as the "retail supplier of the approved [IID]." Rule 15A-9.008 addresses the installation and removal of IIDs. Rule 15A-9.008(1) requires the "manufacturer or his [sic] representative" to install the IID in accordance with the guidelines of the National Highway Traffic Safety Administration. Rule 15A-19.008(2) requires the "service provider" to develop and deliver an IID orientation to the convicted person. Rule 15A-9.009 addresses the servicing of IIDs. Rule 15A-9.009(2) requires the "service provider" to service the IID at the intervals stated in the contract with Respondent, calibrate the IID, retrieve data from the IID and timely submit the data to Respondent, and check for signs of tampering with the IID. Rule 15A-9.009(5) requires an IID to record the time and date of each breath test, the breath alcohol level of each test, and the time and date of any attempt to tamper with the IID. Rule 15A-9.009(6) requires the "manufacturer or service provider" to maintain a toll-free 24-hour emergency telephone support service and fix or replace any nonoperational IID within 48 hours of any call. Rule 15A-9.006, which is entitled, "Procedure for [IID] Approval," provides: All ignition interlock devices used pursuant to Sections 316.193 and 316.1937, Florida Statutes, must be approved by the department. The department shall contract with a manufacturer or manufacturers of ignition interlock devices for the services and commodities required for implementation of Sections 316.193, 316.1937, and 316.1938, Florida Statutes. The department shall maintain a list of approved ignition interlock devices. For the specific authority and laws implemented, Rule 15A-9.006 cites the same authority: sections 316.193, 316.1937, and 316.1938, Florida Statutes, and Federal Register Volume 57, Number 67, pages 11772-11787. Section 316.193 imposes penalties for DUI offenses. For second and third DUIs, convicted persons must have installed "an [IID] approved by [Respondent] in accordance with s. 316.1938." Section 316.1937 authorizes a court to order the installation of an IID under circumstances other than those described in section 316.193. Section 316.1937 provides that the court may prohibit the convicted person from operating a motor vehicle unless it is equipped with a "functioning [IID] certified by [Respondent] as provided in s. 316.1938 " The most relevant statute to this case is section 316.1938, which provides: [Respondent] shall certify or cause to be certified the accuracy and precision of the breath-testing component of the [IIDs] as required by s. 316.1937, and shall publish a list of approved devices, together with rules governing the accuracy and precision of the breath-testing component of such devices as adopted by rule in compliance with s. 316.1937. The cost of certification shall be borne by the manufacturers of [IIDs]. No model of [IID] shall be certified unless it meets the accuracy requirements specified by rule of [Respondent]. [Respondent] shall design and adopt by rule a warning label which shall be affixed to each [IID] upon installation. The label shall contain a warning that any person tampering, circumventing, or otherwise misusing the device is guilty of a violation of law and may be subject to civil liability. The document at Federal Register, Volume 57, Number 67, pages 11772, et seq., is a notice of the National Highway Traffic Safety Administration of technical specifications for IIDs (Model Specifications). Model Specifications applies to the manufacture, testing, calibration, data-reporting, and tamper-monitoring of IIDs. IIDs are manufactured by 16 corporations in the United States. Most, if not all, states operate IID programs for DUI offenders. Petitioner is a manufacturer and service provider of IIDs. Its sole manufacturing facility is in Cocoa, Florida, where Petitioner employs 30-35 persons. About 35,000 of Petitioner's IIDs are in use in 25 states, but not Florida. Intervenors, which are affiliated corporations, are manufacturers and service providers of IIDs. (References to Intervenors will include either Intervenor, as appropriate.) Pursuant to the contract described below, Intervenors have provided IID services to over 6000 convicted persons in Florida. Intervenor is a manufacturer and service provider of IIDs and presently operates in 46 states. Respondent has tentatively selected Intervenor as the sole vendor for the state of Florida in the 2013-14 procurement described below. In 2003, Respondent issued an invitation to negotiate for IIDs and IID services. Following a tentative award to Intervenors, a vendor challenged the award, arguing, at least in part, that Respondent lacked the authority to limit the number of IID service providers. In a settlement, Respondent awarded the south region of Florida to Intervenors and the north region of Florida to the bid protestor, which was #1 A Lifesafer, Inc. (Lifesafer). In 2004, Respondent entered into contracts for IIDs and IID services with these vendors. As extended, the 2004 contracts are set to expire on March 31, 2014. Respondent issued a Request for Proposals on July 3, 2013 (RFP). Providing for the replacement of the 2004 contracts described in the preceding paragraph, the RFP is to enable Respondent to select up to two vendors to "implement and operate an [IID] Program" in Florida. RFP Attachment C-19 provides that the term of the new contract(s) shall be five years with an "anticipated" renewal term of another five years.2/ The RFP calls for responses detailing, among other things, the IID hardware by name and model, which must comply with Model Specifications requirements; software to provide Respondent with online access to data downloads from IIDs; installation; service, inspection and monitoring; contractor staffing; training of staff; security and fraud prevention; and transition services for IID convicted persons being serviced by a party to the current IID contract. No one filed a specifications challenge to the RFP. Respondent received four responses; they were from Petitioner, Intervenors, Intervenor, and Lifesafer. Petitioner, Intervenors, and Lifesafer have challenged the tentative award to Intervenor, and these bid protests are pending at DOAH as DOAH Case Nos. 13-3924BID, 13-3925BID, and 13-4037BID. Respondent acknowledges that the procurement of IIDs and IID services by contract provides it more flexibility than if it specified requirements and performance standards by rule. Respondent concedes that other states allow IID service providers to operate IID programs with open competition. Respondent contends that procuring these IID services by statewide or regional contract ensures the delivery of services to rural areas that otherwise might be underserved, the delivery of uniform services throughout the state, the transmission from the IID service provider of compliance data that would be jeopardized if numerous IID service providers operated in the state, the existence of a process for the removal of an IID service provider that did not discharge its responsibilities in a timely and competent fashion, and the familiarity among Respondent's limited staff with the limited makes of IIDs in use in Florida.
Findings Of Fact Standing. The Petitioner, David Ansgar Nyberg, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Petitioner has challenged Rule 33-12.001(2), Florida Administrative Code. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-12.001(2), Florida Administrative Code. Rule 33-12.001, Florida Administrative Code, provides in pertinent part: Prior notice of adoption, amendment or repeal of a rule shall be made available to persons or parties directly affected by the rule as required in 120, F.S. Notice to those directly affected by a proposed rule shall be by: . . . . (b) Publication in the Florida Administrative Weekly at least 14 days prior to any proposed hearing. . . . . (d) Posting by memorandum notice of the intended action on the inmate and personnel bulletin boards of all major institutions, road prisons, community correctional centers, community vocational centers and offices throughout the state directing that complete proposed rules are available in each institutional library or office. A copy of the notice shall be circulated among the inmates in all disciplinary, administrative or close management confinement areas of all facilities.
