The Issue The issue in this case is whether Respondent’s intended award of a lease for office space to a bidder other than Petitioner was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Respondent, on or about May 18, 1998, advertised and released RFP for Lease No. 800:0184 in order to procure approximately 5,000 square feet of office space in Lake City, Florida. Three timely filed proposals were submitted in response to the RFP. One of the submissions was determined to be nonresponsive and rejected. The two other proposals submitted by Petitioner and William and Willene Giles (Giles) were deemed responsive and evaluated by Respondent personnel. Site visits were made to each of the proposed sites. The sites were then evaluated using a numerical scoring system. Respondent’s initial posting of bid results on August 4, 1998, indicated a tentative award of the lease to Giles. Giles received a total score of 88.5 points. Petitioner received the maximum points with respect to cost, but was given only a total of 75.7 points. The RFP clearly requires that a bidder must provide a site layout drawn to scale which indicates the facility location and dimensions of each parking space. Also, the number of parking spaces assigned to other tenants must be identified. A bidder must agree to provide 25 parking spaces on site for use by Respondent. The site plan submitted with the Giles proposal shows five of the required parking spaces are located on property abutting the Giles property. Those five parking spaces do not currently exist on that property. No ingress or egress is shown on the site plan, although such is required by the RFP. The Giles bid should demonstrate requisite control over the adjacent property utilized in that bid. Such is not the case. Documents submitted to indicate control of the property by Giles are deficient. In addition to holders of life estates in the property, fee owners of the property must also agree to use of the property in conjunction with the lease between Giles and Respondent. The evidence does not establish that the fee owners have provided their consent. Testimony of Mary Goodman, an expert witness on behalf of Petitioner, establishes that the Giles’ bid did not demonstrate the requisite control of the property, specifically the parking area, required by the RFP at the time of bid opening. The Giles bid was not responsive. Petitioner’s bid identifies and offers for lease space in the Lake City Professional Plaza. The drawing submitted with the bid mistakenly identifies the area of the proposed lease space as “Grant Plaza.” Additionally, Petitioner’s bid did not contain a Public Entity Crime Addendum as required by the RFP. Failure to meet this requirement, by terms of the RFP, “will result in immediate disqualification of your proposal.” Other errors in Petitioner’s bid include the drawing submitted in the bid response which depicts parking. The drawing indicates that there are “new” parking spaces which are to be 10 feet wide by 19 feet deep. Under local land use regulations, new regular parking spaces must be 10 feet by 21 feet with a requirement that handicapped spaces measure 12 feet by 20 feet. Petitioner’s bid fails to comport with applicable local land use regulations. On page 2 of the RFP, Respondent reserves the right to reject any and all proposals which are not responsive. Neither the Giles’ bid nor the Petitioner’s is found to be responsive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding none of the bids to be responsive and making such other disposition as may be deemed appropriate. DONE AND ENTERED this 7th day of December, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1998. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert A. Sweetapple, Esquire Sweetapple, Broeker and Varkas 465 East Palmetto Park Road Boca Raton, Florida 33432 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether proposed rules 61D-7.021(5)(f) and 61D-7.021(5)(g) are invalid exercises of legislative delegated authority pursuant to Subsection 120.52(8), Florida Statutes (2004),2 and, if so, whether Petitioner is entitled to an award of costs and attorney's fees pursuant to Subsection 120.595(2), Florida Statutes.
Findings Of Fact Calder is a Florida corporation and a pari-mutuel permitholder permitted and licensed by the Department pursuant to Chapter 550, Florida Statutes. Calder seeks to challenge proposed amendments to Florida Administrative Code Rule 61D-7.021. Specifically, Calder challenges Subsection (5)(f), as noticed in the Florida Administrative Weekly, Volume 30, Number 32, August 6, 2004, and Subsection (5)(g), as noticed in the Florida Administrative Weekly, Volume 30, Number 21, May 21, 2004.3 The challenged amendments shall be referred to as the "Proposed Rules." The Proposed Rules provide: For tickets cashed more than 30 days after the purchase of the ticket, the ticket may not be cashed at any type of patron- operated machine or terminal. The totalisator system must be configured to instruct patrons on how to cash the ticket. The totalisator system must have the ability to identify such tickets and indicate to a teller that the ticket falls within this category. Calder is a licensed and permitted pari-mutuel facility which sells tickets and uses totalisator machines, and the Proposed Rules would govern the operation of such facility. The Proposed Rules have the effect of directly regulating the operation of Calder's pari-mutuel facility, and, as such, Calder is substantially affected by the Proposed Rules. The parties have stipulated that Calder "may properly challenge both Proposed Rules 61D-7.021(5)(f) and 61D-7.021(5)(g)." A pari-mutuel ticket evidences participation in a pari-mutuel pool. A winning or refundable pari-mutuel ticket belongs to the purchaser and may be claimed by the purchaser for a period of one year after the date the pari-mutuel ticket was issued. An "outs" or "outs ticket" is a winning or refundable pari-mutuel ticket which is not redeemed. If a ticket remains unclaimed, uncashed, or abandoned after one year from the date of issuance, such uncashed ticket escheats to the state unless the ticket was for a live race held by a thoroughbred permitholder such as Calder, in which case the funds are retained by the permitholder conducting the race. A totalisator machine is "the computer system used to accumulate wagers, record sales, calculate payoffs, and display wagering data on a display device that is located at a pari- mutuel facility." § 550.002(36), Fla. Stat. The Department was prompted to begin the rulemaking process for the Proposed Rules by two major cases involving fraud, one Florida case and one national case. The Florida case involved two totalisator employees named Dubinsky and Thompson, who allegedly accessed outs ticket information in the totalisator's central computer system, counterfeited outs tickets based on the information, and cashed the tickets at self-service machines at two pari-mutuel wagering facilities. The fraudulent conduct involved approximately $13,000. In the Florida case the fraudulent tickets were cashed several months after the tickets were said to have been issued. The fraud came to light when the ticketholder who held the true ticket attempted to cash the ticket, but could not because the fraudulent ticket had been cashed. The national case also involved a totalisator employee who cashed fraudulent outs tickets. In the national case, the fraudulent tickets were cashed less than 30 days after the date the tickets were purportedly issued. The purpose of the Proposed Rules is to deter the cashing of fraudulent tickets. The Department received comments from AmTote International, a totalisator company, at the rule workshop held during the rulemaking process and received written comments submitted by AmTote International after the workshop, indicating that the majority of tickets are cashed within six to nine days after the date of issuance. The older a ticket gets the less likely it becomes that the ticket will be cashed, and the less likely that it becomes that the cashing of a fraudulent ticket would be revealed by the true owner attempting to cash the ticket. Staff of the Department felt that by requiring that outs tickets older than 30 days be cashed by a live person, a thief would be deterred because he would be dealing with a person rather than a machine. The only thing that the self- service machine requires to redeem a ticket is a bar code, so it would be possible to submit a ticket containing nothing but the bar code and receive a voucher which could be submitted to a teller for money.4 If the fraudulent ticket looks different in anyway from a valid ticket, a teller may be able to spot the difference and question the transaction. Calder argues that the way to deter the fraud which has occurred is to stop totalisator employees from being able to print fraudulent tickets. However, the Department is also concerned about computer hackers potentially getting into the computer system which contains the outs tickets numbers and copying the bar code which could be submitted to a self-service machine. By regulating the method of cashing outs tickets, the Department is attempting to deter fraud by totalisator employees and others who may be able to access outs tickets information which could be used in producing counterfeit tickets. During the rule making process, the Department held a workshop, received written comments from the public, and held a hearing to receive comments from the public after the Proposed Rules were first noticed. The Department considered the comments it received and modified the Proposed Rules as noticed in the Notice of Change published on August 6, 2004, to accommodate some of the comments. Calder did not submit a good faith, written proposal for a lower cost regulatory alternative within 21 days after the notice of the Proposed Rules was published in the Florida Administrative Weekly on May 21, 2004, or after the Notice of Change was published.
The Issue The issue for consideration in this case is whether Petitioner, Raymond J. Holmes, is entitled to the entire $5,000.00 won by him in the Florida Lottery or whether a portion thereof should be withheld for reimbursement of public assistance payments previously paid for the support of his child.
Findings Of Fact On May 7, 1993, a Judge of the Circuit Court of the 20th Judicial Circuit In and For Collier County, Florida, entered, in case No. 93-1327, an Order Determining Obligation And Repayment of Public Assistance for the repayment of support and repayment of foster care payments, made on behalf of Petitioner's child, Allen J. Holmes, against Petitioner, "Ray" Holmes and his wife, Rachel Holmes, in the amount of $5,439.46 plus costs in the amount of $88.20 and attorneys fees of $176.40, This amount was to be paid at a rate of $80.00 plus $3.20 clerk's fee ($83.20) per month, beginning on June 1, 1993, payments to continue until "all prior public assistance has been completely repaid." This Order was acknowledged in writing by both Petitioner and his wife. The Order also provided: ... the State of Florida, or any political subdivision thereof, or the United States, is directed to deduct from all moneys due and payable to the Respondent [Petitioner, Holmes] the amount of child support ordered above. This income deduction shall be effective immediately, and shall become binding on ... [a] comptroller or disbursing officer, the State of Florida, ... two weeks after receipt of service of this order. None of the money called for under the Court's Order has been repaid. Petitioner's one-half of the joint obligation was $2,807.93. On or about August 2, 1993, Petitioner purchased a scratch-off lottery ticket which carried a prize of $5,000.00. Petitioner immediately submitted a claim form for the award of the prize. He listed his social security number as 144-53-7433 on the form. The social security account card issued in his name reflects the correct number to be 144-52-7433 but there is no doubt the Petitioner was the individual who purchased the winning ticket. The claim form was submitted for payment to Lottery headquarters in Tallahassee. In the course of routine coordination between agencies to determine if any obligations to the state were owing by a lottery winner, the above-noted Court Order was identified and when the Petitioner's winnings were transmitted to the Department of Banking and Finance for payment, his half of the obligation was withheld and only the net amount of $2,192.07 forwarded. Thereafter, by state warrant 4-02 909 875, dated August 20, 1993, this net amount was paid to Petitioner. This figure was arrived at by deducting the amount owed by Petitioner, ($2,807.93) from the gross winnings, ($5,000.00). Petitioner was notified by letter dated August 24, 1993 accompanying the warrant of the reason for the deduction. Petitioner thereafter demanded hearing and this hearing ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner, Raymond J. Holmes' request for payment of $2,807.93 withheld from his lottery prize of $5,000.00 by the Department of Banking and Finance. RECOMMENDED this 9th day of December, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 9th day of December, 1993. COPIES FURNISHED: Raymond J. Holmes 3397-2 Sacramento Way Naples, Florida 33942 Scott C. Wright, Esquire Department of Banking & Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking & Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350 Louisa Warren, Esquire Department of Lottery 250 Marriot Drive Tallahassee, Florida 32301 Dr. Marcia Mann, Secretary Department of Lottery 250 Marriot Drive Tallahassee, Florida 32301 Ken Hart General Counsel Department of Lottery 250 Marriot Drive Tallahassee, Florida 32301 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Respondents hold license 23-3237 COP and at all times here relevant were so licensed. On 7 November, 1977, Respondent, Juan Rodriguez, sold less than five grams of marijuana to Rocco Delio, an undercover policeman, on the licensed premises. Delio paid Rodriguez $11 for the marijuana and two beers. When arrested in December 1977 on a warrant charging him with the sale of marijuana, Rodriguez had an old lottery ticket in his possession as well as a list of numbers which the arresting officers thought to be lottery numbers. Rodriguez testified that the lottery ticket was an old one he bad obtained in Puerto Rico and that he had forgotten the ticket was in his wallet. He further identified the list of numbers as measurements he had taken for a building. Rodriguez denied ever selling any lottery tickets. At his trial on the charge of possession and sale of marijuana and possession of lottery paraphernalia Rodriguez pleaded guilty, upon the advice of counsel, to unlawful sale of marijuana, and adjudication of guilt was withheld. (Exhibit 1). Rodriguez testified that he paid a $300 fine and was told by his attorney that the plea and subsequent withholding adjudication of guilt would not affect his business. At this hearing Rodriguez denied selling marijuana to the policeman who had testified to the contrary. The Petitioner's witness is deemed a much more credible witness and it was this testimony, plus the guilty plea entered in Circuit Court that resulted in the finding that Respondent possessed and sold marijuana on the licensed premises. No evidence was submitted with respect to Counts 3, 4 and 7 of the Notice to Show Cause. The admissions of Respondent with respect to the facts alleged in Counts 5 and 6 were rebutted by Respondent's testimony, which was not contradicted by Petitioner's witness, that the lottery ticket was old and that the list of numbers found on Rodriguez' person was not a list of lottery numbers.
The Issue Whether Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in its proposed rejection of all bids received in response to Request for Proposals, Lease No. 700:0819.
Findings Of Fact On May 10, 1999, the Respondent, Department of Corrections (Department), issued Request for Proposal, Lease No. 700:0819 (the RFP) for office space in Dade County for the Office for Probation and Parole Supervision. Petitioner, 7952 West 2nd Corporation, and Intervenor, Capital Group of Miami, Inc. (Capital), submitted the only responses to the RFP. Upon receipt of the proposals, Mr. Audwyn Francis, the Department's employee in charge of the RFP, believing the bids to be nonresponsive, contacted the Department's legal section for advice and for a determination of responsiveness. While waiting for the legal section to research and make a recommendation on the responsiveness of the proposals, because of time constraints, Department staff decided to proceed with the site visits and evaluation of the proposals but not to make an award until they received a decision from legal counsel concerning the responsiveness of the proposals. A site visit was conducted at the two proposed sites. The responses were evaluated according to the criteria in the RFP. Capital received a score of 98. 7925 West 2nd Corporation received a score of 92. The evaluation committee recommended that an award be made to Capital. Upon further review of the proposals by the Department's attorneys, it was determined that all of the bids were nonresponsive. Based on this determination, the Department rejected all bids. On page four, section A, paragraph seven, the RFP provides the following requirements relating to parking: A minimum of 50 on-site spaces for the exclusive use of the employees and clients at no additional charge to the leasee. Parking spaces must be under the control of the bidder and be suitably paved, lined, bumper pads installed, and labeled D.C. parking. At least two spaces must meet the requirements of the Accessibility Requirements Manual published by the Department of Community Affairs, latest edition. Parking area shall be well lighted and secure. Bidder shall provide a site plan identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces requested in this RFP can be achieved without infringing on or combining with the parking requirements of other tenants. At the preproposal conference, Mr. Francis, advised the attendees that all attachments as indicated on pages 29 through 31 of the bid package must be included with the bid submittal. On page 30 the RFP requires the proposers to show proof of structures and parking control and directs the proposers to page 4, section A, paragraph 7 and page 23, section D, paragraph 7. Capital proposed to provide 43 parking spaces on-site and 7 parking spaces across the street. Capital's proposal was not responsive to the requirement of providing 50 parking spaces on-site. Petitioner included a document entitled "As-Built Survey" with its proposal. The survey showed the outline of the building on the site, but did not show any parking spaces. Petitioner stated in its proposal that it would provide 50 parking spaces. When Department staff arrived at Petitioner's site to conduct a site visit, they could not find a place to park. During the site visit, Robert Harrison, a representative of Petitioner, advised Department staff that Petitioner leased office space to another agency in the same building that was being offered to the Department. Mr. Harrison advised that he did not know the number of parking spaces to which the other agency was entitled to use. None of the parking spaces at the site were marked as being assigned to any tenant. As of the date of the Department's letter advising that it was rejecting all bids, Department staff were unaware of the total number of spaces available on the site and the number of spaces to which the other agency had exclusive use. After all the bids were rejected, Petitioner disclosed that it had a lease with the Department of Health and Rehabilitative Services (HRS) for space in the building in which it proposed to lease space to the Department. The lease provided that HRS had exclusive use of 150 parking spaces on- site. Petitioner further disclosed that it had a total of 250 parking spaces on-site. Petitioner failed to comply with the requirement that the proposer provide a site plan showing the number of spaces assigned for the use of the current tenant at the building. The Department utilizes a manual entitled "Competitive Proposals," which establishes the procedures to solicit and evaluate proposals. Section Seven of the manual pertains to the procedures to be followed by the Department when evaluating proposals and provides: All proposals will first be reviewed for conformance with the provisions specified in the RFP. Any proposal not in compliance with the terms of the proposal specifications shall not receive further consideration. The evaluation committee will analyze each responsive proposal to determine which proposal is the lowest and best in accordance with established provisions and award factors. . . . To be considered for award, a proposal must comply in all material respects with the RFP so that all proposers may stand on equal footing, with respect to the method and time frame of submission, and to the substance of any resulting lease. The proposal must result in a binding contract. Non-responsive proposals. Any proposal which fails to substantially conform to the requirements of the Request for Proposal. A proposal may not be considered if the proposer imposes conditions which would modify requirements of the Request for Proposal, or limit their liability to the State of Florida, giving them an advantage over other proposers. When a question of responsiveness is unclear the agency's legal counsel should be consulted. In the event no acceptable proposals are received, all proposal should be formally rejected by letter, sent by certified mail, return receipt requested. * * * F. Proposals which technically conform to the requirements of the Request for Proposal are considered to be responsive and may be accepted for consideration by the evaluation committee for determination of an award recommendation. The evaluation committee can seek clarifications as needed from any proposer. However, clarifications received from the proposer which change what was originally proposed cannot be considered in the evaluation. * * * Each committee member is to personally inspect the proposed facility, and evaluate the location and facility on the basis of the evaluation criteria contained in the specifications. When all committee members have individually assessed award factor points for each proposal, the entire evaluation committee will meet to review the individual evaluations and jointly develop a committee determination of the best proposal based on the overall factor ratings. * * * L. The agency has the right to reject any and all proposals when such rejection is in the best interest of the State of Florida. Such rejection cannot be arbitrary, but must be based on strong justification. Each person with a rejected proposal should be notified by certified mail return receipt requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED a final order be entered dismissing Petitioner's protest. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Hearings Filed with the Clerk of the Division of Administrative this 29th day of February, 2000. COPIES FURNISHED: Michael W. Moore, Secretary Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Obed Dorceus, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 165 East Boca Raton Road Boca Raton, Florida 33432-3911 David A. Anthony, Esquire Law Offices of David A. Anthony 916 Catalonia Avenue Coral Gables, Florida 33134
