The Issue At issue in this proceeding is whether Petitioner's lottery prize is subject to an outstanding debt to a state agency.
Findings Of Fact By letter of June 9, 1997, the Department of Education, Office of Student Financial Assistance (Department), notified the Department of the Lottery (Lottery) that Petitioner owed the Department $26,356.28, as of June 9, 1997, as a consequence of outstanding defaulted student loans. Thereafter, pursuant to Section 24.115(4), Florida Statutes, the Lottery transmitted the prize amount ($24,781.66), less Federal income tax withheld ($6,938.86), to the Department. By letter of June 10, 1997, the Department notified Petitioner that it was in receipt of his prize money, less Federal income tax withheld, and that, since the amount owed the Department exceeded the amount of the prize, it planned to apply the entire sum it had received ($17,842.80) to the outstanding indebtedness. The Department's letter also advised Petitioner of his right to request a formal hearing pursuant to Section 120.57, Florida Statutes, to contest the Department's decision. Petitioner filed a timely request for a formal hearing to contest the Department's decision, and the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the formal hearing Petitioner had requested. At hearing, the proof demonstrated that Petitioner was the recipient of three student loans, each of which was funded by Centrust Savings Bank (Centrust) and guaranteed by the Department. The first loan (No. 7701) was in the amount of $3,000, which was disbursed on December 19, 1986. The second loan (No. 557720) was in the sum of $5,000, which was disbursed on January 29, 1987. The third loan (No. 631534) was for $5,000; however, only $2,500 was disbursed. That disbursement occurred on November 26, 1987. Petitioner defaulted on the student loans, and Centrust filed a claim with the Department. The Department, as guarantor, paid the lender the amounts due on the loans as follows: A.) On August 12, 1993, the Department paid the claim on Loan No. 557720. At the time, the principal due was $5,021.562 and interest due was $1,942.59, for a total of $6,964.15. B.) Also on August 12, 1993, the Department paid the claim on Loan No. 631534. At the time, the principal due was $2,510.78, and interest due was $971.29, for a total of $3,482.07. C.) Finally, on January 20, 1994, the Department paid the claim on Loan No. 7701. At the time, the principal due was $3,118.28, and interest due was $2,458.40, for a total of $5,576.68. As of June 9, 1997, the date the Department received the proceeds of Petitioner's lottery prize, the balance due on the defaulted loans, with accrued interest, was as follows: Loan No. 7701, $7,842.80; Loan No. 557720, $9,096.52; and Loan No. 631534, $4,548.25. In total, as of June 9, 1997, Petitioner owed the Department $21,487.57, as principal and accrued interest owing on the defaulted loans.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which approves the application of the $17,842.80 of Petitioner's lottery prize the Department received toward the partial satisfaction of the debt owing the Department. DONE AND ENTERED this 21st day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 21st day of January, 1998.
Findings Of Fact Background On March 12, 1991, the Department of Lottery (Department) issued Request for Proposal No. 91-007-LOT/TEN/P entitled "Request for Proposal for the Provision of Advertising and Related Services to the Florida Lottery" (hereafter "the RFP"). The deadline for submitting sealed proposals in response to the RFP was established as April 22, 1991, but extended to April 29, 1991, by Amendment 3 to the RFP. At the time of the deadline, ten proposals had been filed, including those of petitioner, Bozell, Inc. (Bozell), and intervenors, Earle Palmer Brown (EPB) and BBDO South (BBDO). By "Notice of Selection of Finalists," dated May 1, 1991, and posted at the Department's headquarters, the Department advised all bidders that: After review of written proposals submitted in response to the subject RFP, the Florida Department of the Lottery's Evaluation Committee has ranked the responsive proposals in the following order of preference: Ogilvy & Mather Earle Palmer Brown BBDO South Bozell W.B. Doner Fahlgren Martin Benito West & Company Beber Silverstein LMPM The Ad Team In accordance with Section 5.3 of the RFP, the Department intends to conduct oral presentations with the following firms for the purpose of determining final rankings: Ogilvy & Mather Earle Palmer Brown BBDO South Bozell W.B. Doner Pursuant to Florida Statute and Rule 53ER87-16, failure to file a formal written protest and the bond required by Section 287.042(2)(c), Fla. Stat., with the Secretary within 72 hours shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Here, there was no showing that any protest was timely filed to contest the Department's selection of the five finalists. The five finalists made oral presentations to the evaluation committee on May 7 and 8, 1991, and their cost proposals were opened and scored on May 8, 1991. At the conclusion of its work, the committee awarded EPB an average total score of 174.550 and Bozell an average total score of 171.150; 200 points was the maximum total possible. By notice dated Wednesday, May 8, 1991, at 8:07 p.m., the Department issued its "Notice of Intent to Negotiate a Contract" ranking the top five firms in the following order of preference: (1) EPB, (2) Bozell, (3) Ogilvy & Mather; BBDO; and (5) W.B. Doner. Bozell filed its formal written protest and petition for formal administrative hearing with the Department of Monday, May 13, 1991, at 4:29 p.m. The Request for Proposals The RFP consists of the original RFP issued by the Department, three amendments, and the Department's response to various written questions submitted by potential bidders. Pertinent to this case, the RFP provided: SECTION 1: GENERAL INFORMATION Introduction. This Request for Proposal ("RFP") has been issued by the Florida Department of Lottery ("Lottery") to obtain sealed proposals from qualified firms for the provision of advertising and related services to the Florida Lottery. This RFP, and all other activities leading toward the execution of a contract per this RFP, are conducted under the Lottery policies set forth in Rules 53ER87-10 through 53ER87-19, Florida Administrative Code, and Chapter 24, Fla. Stat. The Lottery considers it in the best interest of the State of Florida to procure the commodities/services described herein through a competitive process. All responding firms should read and be familiar with the Florida Public Education Lottery Act [Chapter 24, Fla. Stat.] to ascertain an understanding of the purposes and requirements placed on the Lottery. A copy of Chapter 24, Fla. Stat., is attached to this RFP. This proposed purchase is a Major Procurement as defined in Section 24.103, Fla. Stat. (1989). Glossary of Terms. * * * Responsive Proposal - Refers to a proposal which contains, in the manner required by this RFP, all documentation, drawings, information, plans, materials, certifications and affirmations, regardless of which section of the RFP sets forth the particular requirements. * * * Questions About This RFP. * * * If revisions to this RFP are necessary after the closing date for submitting proposals, the revisions will be provided to only those Respondents who have submitted Responsive Proposals and have met the basic requirements of this RFP. Such Respondents will then have the opportunity to modify their proposals in conformance with the revisions. Timetable The following timetable will be strictly adhered to in all actions relative to this procurement. * * * All proposals will be opened by Lottery employees at 2:00 p.m. on April 22, 1991 [extended to April 29, 1991, by Amendment 3] in the Purchasing Office at the aforesaid Lottery Headquarters. The public may attend the opening but may not review any proposals submitted. The evaluation process will begin immediately following the proposal opening. The Evaluation Committee will rank the proposals in order of preference based on the evaluation of the technical proposals in accordance with the criteria specified herein. Notice of selection of finalists shall be posted at the Lottery's headquarters. If more than five Responsive Proposals are submitted, at least the five top firms which have submitted Responsive Proposals will be selected for oral presentations to be made in Tallahassee, Florida, at the Lottery's Headquarters. Oral presentations are tentatively scheduled for the week of April 29, 1991 [extended to the week of May 6, 1991, by Amendment 3] . . . . The Evaluation Committee will score the oral presentations and then open and score the cost proposal. The final rankings will be determined based on the evaluation of the technical proposals, oral presentations and cost proposals. Notice of Intent to negotiate with the highest ranked firm will be posted at the Lottery's headquarters. If negotiations with the highest ranked firm are not successful, the Lottery may negotiate with the other listed firms in descending order of rank. Upon successful conclusion of negotiations with a Respondent, a Notice of Award of Contract will be posted at the Lottery's headquarters. * * * 1.12. Proposal Submission. It is the Respondent's responsibility to ensure that its proposal is delivered by the proper time at the place of the proposal opening.... * * * 1.14 Correction or Withdrawal of Proposal. A correction to, or withdrawal of, a proposal may be requested within 72 hours after the proposal opening time and date. Requests received in accordance with this provision may be granted by the Lottery upon proof of the impossibility to perform based upon an obvious error. The Lottery, in its sole discretion, will determine whether a bid may be corrected or withdrawn. Interpretations/Disputes. Any questions concerning conditions and specifications of this RFP shall be directed in writing to the Issuing Officer in the manner provided in Sections 1.8 and 1.9 of this RFP. Inquiries must reference the bid number and the date of proposal opening. No interpretation shall be considered binding unless provided in writing by the Lottery. Any prospective Respondent who disputes the reasonableness or appropriateness of the terms, conditions, and specifications of this RFP shall file a formal written protest in appropriate form within 72 hours of the availability of answers to questions as provided in Section 1.9 of this RFP. Any Respondent who disputes the Lottery's Notice of Selection of Finalists, Notice of Intent to Negotiate, or Notice of Award of Contract, shall file a formal written protest in appropriate form within 72 hours of the notices. Any person who files a formal written protest shall, at the time of filing the formal written protest, post a bond as set forth in Section 287.042(2)(c), Fla. Stat. Failure to file both a protest and bond within the time prescribed in Rule No. 53ER87-16, Florida Administrative Code, shall constitute a waiver of proceedings under Chapter 120, Fla. Stat. Legal Requirements. Applicable provisions of all federal, state, county, and local laws and administrative procedures, regulations, or rules shall govern the development, submittal and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes which may arise between persons submitting a proposal hereto and the Lottery. Lack of knowledge of the law or applicable administrative procedures, regulations or rules by any Respondent shall not constitute a cognizable defense against their effect. * * * Purpose and Overview. A. In accordance with Chapter 24, Fla. Stat., the Florida Department of the Lottery has been charged with the responsibility "to operate the state lottery . . . so as to maximize revenues in a manner consonant with the dignity of the state and the welfare of its citizens." The Contractor will support the Lottery in its mission by providing the advertising services set forth in Section 2.2. The goal of these services is to maximize the sale of tickets, enhance the public image and visibility of the Lottery, and assist in communicating the intent that Lottery proceeds enhance education . . . . Scope of Services. The Contractor shall be the principal advisor and provider to the Lottery for the following advertising and services: Development of strategic advertising plan; Creative strategy, creation and production of all advertising (including television, radio, print, transit and outdoor); Placement of all print, radio, television, transit and outdoor advertising at the lowest competitive rate; Coordination of and contracting for televised broadcasts of lottery drawings; Ticket design; Creation and production of point-of- sales material; Media plans; Educational, promotional and other related activities as directed. The Technical Proposal. The objective of the technical proposal is to demonstrate the Respondent's understanding and proposed method of rendering the requested services. Each Respondent shall provide a written statement of the firm's understanding of the services requested herein as well as a detailed written plan outlining how the firm proposes to go about providing the services set forth in Section 2.2. At a minimum, the technical proposal shall consist of the following information and materials: * * * E. Firm Qualifications. At a minimum, each Respondent must provide the following information which demonstrates the Respondent's ability to provide the services requested: * * * 4. Resumes not to exceed one page each in length of all personnel who would be assigned major roles in the fulfillment of the work obligation outlined in Section 2.2, with a statement identifying the percentage of time, calculated annually, of each person who will work on the Lottery account. * * * 12. Certified financial statements in customary form for the last three (3) fiscal years including an auditor's report. Certified financial statements must be the result of an audit of the Respondent's records in accordance with generally accepted auditing standards by a certified public accountant . . . . * * * 18. List of type and number of additional employees that may be needed if awarded contract. * * * 33. Disclosure information required by and listed in Section 24.111, Fla. Stat. * * * Section 3: INFORMATION REQUIRED FROM RESPONDENT 3.1. GENERAL INSTRUCTIONS. * * * D. Technical proposals must include the following information, be limited to not more than 100 pages (not including cover sheet, table of contents, divider pages, creative materials or resumes) and be presented in the following sequence: * * * Vendor Information Form (Attachment B). * * * Performance bond commitment letter required by Section 6.6. All material or information required to be submitted as part of the technical proposal required by Section 2.3. * * * 13. Any other material or information required by this RFP. * * * 3.4 Use of Subcontractors. If a Respondent proposes to use one or more subcontractors, the proposal must identify the contemplated subcontractor(s) and the scope of the subcontractor's services, and must include evidence of each subcontractor's ability to fulfill its respective duties on behalf of the Respondent. Respondent must also provide the information required by Section 24.111(2), Fla. Stat., for each subcontractor as if the subcontractor were itself a vendor. * * * 3.6 Additional Information and Comments. Respondent shall not submit with their written proposals material beyond that which is covered in the 100-page technical proposal (not including cover sheet, table of contents, divider pages, creative materials or resumes), plus creative comps and samples, resumes of key personnel and the separate cost proposals. The Lottery reserves the right to request additional information from a Respondent in order to make a thorough review and fair comparison of all proposals submitted.... Section 4: MANDATORY REQUIREMENTS Terms. The Lottery has established certain mandatory requirements which must be included as part of any proposal. The use of the terms "shall," "must" or "will" (except to indicate simple futurity) in this RFP indicate a mandatory requirement or condition. The words "should" or "may" in this RFP indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature will not by itself cause rejection of a proposal. 4.2 Non-responsive Proposals. Proposals which do not meet all material requirements of the RFP or which fail to provide all required information, documents, or materials will be rejected as non- responsive. Material requirements of the RFP are those set forth in Section 3.1 and without which an adequate analysis and comparison of proposals is impossible. The Lottery reserves the right to determine which proposals meet the material requirements of the RFP and to accept proposals which deviate from the requirements of the RFP in a minor or technical fashion as determined by the Lottery. SECTION 5: PROPOSAL REVIEW AND CRITERIA FOR SELECTION 5.1. Proposal Submission. Only proposals submitted in the time frame stated herein and with the content required above will be reviewed and considered by the Lottery. A copy of Chapter 24, Florida Statutes, was attached to the RFP, and Section 24.111, Florida Statutes, was specifically referenced in Sections 2.3.E.33 and 3.4 of the RFP. The vendor information form itself referenced the requirements of Section 24.111(2), Florida Statutes. In accordance with RFP Section 1.8, EPB submitted the following question, among others, to the Department: "Does Attachment B [Vendor Information Form] need to be completed by all company officers?" The Department answered "Yes, see question #8, BBDO Atlanta, letter dated March 26, 1991." The referenced answer to BBDO Atlanta emphasized that "a vendor information form must be completed by each person listed in the instructions on the form [all officers, all directors, all owners, all partners, all trustees, all stockholders holding five percent or more, executive director and chairman of the board]." Even section 1.27 of the RFP required that vendor information forms be submitted to the Department prior to or at the time of submitting the proposal. Responsiveness of proposals Under the terms of the RFP, Sections 5.1 and 5.2, the Department was not to consider and evaluate non-responsive proposals. Non-responsive proposals are defined by Section 4.2 of the RFP as follows: Proposals which do not meet all material requirements of this RFP or which fail to provide all required information, documents, or materials will be rejected as non- responsive. Material requirements of the RFP are those set forth in Section 3.1 and without which an adequate analysis and comparison of proposals is impossible. The Lottery reserves the right to determine which proposals meet the material requirements of the RFP and to accept proposals which deviate from the requirements of the RFP in a minor or technical fashion as determined by the Lottery. At the time it submitted its proposal, EPB did not submit the vendor information forms required by subsections 2.3E33, 3.1 and 3.4 of the RFP and by Section 24.111(2), Florida Statutes, for at least three of its corporate officers or directors (Sally Brown, Louise Smoak, and Robert Morse), and did not submit any vendor information forms for its designated subcontractor, Premier Maldonado & Associates. The Department, through its counsel, first requested submission of these forms from EPB on May 8, 1991, the date on which the Notice of Intent to Negotiate was posted. EPB did not supply the missing forms for Premier Maldonado & Associates until May 14, 1991, and for the three corporate officers or directors until on or about May 29, 1991. The RFP required that the vendor information forms be submitted with the proposal, and Section 24.111(2), Florida Statutes, provided in mandatory language that: The Department shall investigate the financial responsibility, security, and integrity of any person who submits a bid proposal or offer as part of a major procurement. Any person who submits a bid proposal or offer as part of a major procurement must, at the time of submitting such bid proposal or offer, provide the following: A disclosure of the vendor's name and address and, as applicable, the name and address of the following: If the vendor is a corporation, the officers, directors, and each stockholder in such corporation, except that in the case of owners of equity securities of a publicly traded corporation, only the names and addresses of those known to the corporation to own beneficially 5 percent or more of such securities need be disclosed. If the vendor is a trust, the trustee and all persons entitled to receive income or benefit from the trust. If the vendor is an association, the members, officers, and directors. If the vendor is a partnership or joint venture, all of the general partners, limited partners, or joint ventures. If the vendor subcontracts any substantial portion of the work to be preformed to a subcontractor, the vendor shall disclose all of the information required by this paragraph to the subcontractor as if the subcontractor were itself a vendor. (Emphasis added) The Department, at hearing offered proof that it did not consider the language of the RFP or Section 24.111(2), Florida Statutes, to require that all such forms be submitted at the time the proposal is submitted, and that it had been the Department's policy to allow bidders to submit additional forms after bid submission. The articulated rationale for such policy is that based solely on the proposals or, stated differently, absent investigation, the Department is unable to assure itself that forms for all required individuals are submitted with any proposal. Accordingly, the Department considers the omission of such forms a technical deficiency that can be cured up to the point of contracting, and limits its investigation to the successful bidder. While the Department may find it difficult, absent investigation, to assure itself that the vendor information mandated by section 24.111(2) is submitted with the proposal, the mandate of section 24.111(2) and the RFP is clear and unequivocal: such information "must" be submitted with the proposal. Notably, under the provisions of the statute and RFP, the onus is on the bidder, the party privy to such information, to assure that its disclosure is complete and where, as here, its disclosure is not complete its bid is non-responsive, since it is at variance with the mandate of section 24.111(2) and the RFP. Importantly, under the requirements of section 24.111(2), the Department is precluded from contracting with any bidder who fails to submit the required vendor information. Accordingly, a successful bidder who, wittingly or unwittingly, failed to make the required disclosure (such as EPB in the instant case) could subsequently decline to provide the Department with the information and thereby effectively withdraw its bid, contrary to the provisions of section 1.14 of the RFP. Such renders the failure to submit the required information at the time of bid submittal a material defect, since it accords such bidder an advantage not enjoyed by other bidders that submitted the required information. In accordance with subsection 3.1D9 of the RFP, each bidder was required to submit with its technical proposal the performance bond commitment letter required by section 6.6 of the RFP. Section 6.6, as amended by Amendments 1 and 3, provided, in pertinent part: The successful Respondent shall be required, at the time of executing the Contract with the Lottery, to post an appropriate performance bond or other security acceptable to the Lottery in the amount of $2.5 million . . . The other acceptable forms of security are: irrevocable letter of credit; Certificate of Deposit assigned to the Lottery (which must be obtained from a financial institution having its principal place of business in the State of Florida) . . . . Respondents must submit with their proposal evidence that they will be able to provide the performance bond or other security. Such evidence may include, but is not limited to, a letter from an authorized agent of a bonding company committing to provide the performance bond or indicating that the bond underwriter is processing a request to provide the bond and stating unequivocally that the bond will be available upon execution of the Contract. At the time it submitted its proposal, EPB submitted an April 25, 1991, letter addressed to it from Sovran Bank as evidence of its ability to provide the required security. That letter provided: As follow up to our conversation yesterday, the company can restrict its revolving line of credit by $2,500,000 (Two Million Five Hundred Thousand Dollars) for a Letter of Credit of the same amount. The alternative is to apply for the Letter of Credit as a separate facility. The particular terms and conditions of the Letter of Credit would be worked out at the time of application . . . . While of the opinion that the Sovran letter evidenced EPB's ability to provide the required security, the Department likewise felt that the letter failed to evidence any commitment on EPB's part to restrict its line of credit to secure the subject letter of credit. Accordingly, it requested additional information from EPB, and by letter of May 1, 1991, EPB responded: This is to clarify the language in the Sovran Bank letter of April 25, 1991, included as Page 9 in Earle Palmer Brown's Proposal . . . Should Earle Palmer Brown be a successful respondent we will, at the time of executing the contract with the Lottery, either restrict our revolving line of credit with Sovran Bank by $2,500,000.00 for an irrevocable letter of credit, or will provide the Lottery with a surety bond for a like amount. The letter of May 1, 1991, adds more confusion than enlightenment regarding EPB's commitment to provide a letter of credit. Clearly, under the provisions of subsection 6.6 of the RFP, EPB's bare assurance that it would, alternatively, provide the Department with a surety bond was not acceptable evidence of its ability to provide such bond. As importantly, by phrasing its proposal as an alternative, to be exercised at its discretion, EPB lent confusion to the issue of what form of security it would provide. Notwithstanding, the requirement of the RFP was that the bidders "submit with their proposals evidence that they will be able to provide the . . . security," and the letter of April 25, 1991, while perhaps sparse, is facially adequate in that regard. Notably, the proof in this case confirms that EPB does have an adequate credit line with Sovran Bank which could be so restricted for a $2.5 million irrevocable letter of credit. In accordance with section 2.3E12 of the RFP, each bidder was required to submit with its technical proposal "certified financial statements in customary form for the last three (3) fiscal years including an auditor's report." In response to a question submitted pursuant to section 1.8 of the RFP, which asked: "If a company does not have certified financial statements for the last three years as required by Section 2.3.E.12 of the RFP, will it be disqualified from submitting a proposal?", the Department answered: "No. Although the absence of certified financial statements would render the proposal nonresponsive." At the time EPB submitted its proposal, it submitted certified financial statements for fiscal years 1986, 1987, 1988 and 1989. As EPB's fiscal year is the calendar year, its auditors had not yet completed their audit for fiscal 1990 by the response deadline. When EPB's certified financial statement for its fiscal 1990 became available on May 14, 1991, it promptly delivered a copy to the Department. While the RFP required financial statements for the last three fiscal years, the Department understood that a bidder's ability to provide such statements would depend on when its fiscal year closed. In this regard, it is common for an independent audit to require up to six months following the close of a fiscal year. Here, EPB was faced with exactly such a dilemma, specifically disclosed such dilemma in its proposal, and provided the financial statements for the last four fiscal years that were available to it. Under such circumstances, it cannot be concluded that the Department departed from the essential requirements of law when it declined to declare EPB's proposal non- responsive for its failure to include a certified financial statement for fiscal 1990, and accepted, as satisfying the requirements of the RFP, financial statements for the last three fiscal years that were reasonably available to EPB. In accordance with the RFP, each bidder was to identify all personnel who would be assigned major roles in the fulfillment of work under the contract. Pertinent to this case, subsection 2.3E provided: At a minimum, each Respondent must provide the following information which demonstrates the Respondent's ability to provide the services requested: * * * 4. Resumes not to exceed one page each in length of all personnel who would be assigned major roles in the fulfillment of the work obligation outlined in Section 2.2, with a statement identifying the percentage of time, calculated annually, of each person who will work on the Lottery account. * * * 18. List of type and number of additional employees that may be needed if awarded contract. At the time EPB submitted its proposal, it identified twenty-four key positions in account service, creative, media and several other categories. As to the management supervisor, the employee is identified as "selected," and as to an account executive and public relations supervisor, the employee is identified as "TBD" (To Be Determined). All other positions were identified with specific individuals and resumes were included for each. Here, Bozell contends that EPB's proposal is non-responsive because EPB did not name and include resumes for the foregoing three positions. Such contention is, however, unpersuasive. Section 2.3E18 clearly contemplated that some bidders would have to hire additional personnel if awarded the contract, and EPB complied with that section of the EPB by identifying such positions. Accordingly, EPB's proposal was not at material variance from the RFP in this regard. Although the Department's "Notice of Selection of Finalists," dated May 1, 1991, discussed supra, purported to rank the "responsive proposals" in order of preference, the proof demonstrates that the evaluation committee, who was charged with such responsibility, did not, by consensus or otherwise, ever determine the responsiveness of any proposal. Here, for the reasons heretofore set forth, EPB's proposal was non-responsive to the RFP, and the committee's failure to address the issue of responsiveness prior to scoring the proposals, for reasons discussed infra, materially affected the fairness of the evaluation process. Bozell's proposal was, however, responsive to the RFP. 2/ The evaluation committee Pursuant to Rule 53ER87-13(5)(i)(2), Florida Administrative Code, and Section 5.3 of the RFP, the Secretary of the Department appointed an evaluation committee, consisting of six members, to evaluate the proposals which were received from interested firms. Regarding the composition of such committee, the Department advised all prospective bidders, in response to a question posed pursuant to Section 1.8 of the RFP, that: The Evaluation Committee will be comprised of Lottery staff and volunteers from a cross- section of Florida business and academic communities. Subsequently, by notice of April 16, 1991, the Department advised all prospective bidders that the members of the evaluation committee would be as follows: Bernard Edwards Deputy Secretary Marketing Department of the Lottery Tallahassee, Florida Ben Johnson Newspaper Columnist Homles Beach, Florida Robert W. McKnight Assistant Secretary Department of Lottery Tallahassee, Florida Richard Mizerski Professor Tallahassee, Florida John Ruchalski Retired Businessman Jupiter, Florida Alan Sawyer Professor Gainesville, Florida Of the six committee members, only two, Bernard Edwards and Robert W. McKnight, were employees of the Department. No objection to the composition of the committee was lodged until the filing of the subject protest; however, there was likewise no point of entry provided by the Department to challenge the composition of the committee. Robert W. McKnight, who chaired the committee, has been employed by the Department as Assistant Secretary since March 4, 1991, and in such capacity has been responsible for the day-to-day operations of the Department. Mr. McKnight holds a B.S. and M.B.A. degree in business administration, with concentrations in advertising, and has in excess of fifteen years experience in marketing. Throughout the course of such employments, as well as his tenure as a Florida legislator, he has had the opportunity to monitor or supervise the work of advertising agencies employed to advance his products or person. Bernard Edwards, currently Deputy Secretary for Marketing of the Department, has been with the Department since 1988. During that tenure, he has filled, at various times, all three deputy secretary positions (operations, administration and marketing), and has participated in the advertising operations of the Florida lottery. Prior to his employment with the Department, Mr. Edwards was Executive Director of the Washington, D.C., lottery, and from 1983 to 1987 Deputy Executive Director of the Pennsylvania State lottery. During the course of such employments, Mr. Edwards has acquired significant experience in the marketing of lottery products, and the advertising incident thereto. Alan Sawyer is a Professor of Marketing and Chairman of the Department of Marketing of the University of Florida in Gainesville, and holds a Ph.D. from Stanford University in marketing. In addition to his teaching and research, Dr. Sawyer has worked with the Federal Trade Commission, as well as numerous other clients, on advertising matters, including matters of advertising deception, and is a recognized expert in advertising and marketing. Ben Johnson is a Doctoral Teaching Associate and Adjunct Professor at the University of South Florida where he teaches upper division and graduate College of Education courses in methods of teaching English, reading, and learning skills. In addition to teaching, Mr. Johnson has, for some years, been researching the lottery operations of various states. As a consequence of the knowledge he has gained concerning those operations he has written a book, The Lottery Book, scheduled for publication in September 1991, which provides general information for players of various state lotteries, and has a nationally syndicated newspaper column called "The Lottery Column" wherein he answers readers' questions regarding lottery operations. From such experience, Mr. Johnson has developed a knowledge of lottery operations, as well as an appreciation for effective lottery marketing and advertising. John Ruchalski, currently retired, holds a degree in business and marketing, and has 35 years of retail management experience. Of those years, 17 were spent as Senior Vice President of Burdines, three as Chief Executive Officer of Bullock's, and two as president of Bloomingdale's. Mr. Ruchalski's past activities have also included service as president of the Florida Chamber of Commerce and chairman of the board of the Florida Retail Federation. In all, the proof shows that Mr. Ruchalski has a strong marketing background, and a familiarity with the advertising needs incident to such operations. The final member of the committee, Richard Mizerski, is a Professor of Marketing at Florida State University, and holds a Ph.D. from the University of Florida in Economics and Business Administration, with a major concentration in marketing and a minor concentration in advertising. Dr. Mizerski, like Dr. Sawyer, has, in addition to his teaching and research, extensive consulting experience in marketing and advertising, and is a recognized expert in the field. Overall, the proof demonstrates that the composition of the evaluation committee was appropriate for the work it was tasked to do, and that it had adequate time to perform an appropriate evaluation. Each committee member had experience and knowledge in marketing, and advertizing incident thereto, and lent to the evaluation process common and diverse experiences in such areas which helped provide a balanced consideration of the proposals. As importantly, each was shown to be committed to the integrity of the process, and complied with the provisions of Section 286.011, Florida Statutes, by assuring that all committee meetings at which official acts were to be taken were conducted publicly, and by not discussing any matter pertaining to their evaluations with any other member except during meetings that had been properly noticed. Market research data Prior to reviewing the proposals, one or more of the committee members requested information from the Department that would accord them insight into the program area. In response to such request, the Department provided each committee member with the market research data it had available. Such data provided demographic insight into Florida lottery marketing operations. At hearing, Bozell complained that it was never informed that the market research data had been provided to the committee, and offered proof, if credited, that had it known such fact it would have drafted its proposal differently. Such proof was not, however, persuasive, nor was the provision of such information to the committee inappropriate. Here, the proof demonstrates that the data provided by the Department was a matter of public record, and many of the committee members, through their research and training, were already familiar with it prior to their appointment. Bozell, as the current provider of advertising services to the lottery, was very familiar with the data, its subcontractor had complied it, and Bozell used it extensively in its proposal. In sum, Bozell was not disadvantaged by the provision of such data to the committee, and it was not treated any differently than any other bidder in this regard. As importantly, the provision of such information to the committee to lend insight into the program area for which services were being sought was quite appropriate to the evaluation process. Technical proposed evaluation Section 2.3 of the RFP describes the items required to be submitted with a firm's technical proposal, and was designed to assess a firm's understanding and proposed method of rendering the services requested by section 2.2 of the RFP. It provides that, "at a minimum," the proposal shall contain the information and materials requested by subsections 2.3A through 2.3E. Subsection 2.3A required submittal of a proposed advertising approach for the Florida lottery which addresses a three-year summary outline advertising plan, to include recommendations for advertising and promotion, and a proposed one-year timetable for advertising, showing development of creative, production, approval, placement and run-time. Subsection 2.3B required comprehensive artistic representations consisting of a detailed media plan for an eight-week Florida lottery instant game within a $1,250,000 budget; a name, ticket design and prize structure for the instant game; a 30-second radio spot for the instant game; a print ad for newspaper or magazine placement for the game; and a point- of-sale example for the game. Subsection 2.3C required one complete advertising campaign representative of the firm's work, including budget, creative strategy, positioning, media strategy and execution, and post-buy analysis. Subsection 2.3D required creative samples previously produced by key members of the proposed creative team consisting of TV ads, radio ads, print ads, outdoor campaigns, and point-of-sale samples. Finally, subsection 2.3E, entitled "firm qualifications," required, "at a minimum," information concerning 33 specific items, "which demonstrates the [firm's] ability to provide the services requested." Among the items for which information was required were the following: 3. Brief and concise statement of Respondent's advertising philosophy, taking into consideration the following points and others that you may feel are appropriate: Method the Respondent uses for developing advertising. How the Respondent currently measures the effectiveness of its advertising. * * * Evidence of any work done for a state, multi-state, national or provincial lottery. Information regarding any advertising or other experience with state agencies and other governmental entities. * * * 12. Certified financial statements in customary form for the last three (3) fiscal years including an auditor's report . . . . * * * 29. Discussion of contributions that your firm could make toward the growth of the Lottery. Section 5.4 of the RFP set forth the general criteria by which a firm's response to subsections 2.3A-E would be evaluated. Such general criteria were the overall qualifications, experience and abilities of the firm, its staff, and contractors to provide timely and professional advertising and related services, determined by evaluating the information contained in subsection 2.3E; and, the relative creativity, approach, quality and thoroughness of the firm's proposed plans directed toward subsections 2.3A-D of the RFP. Such section concluded: "The evaluation worksheet for the technical proposal is attached as Attachment F." Attachment F to the RFP set forth the specific criteria by which a firm's response would be evaluated. That attachment provided as follows: This evaluation considers information submitted in the technical proposal. Emphasis is placed on the firm's qualifications and ability to do the work, which is addressed in the Technical Proposal. A total of 80 points is obtainable. The Technical Proposal shall be evaluated in accordance with the following criteria: Overall Ability - 40 points maximum Do the resumes of the account team support the Respondent's competency to provide the services required by Section 2.2? Proposed Account Team: Is the team make-up appropriate for the work? Do the team members have experience with comparable work? Are there any sub-contracted firms involved? Are minority sub-contractors utilized? Are the hours assigned to the various team members for each task appropriate? Has the Respondent provided advertising services of the scope required in the past? Experience of the Respondent and staff providing advertising service within the State of Florida. Experience of the Respondent and staff in providing Lottery, pari- mutuel, or other gaming related advertising. Financial stability of the firm and financial capability to provide the entire scope of services. Experience of the firm in providing advertising services to accounts in excess of $10 million. Experience of the firm in placing large volumes of electronic media in all media markets in Florida. Based on 1-3, award points, as follows: 20-30 points for exceptional experience 10-20 points for average experience 0-10 points for minimal experience Has the Respondent provided advertising services to other state or governmental entities? If the work was acceptable, award up to 3 points. If the firm has not done such work, award zero points. Does the Respondent possess unique abilities which would make a noticeable (positive) impact on the project? If the answer is yes, award up to points and note reasons. If the answer is no, award zero points. Does the team composition and each member's percentage of involvement, the use of subcontractors (if any), office location, and/or information contained in the proposal indicate that the Respondent will meet time and budget requirements? If the answer is yes, award up to points and note reasons. If the answer is no, award zero points. Does the Respondent's current workload make it likely the Respondent can provide timely and complete service? If the answer is yes, award up to 2 points and note reasons. If the answer is no, award zero points. Advertising approach and creative samples required by Sections 2.3A-D = 40 points The relative creativity, approach, quality and thoroughness of the firm's proposed plan for providing the requested services required by Section 2.3(A). Value: 10 points The relative creativity, approach, quality and thoroughness of the comprehensive artistic representations required by Section 2.3(B). Value: 10 points The relative creativity, approach, quality and thoroughness of the advertising campaign required by Section 2.3(C). Value: 5 points The relative creativity, approach, quality and thoroughness of samples required by Section 2.3(D). Value: 15 points The criteria for evaluating the creativity, approach, quality and thoroughness of above items B-1 through B-4 are as follows: Creativity Were the ideas and approach exciting and interesting? Did the samples evoke positive and appropriate emotions? Did the samples capture and hold attention? Did the samples demonstrate fresh and original thought or were they banal and mundane? Approach Was the approach germane and appropriate? Was the approach unified and integrated? Was the approach clear, direct and unambiguous? Quality Were images crisp, sharp, and distinct except where the intention is clearly otherwise? Was the production professional? Was sound free of distortion and visual free of unnecessary clutter? Thoroughness Did the advertising show an appropriate consideration for all facets of the market? Was the advertising comprehensive and balanced? Did the advertising use a full range of tools and techniques to ensure maximum penetration and retention? By memo to all committee members, entitled "Instructions and Timetable for Evaluation Committee Members," and again at the commencement of their deliberations, all committee members were advised that they must evaluate the proposals based on the criteria set forth in the RFP, and to utilize their own individual expertise in applying the criteria. In this regard, the proof demonstrates that the members of the committee abided such directive, and scored the proposals based on the established criteria, except as hereinafter discussed, as applied through their own background and experience. 3/ At the commencement of their deliberations, the committee members agreed that the format they would follow in evaluating the technical proposals would be to first review all the proposals, and then score the proposals individually. This procedure was followed although, not unexpectedly, some members made preliminary assessments as they progressed through the various proposals. Upon completion of their review, the members then scored each proposal and, as appropriate, made adjustments to preliminary assessments they had made based on the perspective they had acquired after their review of all the proposals. Here, Bozell complains that the RFP did not permit the scoring of proposals relative to each other but, rather, required that the proposals be evaluated and scored solely by applying the criteria independently to each proposal, and that the failure of all committee members to so evaluate the proposals is a fundamental flaw in the evaluation process. Bozell's complaint is not, however, persuasive. Here, the RFP required, among other things, a determination of the relative creativity, approach, quality and thoroughness of a firm's plans for providing the services requested by subsections 2.3A-D of the RFP. Under such circumstances, considering the subjective nature of the evaluation, it would not be unreasonable to assign points based on relative merit. And, considering the fact that the proposals were not scored until all proposals had been reviewed that, more likely than not, is what was done by each committee member, consciously or subconsciously. As importantly, each member of the committee scored the proposals independent of any other member of the committee, and was consistent with the approach he took as to each firm's proposal. 4/ Accordingly, it cannot be concluded, based on the proof in this case, that the evaluation process was fundamentally flawed because of the manner in which points were awarded. However, because points were awarded on a relative basis, the inclusions of non-responsive proposals in the evaluation process could have materially affected the scoring of proposals and the Department's failure to exclude non-responsive proposals from the scoring process, as required by section 5.1 of the RFP, was a material departure from the requirements of the RFP. Bozell also complains that Mr. Johnson evaluated the technical proposals in light of his knowledge about the success of other states' lottery advertising. The application of such expertise to the criteria contained in the RFP was, however, appropriate, as discussed supra. As noted by Mr. Johnson: . . . That's my frame of reference against which I measured all of the companies. I could tell that some of the companies really didn't know what they were talking about, because they were suggesting things that were failing in other states. And I was aware of that from my general information background. [Tr. 471] As heretofore noted, selection of committee members with knowledge of the program area, and the exercise of that expertise in applying the criteria, is most appropriate to a reasoned evaluation of a proposal. Finally, with regard to the evaluation of the technical proposals, Bozell offered proof that some committee members failed to apply specific criteria mandated by the RFP, or otherwise scored the proposals in a manner at variance with that called for by the RFP. In this regard, the proof demonstrates that while proposals were to be evaluated, at least in part, based on the different games and formats that were presented in the technical proposals (see subsection 2.3B of the RFP), Mr. Ruchalski did not do so because he had no knowledge upon which to base a decision. Regarding subsections A5-8 of Attachment F (the scoring criteria), Mr. Johnson did not award points in the manner mandated by each subsection. Finally, notwithstanding that an evaluation of the overall ability of the applicant, as set forth in section A of Attachment F to the RFP, required an examination of the "financial stability of the firm and financial capability to provide the entire scope of services," no evaluation of the financial integrity and responsibility of any of the firms was made, and such criteria were not applied in the evaluation process. 5/ In its proposed recommended order, the Department suggests that it would be unnecessarily burdensome to require a detailed financial review by the agency at the initial bid analysis stage since, ultimately, only one firm will be awarded the contract, and because security and financial investigations will be done before a contract is awarded. While such may be the case, it was the Department's election to provide for an analysis of financial stability and capability as part of the review criteria. Oral presentation evaluation The second phase of the evaluation process was the scoring of the oral presentations. Pertinent to this case, section 5.3 of the RFP provided: . . . The oral presentations must be made by the account service, creative and media personnel who would work on the account. There will be no limitation on the information and materials pertinent to this RFP which may be utilized . . . . Section 5.5 of the RFP provided that presentations would be scored based on the following general criteria: Understanding of services requested -- up to 20 points, account team -- up to 25 points, responsiveness to questions -- up to 15 points, and overall impression -- up to 20 points. Finally, Attachment G to the RFP provided that the evaluation relative to the account team would be scored as follows: Account Team = 25 points maximum Did the proposed account team participate? Creativity, quality, uniqueness demonstrated by account team? Respondent's advertising philosophy demonstrated, long term image building? Did account team members prepare samples submitted? EPB's oral presentation was made by Jeb Brown, the chief executive officer of EPB; Craig Davis, the president of EPB's Florida operations; Mike Knaisch, account group head; Kandi Kirkland, account supervisor; Bruce Ayers, media director; Scott Mackey, associate creative director; Pat Hanlon, creative director; Tom Hall, chairman of EPB; and Jeff Tucker, president of public relations. Each of the presenters were identified by EPB as key personnel to be assigned to the Florida lottery account, except Jeb Brown and Tom Hall. As part of its oral presentation, EPB utilized a video tape, which presented favorable comments by the head of the Virginia lottery concerning EPB's performance for it. Addition-ally, EPB included in such video a character it utilizes for the Virginia lottery, "Lady Luck," who also said "nice things" about EPB. Here, Bozell complains that the participation of Jeb Brown and Tom Hall, in the oral presentation, as well as the use of the video which included comments by the head of the Virginia lottery and "Lady Luck," was improper under the provisions of the RFP because they were not members of the account team. Such compliant is, however, unpersuasive. While section 5.3 of the RFP did require that the oral presentation be made by the account, creative, and media personnel who would work on the account, it did not expressly preclude others from participating, and the RFP placed no restrictions on the information and materials pertinent to the RFP that could be utilized. Accordingly, EPB's oral presentation was not at variance from the RFP and, if it were, it was not shown to be a significant deviation. As heretofore noted, the evaluation relative to the account team allowed an award of up to 25 points, and required, among other things, a determination of whether the account team participated; the creativity, quality and uniqueness demonstrated by the account team; and whether the account team members prepared the samples that were submitted. The committee members did not, however, make any specific inquiry regarding whether the account team participated or prepared the samples, although the bidders generally made it a practice to introduce the account team members, but assumed such to be the case for purposes of scoring the presentations. Here, Bozell contends that the committee's failure to expressly inform itself as to whether the account team participated and prepared the samples, as opposed to indulging the assumption that they did, constitutes a significant failing in the evaluation process. However, Bozell failed to demonstrate, at hearing, that the committee's assumption was misplaced. Finally, Bozell offered proof that Dr. Sawyer awarded Bozell 21 points and EPB 22 points for "overall impression," when 20 points were the maximum contemplated by the RFP. Such error was, however, inadvertent, it simply being the intention of Dr. Sawyer to award EPB one more point than Bozell, and was harmless since it did not affect the overall outcome. Cost proposal evaluation Section 5.6 of the RFP provided the criteria for evaluation of the cost proposals and provided that: Finalists' cost proposals will be given points based on an evaluation of the proposed compensation and the experience and qualifications of the proposed staff. A maximum value of 40 points was established for this part of the evaluation. The cost proposals, which the committee members were to evaluate, were contained in a "sealed cost proposal envelope" and were, pursuant to subsection 2.4B of the RFP, to contain: The cost proposal shall include a calculation of the Respondent's proposed compensation for undertaking and completing all phases of the services requested and outlined in this RFP. The cost proposal shall be prepared in the same format as illustrated on Attachment "E" and shall be completed as follows: The Respondent shall provide an aggregate gross salary by work category and position classification for all personnel who will work on the Lottery's account. The aggregate gross salary shall include only that portion of each individual staff member's time that will be attributable to the Lottery account. The portion of time proposed in the cost proposal shall match the labor hour percentages proposed for each individual as required in Section 2.3(E)(4). The Respondent shall also include a proposed multiplier of the type described in paragraph A above. The Respondent shall multiply the aggregate gross salary by the multiplier and the product shall be included in the cost proposal. The Respondent shall also include, in the sealed cost proposal envelope, resumes for all personnel whose salary, or portion thereof, was included in the calculation of the proposed aggregate gross salary resumes shall be included regardless of whether the resumes have also been included in the technical proposal envelope. While the RFP contemplated that all three sections of the proposal (technical, oral presentation, and cost) would be evaluated and scored independent of each other, and that the evaluation of the cost proposal would be limited to an evaluation of the information contained in the "sealed cost proposal envelope," not all committee members so limited their evaluation. Rather, some committee members utilized the knowledge they had gleaned from evaluating the technical proposals and oral presentations, as well as the scores they had assigned during the course of those evaluations, to assist them in assessing the qualifications and experience of the proposed personnel and weighing the firms' proposed compensation. Indeed, it is difficult to imagine how any committee member could ignore the knowledge he had acquired during the course of his evaluations that was reflective of the quality and experience of the proposed staff, any more than he could ignore the expertise he had acquired through his life experiences, in evaluating the cost proposal. Notably, the RFP, as it related to the cost proposals, provided that "the portion of time proposed in the cost proposal shall match the labor hour percentages proposed for each individual as required by section 2.3(E)(4)" of the RFP [the key personnel], and the committee had, as part of their evaluation of the technical proposal, previously evaluated the proposed account team, as well as the relative creativity, approach, quality and thoroughness of their proposals relative to subsections 2.3A-D of the RFP. At the oral presentation, the committee had an opportunity to put faces with names, and broaden their knowledge of the individuals involved. Accordingly, when it came time to evaluate the cost proposals, which involved a consideration of staffing and salary, the members of the committee had certainly formulated opinions regarding the quality of the staff proposed by the respective firms, and balanced that opinion against the proposed compensation to derive the most cost effective proposal. While it may seem unreasonable to restrict the committee to the bare resumes and costs set forth in the cost proposal, as the basis for their evaluation, the reasonableness of the provisions the Department formulated are not at issue in this proceeding. Accordingly, it is concluded that by going beyond the information contained within the cost proposal, the members of the committee materially deviated from the requirements of the RFP. This conclusion prevails, since those bidders who were favored in the evaluation of the technical proposals or oral presentation were, by the consideration of the opinions derived from such evaluations, accorded an unfair advantage over other bidders.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which rejects all bids, and that a new invitation to bid be extended. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of July 1991. WILLIAM J. KENDRICK 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 25th day of July 1991.
The Issue The issue in this case concerns the application of Section 24.115(4), Florida Statutes, to a claim for payment filed by a person who owes a child support arrearage but who did not purchase the lottery ticket presented for payment.
Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I make the following relevant findings of fact. On November 2, 1992, Petitioner, Joseph Judah, Jr., the husband of Petitioner, Diana Judah, presented for payment at the DOL's office in St. Petersburg, a lotto ticket which had been purchased by his wife and which had a prize value of $4,989.50. Mr. Judah placed his name, address and signature on the back of the ticket and completed and signed the winner claim form. Additionally, he presented, as proof of identification, his driver's license and social security card. Pursuant to procedures set forth in Chapter 53-4, Florida Administrative Code, on November 3, 1992, DHRS certified to DOL that Mr. Judah owed $13,302.00 in child support arrearages as of that date. DOL transmitted the prize amount to the Office of the Comptroller and applied the entire amount of $4,989.50 to Mr. Judah's child support arrearages. Mr. Judah was notified that the lottery prize would be applied to his outstanding child support arrearages which prompted him to timely request an administrative hearing. It is undisputed that Mrs. Judah purchased a winning lotto ticket with her money and she is not personally responsible for the support of Mr. Judah's child from a prior marriage. At all times material hereto, DOL had in effect Rule No. 53ER87-43, Florida Administrative Code, entitled "Procedure for Awarding Prizes". That rule provides, in pertinent part, that: (6) Until such time as a name is imprinted or placed upon the back portion of the lottery ticket in the designated area, a lottery ticket shall be owned by the physical possessor of such ticket. When a name is placed on the rear of the ticket in the designated place, the person whose name appears in that area shall be the owner of the ticket and shall be entitled to any prize attributable thereto.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Banking and Finance, Office of the Comptroller, issue a Final Order in this case providing for payment to the Department of Health and Rehabilitative Services of the entire $4,989.50 prize money originally claimed by Petitioner, Joseph Judah, Jr. DONE AND ENTERED this 14th day of July, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 14th day of July, 1993. COPIES FURNISHED: Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, FL 32399-0350 William G. Reeves, Esq. General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, FL 32399-0350 Carrole R. Ward, Esquire 12029 Majestic Boulevard, Suite 7 Bayonet Point, Florida 34667 Karen M. Camechis, Esquire Assistant General Counsel Department of Banking and Finance Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Louisa H. Warren, Esquire Department of Lottery Capitol Complex Tallahassee, Florida 32399-4011
The Issue The issue in the case is whether the allegations of the Administrative Complaint are true, and if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the agency charged with regulating the pari-mutuel wagering industry in Florida, including persons licensed under Chapter 550, Florida Statutes. At all times material to this case, the Respondent was licensed as a cardroom employee occupational license number 1395921-1181, issued by the Petitioner. On May 20, 1998, the Respondent was working as a teller in the cardroom at Tampa Jai-Alai. The evidence establishes that on May 20, 1998, the Respondent provided wagering tickets to a patron of the facility without obtaining cash or a cash voucher in exchange for the tickets.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order revoking the cardroom employee license number 1395921-1181 of Bobbie J. Manning. DONE AND ENTERED this 27th day of January, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1999. COPIES FURNISHED: Susan C. Felker-Little, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Bobbie J. Manning 3007 Spillers Avenue Tampa, Florida 33619 Deborah R. Miller, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Department of Revenue should retain and apply the Petitioner's lottery prize to reduce an outstanding arrearage for child support.
Findings Of Fact The Respondents, the Department of Revenue and the Department of Lottery, are agencies of the State of Florida charged with the responsibility of administering and securing lottery prize winnings to apply to child support arrearages. The Petitioner, Frank Agoglia, was one of a group who completed a claim to a lottery prize in the amount of $7,509.50. The claim was timely submitted to the Department of Lottery, and the Petitioner was eligible to receive his share of the lottery prize. Before taxes, the Petitioner's share of the winning prize was $600.00. The Department of Revenue, acting pursuant to law, notified the Department of Lottery that the Petitioner owes court ordered child support in an amount exceeding the claimed prize. As provided in Section 24.115(4), Florida Statutes, the Petitioner's entire share of the lottery prize was transmitted to the Department of Revenue. The Petitioner was timely notified of the transfer. It is the intention of the Department of Revenue to apply the Petitioner's share of the winning prize to the outstanding child support arrearage. By letter dated March 3, 2001, the Petitioner challenged the transfer of the winning share to be applied to the arrearage. The Petitioner has not disputed the paternity of the child nor the child support obligations imposed by a court of law. It is also undisputed that the amount of the arrearage exceeds the Petitioner's share of the lottery prize. The Petitioner presented no evidence to support his contention that the lottery prize winnings should not be applied to the child support arrearage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order retaining the Petitioner's lottery prize and to apply it to reduce the arrearage of child support owed by the Petitioner. DONE AND ENTERED this 23rd day of January, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2002. COPIES FURNISHED: Frank Agoglia 16460 Southwest 146th Court Miami, Florida 33177-1781 Chriss Walker, Esquire Department of Revenue Child Support Enforcement Post Office Box 8030 Tallahassee, Florida 32314-8030 Louisa Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 Bruce Hoffmann, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 James Zingale, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 David Griffin, Secretary Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 Ken Hart, General Counsel Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301
The Issue The issue for consideration in this matter is whether the Department of Revenue should retain Petitioner's lottery winnings in the amount of $1,033.01 because of his obligation to pay child support as ordered by a court of record.
Findings Of Fact By Final Judgement of Paternity dated September 13, 1994, J. Tim Strickland, Circuit Judge for the 10th Judicial Circuit in Polk County, ordered Petitioner, inter alia, to pay child support and retroactive child support to the State of Florida for the dependent child of which Petitioner was adjudged the father, in the amount of $25.00 per week in future child support, and $5.00 per week in retroactive child support until the sum of $5,007.00 has been paid in full. Petitioner thereafter arranged for the payments required as to both future child support and the retroactive child support to be deducted out of his earnings or unemployment compensation payments when he was unemployed. The Department of Revenue agrees that all periodic payments required by the court order have been paid timely. On May 4, 1996, Petitioner purchased a lottery ticket from an agent of the Florida Lottery. One of the number series he purchased on May 4 was a partial winner and Petitioner was entitled to receive the sum of $1,033.00. On May 5, 1996, Petitioner submitted a winner claim form to claim the $1,033.00. Before any money was paid to the Petitioner, however, consistent with the pertinent provisions of the Florida Statutes, the Department of Lottery transmitted the Petitioner's prize money to the Department of Banking and Finance so that any debts due the state by the winner, or unpaid court-ordered child support could be identified and prize money withheld to satisfy all or a part of such claim. Consistent with established procedure, the Department of Revenue informed the Department of Banking and Finance that Petitioner owed $4,305.01 in unpaid retroactive child support assessed by the Circuit Court in May, 1994. Since the amount the Department of Revenue claimed was owing exceeded the amount of Petitioner's prize of $1,033.00, the Department of Banking and Finance advised Petitioner it intended to apply the entire prize amount to the unpaid retroactive child support. Petitioner protests, claiming that since he is fully in compliance with the terms of the Final Judgement of Paternity, and none of the required weekly payments is delinquent, he is not indebted and the state has no basis to withhold his prize.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be issued providing for payment of the $1, 033.00 prize attributable to the ticket held by Petitioner Gary Roberts, to the Department of Revenue on behalf of his minor child. DONE and ENTERED this 23rd day of September, 1996, 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 23rd day of September, 1996. COPIES FURNISHED: Gary Roberts 527 6th Street Northeast Ft. Meade, Florida 33841 Chriss Walker, Esquire Department of Revenue Post Office Box 8030 Tallahassee, Florida 32314-8030 Ellen C. Marino, Esquire Department of Banking and Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Louisa H. Warren, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32399 Hon. Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper General Counsel The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Dr. Marcia Mann, Secretary Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 Ken Hart General Counsel Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301
Findings Of Fact Petitioner Auburn Ford, Jr., was employed by Respondent as a Lottery Investigator from November 1987 until his demotion to the position of Security Officer on August 23, 1991. Respondent admits that Petitioner was the only black Lottery Investigator and that he was replaced by a white male. Petitioner's demotion, as a disciplinary action by Respondent, was detailed in a letter dated August 23, 1991, to Petitioner from Respondent's representative. In that letter, it was asserted that Petitioner's demotion was the result of his entry into a high security area without legitimate business reasons on July 14, 1991; his entry into a high security area through use of an access card of a subordinate Security Officer, as opposed to use of his own card; his untruthful response concerning use of a telephone in the high security area; and his inaccurate reporting of hours worked in the month of June, 1991. As a Lottery Investigator, Petitioner's duties included implementation of lottery procedures and policies; maintaining controlled access where appropriate; as well as providing training, guidance and supervision of lottery Security Officers. Lottery Investigators are sworn or certified law enforcement officers while Security Officers are unsworn. At the time of his demotion, Petitioner worked the 11 p.m. to 7 a.m. shift along with Linda Koss, another Lottery Investigator. Along with Koss, he jointly supervised the Lottery Security Officers assigned to that shift. The building housing the lottery department is a secure facility in that all persons entering the building must have access authority evidenced by an access badge. In the absence of an access badge, a temporary or visitor's badge allows access to the building in the company of an escort. Within the lottery building, there are areas which are subject to additional security. Access to these areas is limited to the individuals working in those areas and others who have a work-related need to be there. Each employee's access area is determined by the employee's supervisor. An employee's access badge is then programmed for that particular employee's approved access. Lottery Investigators and Security Officers have access to all areas within the building. Each employee is required to sign an access card receipt form upon receipt of the individual employee's access badge. The receipt states that access privileges accompanying the badge are to be used only by that particular employee and that improper or unauthorized use of the badge could subject the employee to termination or other disciplinary action. Security personnel, including Petitioner, signed such a receipt form and knew that exchanging access cards was a violation of security policies. Policies and procedures of Respondent governing access badges establish a comprehensive scheme designed to ensure lottery security through controlled access to the lottery building and areas within the building. Allen Dees was head of Respondent's Bureau of Security and supervisor of Lottery Investigators and Security Officers, during Petitioner's tenure as a Lottery Investigator. Dees orally instructed employees subject to his supervision to refrain from interfering with items on desks throughout the building. The instruction was repeated emphatically after an incident where the theft of personal employee items resulted in the resignation from employment by one Division of Security employee and termination of another's employment. Since Division of Security employees are alone in the lottery building after normal working hours, any unexplained interference with or use of employees' desks, equipment or property often results in the visitation of suspicion upon security employees. In the course of performing their duties, Lottery Investigators and Security Officers periodically conduct watch tours. These tours consist of walking through specified areas of the building to check for security or safety violations. A watch tour of the executive offices is appropriately called The Executive Watch Tour. This tour includes the entire second floor of the lottery building where the executive offices are located, as well as an area known as the On-Line Game area. Watch tours have a minimum and maximum length of time for completion. The length of allotted time for these tours is established to permit an unhurried but consistent inspection of the areas on the tour. Lottery Investigators and Security Officers conducting a tour are to proceed steadily during that activity and not dawdle. Within the On-Line Game area is located the computer system which runs and maintains the integrity of the on-line gaming system of the Lottery, as well as other sensitive and confidential information. Access to this area is controlled by an access card or badge reader which allows entry only to those persons involved in the gaming operation and to security personnel. Security personnel are instructed to use their access badges to enter the area and remain only long enough to permit a determination that there are no safety or security problems in the area. Entering and remaining in this high security area for reasons other than determining the existence of safety or security problems is unauthorized. On the night of July 14, 1991, Petitioner approached Ed Maxwell, a Security Officer subject to Petitioner's supervision, and demanded Maxwell's access badge. Maxwell, who was monitoring the security computer console at the time and saw that Petitioner's own badge was in Petitioner's shirt pocket, knew that allowing another person to use his access badge was a violation of security policy, but complied since Petitioner was his supervisor. Maxwell later observed from the computer console that his access badge was being used to open the access-controlled door to the On-Line Game Area. When Petitioner later returned his badge, Maxwell asked why Petitioner had not used his own badge. Petitioner simply responded that he was the supervisor and expected Maxwell to do what he requested. Maxwell reported the incident to Linda Koss, the other Lottery Investigator on duty in the building at the time and met later with security chief Dees on July 23, 1991. After the meeting, Maxwell filed a written report dated July 24, 1991, with Dees regarding the incident. On July 31, 1991, Frank Carter, Director of Respondent's Division of Security, wrote a memorandum to Petitioner. In the memorandum, Carter detailed several allegations of misconduct by Petitioner, including Petitioner's use of Security Officer Maxwell's card to the enter the On-Line Games Area and Petitioner's entry into the closed office of Respondent's Deputy Secretary of Marketing. Carter's memorandum requested a response from Petitioner. Petitioner's written response stated that the allegations were untrue. Petitioner's presence in the On-Line Game Area on the date in question was confirmed by a copy of a real-time print out of telephone calls made from that location. A telephone call lasting approximately 16 minutes had been made from the On-Line Game Area to Petitioner's home on July 14, 1992. On August 3, 1991, Maxwell again wrote a memorandum to Dees, complaining about what he perceived as harassment from Petitioner for reporting the previous badge borrowing incident. In the memorandum, Maxwell detailed altercations where Petitioner had called him a "dishonest honkey" and a "liar", as well as attempting to instigate a physical confrontation with Maxwell. Further, Maxwell related that Ford had called his home at midnight when Maxwell was out sick, demanding that Maxwell bring in a doctor's excuse or suffered a loss of pay for the sick time. On August 5, 1991, Koss wrote a memorandum to Dees in which she supported Maxwell's version of the events occurring on the midnight shift and voiced her concern that the effectiveness of the shift was deteriorating. On August 14, 1991, both Petitioner and Koss wrote memorandums to Dees. Each blamed the other for an escalating atmosphere of hostility between two factions on the midnight shift: One faction comprised of Koss and Maxwell, and the other faction comprised of Ford and two other Security Officers. On August 15, 1991, Carter, along with Respondent's Deputy Secretary of Operations and Director of Personnel Administration, met with the midnight shift personnel. During the course of the meeting, Petitioner admitted to use of Maxwell's card in entering the On-Line Game area as well as entry of the Deputy Secretary of Marketing's office. When asked directly if he had ever made a personal call from the On Line Game area, Petitioner stated that he had not. Later Petitioner conceded he had made the July 14, 1992 telephone call from the On-Line Game Area to his home. Petitioner began working the midnight shift in April of 1991. At that time, Koss was already working the midnight shift and was warned by another Lottery Investigator that Petitioner was not always accurate in his report of his hours worked. Koss began keeping track of Petitioner's attendance by noting his absences on her personal calendar. She had no knowledge of whether absences were approved or unauthorized. Koss observed Petitioner's June 1991 time sheet on the desk of an assistant and noticed that he reported having worked on June 12 and June 13, 1991. She had noted on her calendar that Petitioner had been absent on those days with the exception of four hours of excused absence to attend firearms training. She reported the discrepancy to Dees. Dees in turn consulted system computer records to determine if Petitioner had signed into the system on those days and determined that he had not. Consequently, it was determined that Petitioner had falsified his time sheet by recording his presence on both days. The exchange of access badges by Security Officers was a frequent occurrence even though it was known to be a security violation. The practice was frequent with the midnight shift and went unreported to the chief of security, who would have instituted disciplinary proceedings had he known of the practice. Testimony was presented by Randy Ringpfiel, a Security Officer, to the effect that the practice was also widespread among Lottery Investigators and known to management, but Ringpfiel's testimony is rejected in view of his demeanor and lack of credibility while testifying. Previously, in February of 1991, Petitioner accompanied a shipment of lottery tickets to an incinerator facility in Panama City, Florida, where lottery materials were to be destroyed in accordance with a contract between Respondent and the incinerator facility. An argument occurred with personnel at the incinerator. Petitioner perceived that the argument and disagreement with the incinerator workers resulted from the fact that they were white and he was black. Petitioner reported to Dees that the incinerator personnel were discriminating against him. A subsequent meeting was held between Respondent's management officials and management personnel from the incinerator facility. Respondent's management informed the incinerator management that racial discrimination toward its employees would not be tolerated. The attitude of incinerator personnel was not a result of racism. Instead, employees at the facility simply disliked dealing with shipments from Respondent since those shipments required special consideration in the process of destruction by burning. For instance, Respondent's security personnel were required to observe and oversee the actual destruction of all lottery materials. Often, the material from scratch off tickets complicated matters because the level of pollutants in these materials would exceed air quality and heat restrictions under which the facility was constrained to operate. Assured by incinerator management personnel that the altercations with Petitioner were not racial in nature, Respondent's management later transferred Petitioner, at his request, to the midnight shift which did not require performance of any duties associated with the incinerator facility. Carter, along with Respondent's Deputy Secretary of Operations and Respondent's General Counsel, met following the August 15, 1991 meeting with personnel of the midnight shift. The purpose of the meeting was to consider the appropriate disciplinary action to be imposed on Petitioner in view of the infractions committed by him. Since, in addition to violation of lottery security policies, the infractions involved dishonesty both in answering questions and in completing time sheets accurately, the options of termination and demotion were considered. Demotion to the position of Security Officer was determined to be the appropriate penalty after a review of Petitioner's past work performance and prior disciplinary actions. The consensus of management was that a great deal had been invested in the training of Petitioner and he had proven in the past that he could be a satisfactory employee, although not as a supervisor. It was felt that supervisors must be dependable and honest and permit upper level management to rely on their representations. This is particularly important with regard to security personnel assigned to supervisory positions on the night shift where there is no direct supervision beyond the Lottery Investigators on duty. In order to permit Petitioner to be considered for promotion back to the position of Lottery Investigator if his performance improved, the demotion of Petitioner from a sworn or certified law enforcement officer position to an unsworn position was not reported to the Florida Department of Law Enforcement. An action that very likely prevented an investigation and possible removal of Petitioner's law enforcement officer certification by that agency. Prior to his demotion, Petitioner received three performance evaluations. The first of these was an evaluation covering the period of November 13, 1987 to November 13, 1988, where Petitioner received an overall rating of "achieves standards". The evaluation included individual ratings in the categories of reliability, punctuality, and technical application which were "exceeds standards". Petitioner received a "below standards" rating in the category of communication skills. The second evaluation of Petitioner's performance covered the period November 13, 1988 to November 13, 1989. He again received an overall rating of "achieves standards." The evaluation showed that he exceeded standards in the area of technical application, and was deficient or below standards in the category of reliability and punctuality. Petitioner's third evaluation covered the period November 13, 1989 to November 13, 1990. Again, he achieved overall standards and exceeded standards in the area of technical application. He was deficient or below standards in the category of reliability and punctuality, as well as a category termed "other" where his attitude was noted to be poor regarding his work. His comments that he had no incentive were also documented in the evaluation. Petitioner was placed on a performance improvement plan from January 30, 1991, through April 30, 1991, which he satisfactorily completed. Respondent's discipline policy provides that discharge is an appropriate penalty for the first offense of a security policy violation. Penalties for the first offense of falsification of documents range from a written warning to discharge. There is no listed penalty for failing to truthfully answer questions posed by a superior.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Rejected to the extent that this proposed finding seeks to establish that management had prior knowledge of a generalized practice of violation of security procedures through the exchange of access badges by employees. Such a finding is not supported by weight of the evidence. Rejected, Petitioner's entry into a restricted area and use of a telephone for non-work related purposes is undisputed. Also, the evidence supports a finding that Petitioner was untruthful when questioned regarding the matter. 3.-4. Rejected, subordinate to Hearing Officer's findings on these matters. Respondent's Proposed Findings 1.-22. Accepted and addressed in major part, although not verbatim. COPIES FURNISHED: Auburn Ford, Jr. 727 Circle Drive Quincy, Florida 32351 Louisa H. Warren, Esquire Department of the Lottery Capitol Complex Tallahassee, Florida 32399-4011 Margaret Jones Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
Findings Of Fact Petitioner, Carolyn K. Peterson, entered a drawing held by Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), on September 12, 1984, for priority entitlement to apply for one of thirteen new quota alcoholic beverage licenses to be issued for Seminole County. Peterson initially was not successful, having been ranked 15. Later, three applicants selected in the September 12 1984, drawing failed to qualify or file a proper application. By letter dated January 25,1985, the Division notified Peterson that her ranking now entitled her to apply For licensure. The January 25, 1985, letter informed Peterson "you must file a full and com- plete application within 45 days of the date of this letter pur- suant to Rule 7A-2.17, Florida Administrative Rule." The letter also notified Peterson: "Failure to file your complete application within such 45 day period will be deemed a waiver of your right to file for the new quota license." The Division consistently follows Rule 7A-2.17. On February 4, 1985, Peterson and her husband went to the Division's Orlando office to inquire concerning application for licensure. Peterson's husband, who had experience in applying for quota alcoholic beverage licenses, inquired whether it was necessary to jump through the procedural hoop of having a location selected and reflected in the application only to put the resulting license in escrow while seeking a more suitable license location within 180 days. The Division's representative, former employee Carolyn Thompson, responded that applicants no longer had to jump through that procedural hoop but could leave the designation of the location of the license blank on the initial application so long as a suitable location was selected and the application updated within 180 days. Thompson partially typed the application forms for Peterson, duplicated them so that Peterson could file the completed application in duplicate as required, and kept a copy for the Division's files. Thompson also gave Peterson, and kept a copy of, an instruction form for completion of Peterson's application. Thompson did not explicitly tell Peterson or her husband that Peterson could file the completed application after the expiration of the 45 day time limit. The Petersons confused the 45-day deadline for filing a full and complete application with the 180-day deadline for obtaining an appropriate location and zoning approval. As a result, the Petersons misunderstood and believed that the application was not required to be completed and filed within 45 days. After the February 4, 1985 meeting, the Petersons inquired about the process of finding a suitable location with suitable zoning. Meanwhile, they let the 45-day time limit ex- pire without filing a full and complete application.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, deny the application of Petitioner, Carolyn K. Peterson, for a quota alcoholic beverage license. RECOMMENDED this 9th day of May, 1986, 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 9th day of May, 1986. COPIES FURNISHED: Ms. Carolyn K. Peterson 797 Pinetree Road Winter Park, Florida 32789 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Thomas A. Bell, Esquire General Counsel. Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 APPENDIX To the extent Petitioner's written final argument contains proposed findings of fact, they are rejected as contrary to the greater weight of the evidence and the Findings of Fact. Respondent's proposed findings of fact 1 through 5 are accepted, but 4 is subordinate and 5 is unnecessary.
