Findings Of Fact Upon consideration of the pleadings and oral and documentary evidence adduced at the hearing, the following facts are found: On or about September 12, 1977, the respondent Port Everglades Authority published its Advertisement for Bids, Specifications and Contract Documents for Contract No. 12-76, involving the installation of a lighting system for Berths 4 and 5. The advertisement alerted the attention of bidders to the requirements as to the conditions of employment to be observed and the minimum wage rates to be paid under the contract. Page 6 of the Instructions to Bidders directs the attention of bidders to the provisions of Resolution No. 9- 1977. Resolution No. 9-1977 is applicable to every construction contract for an amount in excess of $5,000.00 to which the Port Everglades Authority is a party. In summary form, the resolution provides that all labor employed maintain permanent residence within Broward County, unless such labor is unavailable. It further requires that the rate of wages to be paid be not less than the prevailing rate of wages as furnished by the Division of Labor, Florida Department of Commerce (unless the contract involves Federal funding, whereupon the Davis-Bacon Act is applicable) and that the fringe benefits payments be those published in the applicable issue of the Federal Register. The petitioner, an electrical contracting firm, sent an employee to the Port Everglades Authority to secure a copy of the contract documents, plans and specifications. Petitioner's president, James Branam, reviewed these documents with a view toward bidding for the work as the prime contractor and filled out an internal corporate form known as a prebid sheet. It was ultimately decided by the petitioner not to submit a bid for the work. The reason for this decision was that petitioner could not submit a competitive bid because of the prevailing wage rate and fringe benefit requirements and the Broward County residence requirement. On May 17, 1979, after the filing of the instant rule challenge petition but before the date of the hearing, the respondent repealed Resolution No. 9-1977 and enacted Resolution No. 3-1979. The only substantial difference between the two resolutions is the method of determining the prevailing wage rate. The latter resolution came about as a result of the Florida legislature's repeal of the Florida prevailing wage provision--Section 215.19. Resolution No. 3-1979 now requires that the prevailing wage rate, as well as the fringe benefits, shall be those last published in the Federal Register prior to the date of issuance of specifications by the Port Everglades Authority. As noted above, the petitioner's motion to amend its petition so as to name Resolution No. 3-1979 as the challenged rule" was granted.
The Issue Whether the Respondent, the Florida Department of the Lottery, discriminated against the Petitioner, Oscar Jacobs, on account of his race in denying him equal opportunity for training, compensation, use of new equipment, time off from work, leave, retention and advancement?
Findings Of Fact The Parties. The Petitioner, Oscar Jacobs, is an Afro-American. His race is black. The Respondent, the Florida Department of the Lottery (hereinafter referred to as the "Department"), is an agency of the State of Florida. District 2 of the Department. In the fall of 1987 the Department created a district office in Panama City, Florida. The Panama City office of the Department was part of District 2 (hereinafter referred to as the "District"). The District consisted of Bay, Calhoun, Gulf, Jackson, Holmes and Washington Counties. Steve Sumner was hired as the District Manager for the District in October of 1987. Mr. Sumner hired the staff of the District in November of 1987. The District had the following type of positions: District Manager. The District Manager was in charge of the District office and was the immediate supervisor of the employees in the District. Among other things, the District Manager was responsible for: (1) the assignment of the geographic areas LSRs were responsible for including the designation of retailers located therein that the LSRs were to service; (2) the approval of leave; and (3) the assignment of vans. Lottery Sales Representative II (hereinafter referred to as an "LSR II"). LSR IIs were responsible for inventorying lottery ticket stock sold at retail locations, settling accounts with retailers for all lottery tickets sold, ordering lottery ticket books, reviewing settlement calculations, training retailers, completing paperwork necessary for retailers to become a lottery outlet, completing paperwork upon the termination of a retailer as a lottery outlet, ensuring that retailers operated within Department rules, soliciting, conducting and monitoring retailer promotions and recruiting new retail accounts. See Petitioner's exhibit 4 for a complete description of an LSR II's job description. Lottery Sales Representative I (hereinafter referred to as an "LSR I"). LSR Is were responsible for delivering lottery tickets, picking up redemption envelopes from retailers and comparing them with issuance/settlement forms, assisting retailers, maintaining paperwork and daily activity reports and filling in for, and assisting, LSR IIs. See Petitioner's exhibit 4 for a complete description of an LSR I's job description. Each LSR I was assigned to work with one particular LSR II. Storekeepers. Storekeepers were responsible for receiving, verifying and sorting incoming orders for lottery tickets, receiving and verifying ticket redemption envelopes and ticket returns, and insuring that materials were distributed. See Petitioner's exhibit 4 for a complete description of a Storekeeper's job description. A Receptionist. An Accountant I. An Administrative Assistant I. Clerical positions. Relevant History of Mr. Jacobs' Employment at the District. In November of 1987, Mr. Sumner hired three LSR IIs (Sandra Doll, Linda Gray and Debra Chason). All three are white. Mr. Sumner also hired two LSR Is. On November 15, 1987, Mr. Sumner hired the Mr. Jacobs as an LSR I. John Stevens was the other LSR I. Mr. Stevens is white. Danny Edwards was hired in 1987 as the Storekeeper, and Mary Jane Silcox was hired as an Administrative Assistant. Mr. Edwards and Ms. Silcox are white. At the time that Mr. Jacobs was hired, he was married. Mr. Jacobs' wife's race is white. Although Mr. Jacobs subsequently separated and eventually obtained a divorce from his wife, Mr. Sumner was not aware of these events until sometime after he had hired Mr. Jacobs. Mr. Sumner was responsible for evaluating Mr. Jacobs' performance. For the fiscal years November 16, 1987 to November 16, 1988, November 16, 1988 to November 16, 1989 and November 1989 to November 1990, Mr. Sumners rated Mr. Jacobs' performance with an overall rating of "Exceeds At Least One Standard." The possible ratings, from lowest to highest, were "Below Standards," "Achieves Standards," "Exceeds at Least One Standard," "Exceeds Most Standards," and "Sustained Superior Performance." In April of 1988, Mr. Edwards was promoted by Mr. Sumner from Storekeeper to LSR I. In May of 1988, Larry Kissinger was hired by Mr. Sumner as the Storekeeper. Mr. Sumner also hired Hannah Davis as an LSR I. Mr. Kissinger and Ms. Davis are white. In March of 1990, one of the LSR IIs, Sandra Doll, went on maternity leave. Mr. Sumner selected Mr. Jacobs to fill the LSR II position of Ms. Doll during her absence. Mr. Jacobs was selected out of the three LSR Is then working for the District. Mr. Sumner arranged for Mr. Jacobs to receive a 10 percent increase in pay. The increase in pay was to be payable while Mr. Jacobs temporarily filled the LSR II position. At about the same time that Ms. Doll went on maternity leave, another LSR II, Ms. Gray, resigned. Mr. Sumner assigned Ms. Gray's duties jointly to one of the other LSR Is, Ms. Davis, and the Storekeeper, Mr. Kissinger. Ms. Davis and Mr. Kissinger did not receive any increase in pay for their services. During the time that Mr. Jacobs served as a temporary LSR II, he performed satisfactorily, with assistance from other District staff. Prior to August of 1990, Ms. Doll resigned. In August of 1990, Mr. Sumner decided to promote Mr. Jacobs permanently to the position of LSR II. The Department's Personnel Office, however, informed Mr. Sumner that Mr. Jacobs did not appear to meet the minimum qualifications for the position. Therefore, Mr. Sumner assisted Mr. Jacobs to supplement his resume by expanding the description of his prior sales experience in order for Mr. Jacobs to meet the minimum requirements. Mr. Jacobs was subsequently determined to be qualified and Mr. Sumner's decision to promote Mr. Jacobs was accepted. Mr. Jacobs' salary was reduced to the amount he had been paid before he was given the temporary 10 percent increase. Mr. Sumner recommended, and Mr. Jacobs received, a permanent 7 percent increase, the maximum pay increase he could be awarded upon his permanent promotion to LSR II. As of August of 1990, Mr. Jacobs became the highest paid LSR II in the District. Mr. Jacobs remained the highest paid LSR II while he was employed as an LSR II and as an LMR. Mr. Kissinger, the Storekeeper, was promoted in August of 1990 to fill the LSR I position vacated by Mr. Jacobs. Ms. Davis was promoted in September of 1990 to fill the other LSR II position. Ms. Silcox, the Administrative Assistant, was promoted to fill Ms. Davis' LSR I position in September of 1990. Charles Frederick, whose race is black, was hired by Mr. Sumner in February of 1991, as the Storekeeper. In December of 1990, Mr. Jacobs remarried. The woman that Mr. Jacobs married in December of 1990 was white. From the time that Mr. Sumner hired Mr. Jacobs until approximately May of 1991, Mr. Sumner was satisfied with Mr. Jacobs' performance. In March of 1989 Mr. Sumner nominated Mr. Jacobs to the Department as the District employee of the month. In approximately May of 1991, however, Mr. Sumner began to lose faith in Mr. Jacobs. Mr. Jacobs believes that Mr. Sumner's attitude toward him began to change in 1991 and he attributes this change to the fact that he had married a white woman in December of 1990. Mr. Jacobs' belief is not, however, supported by the record. In light of the fact that Mr. Jacobs was married to a white woman when Mr. Sumner initially hired him and during at least part of the time that Mr. Sumner found Mr. Jacobs' performance to be satisfactory, Mr. Jacobs' belief is unfounded. A more logical explanation for the change in the relationship of Mr. Sumner and Mr. Jacobs is Mr. Jacobs' decline in performance and Mr. Sumner's criticism of Mr. Jacobs' performance as an LSR II. After being promoted to the permanent LSR II position, Mr. Sumner found Mr. Jacobs' performance to be lacking. In September of 1990, Mr. Sumner wrote four critical memorandums to Mr. Jacobs. Mr. Jacobs, based upon these memoranda and other comments from Mr. Sumner, began to believe that Mr. Sumner was treating him unfairly. This combination of lesser performance and criticism at least contributed to the rift between Mr. Sumner and Mr. Jacobs. By approximately May of 1991 Mr. Sumner concluded that Mr. Jacobs' performance had noticeably deteriorated and he seemed to lose interest in his job. In September of 1991 Mr. Jacobs and his wife became foster parents of two infants. The infants both suffered from severe medical problems. Mr. Jacobs' relationship with Mr. Sumner became more strained as a result of the stress on Mr. Jacobs caused by the children's condition. In the summer of 1991, a new sales director for the District was hired by the Department. SEE 23. For the November, 1990 to November, 1991 fiscal year, Mr. Sumner evaluated Mr. Jacobs' performance as "Achieves Standards." This rating was one rating lower than the previous ratings Mr. Jacobs had received from Mr. Sumner. The rating was for Mr. Jacobs' first full year as an LSR II and reflected the drop in his performance as an LSR II. The following comment, among others, was made by Mr. Sumner on the evaluation: Over the past years Jake has been an enthusiastic and productive worker. This previous year has seen a deterioration of skills that he is normally capable of doing. I feel this maybe [sic] in part to environmental pressures outside of work. Many changes have been made to improve work environment, yet employee doesn't appear to enjoy his work. This change became more evident after first full year as an LSR II. Petitioner's exhibit 11. At the time of the 1990-1991 evaluation of Mr. Jacobs, Mr. Sumner was not aware that changes in the number of LSR positions in the District would be made by the Department in 1992. Effective January 1, 1992, the Department eliminated the LSR I and LSR II classifications. A single classification, Lottery Marketing Representative (hereinafter referred to as "LMR"), was created. The evidence failed to prove that Mr. Sumner was involved in the decision to make this change. Mr. Jacobs, Ms. Chason and Ms. Gray were reclassified from LSR II to LMR. Mr. Edwards, Mr. Kissinger and Ms. Silcox were reclassified from LSR I to LMR. In March of 1992 Mr. Sumner was notified by the Department that the sales staff of the District was being reorganized. As a consequence, the District LMR positions were to be reduced from six positions to four. As a part of the reorganization, the District was to receive one new position: a Telemarketing Representative, a newly created employee classification. As a result of the reorganization, Mr. Sumner was faced with reclassifying/demoting one LMR and possibly terminating one LMR. Mr. Sumner was only given two weeks to make the changes. In order to minimize the impact of the reorganization on employees of the District, Mr. Sumner successfully convinced the Department to locate the new Telemarketing Representative position at the District office. Mr. Sumner informed the LMRs of the reorganization and sought volunteers to take the Telemarketing Representative position in a meeting of all LMRs. Ms. Silcox subsequently volunteered to take the Telemarketing Representative position. At the time that Mr. Sumner was deciding how to comply with the Department's reorganization, the Administrative Assistant position in the District became vacant. Ms. Silcox subsequently agreed to take the Administrative Assistant position when Mr. Sumner asked her to. As a result of Ms. Silcox taking the Administrative Assistant position, Mr. Sumner did not have to terminate any LMR. The person in the other LMR position eliminated could move into the Telemarketing Representative position. Mr. Sumner spoke to the remaining four LMRs seeking a volunteer to take the Telemarketing Representative position. Mr. Edwards indicated that he would consider taking the position but delayed a decision over night. Mr. Jacobs did the same. Ultimately, none of the remaining five LMRs volunteered to take the Telemarketing Representative position. Mr. Sumner was required to select one of the five LMRs (Ms. Chason, Mr. Edwards, Ms. Gray, Mr. Jacobs or Mr. Kissinger) to be placed in the Telemarketing Representative position. Mr. Sumner decided that Mr. Jacobs should be reassigned/demoted to the Telemarketing Representative position. Mr. Jacobs was informed of the decision and was given the choice of accepting the Telemarketing Representative position with no reduction in salary or moving to Gainesville or Tampa as an LMR. Mr. Jacobs elected to take the Telemarketing Representative position so that he would not have to move. Mr. Jacobs was placed in the Telemarketing Representative position and continued to be paid the same salary he was receiving as an LMR. Mr. Jacobs received no reduction in pay or benefits. The Basis for Mr. Sumner's Decision to Reassign/Demote Mr. Jacobs. Mr. Sumner's decision to place Mr. Jacobs in the Telemarketing Representative position was based on his perception of the performance of the four other remaining LMRs (after Ms. Silcox had agreed to take the Administrative Assistant position) under Mr. Sumner's supervision compared to Mr. Jacobs' performance. Mr. Sumner took into account the past performance of each of the five LMRs and their progress in the various positions they had held under Mr. Sumner's supervision. Mr. Sumner did not base his decision on or consider seniority. Mr. Sumner selected Mr. Jacobs based upon the decline in Mr. Jacobs' performance since being promoted to LSR II, and his perception of the relatively slower development of Mr. Jacobs' abilities as an LSR II when compared with the other LMRs. All of the LMRs (while employed in the various positions under Mr. Sumner's supervision) had experienced problems in their performance and had been criticized by Mr. Sumner. There were no exceptions. Except for Mr. Jacobs, all of the LMRs had received consistently high evaluations of "Exceeds at Least One Standard" or "Exceeds Most Standards" each year while under Mr. Sumner's supervision. These ratings were based on their overall performance and the evidence failed to prove that the ratings were not reasonable. Only the rating given to Mr. Jacobs for his last evaluation period prior to his assignment to the Telemarketing Representative position had declined below those ratings. Two of the five LMRs had held LSR positions for a shorter period of time than Mr. Jacobs: Mr. Edwards: Storekeeper from 1987 to April of 1988, LSR I from April of 1988 to January of 1992, and LMR from January of 1992; and Mr. Kissinger: Storekeeper from May of 1988 to August of 1990, LSR I from August of 1990 to January of 1992 and LMR from January of 1992. Mr. Edwards and and Mr. Kissinger were not selected to be placed in the Telemarketing Representative position because of their consistently high evaluations and because they had both continued to progress and improve in their performance consistently after being employed in the District. Mr. Jacobs had not continued to progress and improve. The Impact of Routes on Mr. Jacobs' Performance. In the fall of 1987, the District was divided into three geographic areas (hereinafter referred to as "Routes"), by Mr. Sumner. Each LSR II was assigned to one of the three Routes and was responsible for servicing the retailers located therein. Each of the three Routes contained a part of Panama City, the largest city in the District, and a part of the rural areas of the District. Ms. Doll was assigned the eastern portion of the District, Ms. Gray was assigned the western portion and Ms. Chason was assigned the rest. Mr. Jacobs was assigned to work with Ms. Chason on the Route assigned to her. When Ms. Doll left the District and Mr. Jacobs was temporarily assigned to replace her, Mr. Jacobs took over Ms. Doll's Route plus a part of Ms. Gray's Route. Mr. Jacobs satisfactorily performed his duties as an LSR I on Ms. Chason's Route and while temporarily replacing Ms. Doll as an LSR II on Ms. Doll's Route. These Routes did not adversely affect Mr. Jacobs' performance. In September of 1990, when Mr. Jacobs was permanently promoted to LSR II and Ms. Davis was promoted to an LSR II position, the Routes were restructured by Mr. Sumner. Mr. Jacobs continued to serve the eastern portion of the District previously serviced by Ms. Doll and by him as a temporary LSR II, Ms. Chason was assigned Panama City Beach and the accounts along part of the Florida border with Georgia and Alabama, and Ms. Davis was assigned the western portion of the District. All three Routes continued to include portions of the greater Panama City area (Lynn Haven, Parker, Callaway and Springfield). The accounts on Panama City Beach were more productive during the summer months. The accounts along the Florida border also tended to be more productive. Ms. Chason was assigned these more productive accounts because she had evidenced greater skills in sales/marketing than the other LSR IIs. Not because she was white. The Routes were not totally restructured again until the January, 1992 consolidation of LSR positions. Prior to January of 1992 changes were, however, made to the Routes. These changes were made because of frequent changes in retailers participating in lottery sales and, on a few occasions, when Mr. Sumner was requested to make changes by the LSR IIs, including Mr. Jacobs. The Route assigned to Mr. Jacobs in September of 1990 was more rural than the other Routes and Mr. Jacobs was required, on average, to drive more miles than the other LSR IIs. The last relevant restructuring of Routes took place in January of 1992 after the consolidation of LSR I and II positions. At that time, the three Routes served by the LSR IIs were divided essentially in half, creating six Routes, one for each LMR. Each LSR II was allowed to select the half of the Route he or she was previously responsible for and the other half was assigned to the LSR I that had previously been assigned to the Route. Immediately prior to January of 1992, Mr. Jacobs was assisted by Ms. Silcox. When their Route was divided, Mr. Jacobs selected the half of the Route he desired and Ms. Silcox was assigned the other half. The evidence failed to prove that Mr. Sumner's evaluation of Mr. Jacobs was unfairly affected by the Route he was assigned to or that Mr. Sumner treated Mr. Jacobs unfairly in the assignment of Routes based upon his race. Sales figures contained on evaluations performed by Mr. Sumner were not always seen by Mr. Sumner when he completed an evaluation. In at least one year, those figures were added to the evaluation after Mr. Sumner completed his part of the evaluation. The suggestion that Mr. Jacobs' Route adversely impacted his evaluations was contradicted by the fact that for three years, Mr. Jacobs and Ms. Chason, who allegedly had the most favorable Route, received the same overall evaluation: "Exceeds at Least One Standard." In the first full year that Mr. Jacobs served as an LSR II, although his overall evaluation declined, the "Other Category," which included Route statistics, on Mr. Jacobs' evaluation was rated "Exceeds at Least One Standard." The suggestion that some LSRs were able to dictate their Routes was also not supported by the evidence. All of the LSRs had some input into the Routes that they handled. For example, Mr. Jacobs and Ms. Davis both requested the assignment of retailers near the Florida border. These requests were honored by Mr. Sumner. Mr. Jacobs was assigned Bascom and Malone, Florida, and Ms. Davis was assigned Campbellton, Florida. Mr. Jacobs accepted the new accounts despite the fact that the mileage he was required to travel increased. All of the LSRs were also allowed to choose between half of their prior Routes in 1992. These incidents did not prove that white LSRs were allowed to select their Routes. Sales generated in each Route had minimal impact on Mr. Sumner's evaluation of Mr. Jacobs or the other LSR's performance. No sales quotas were established and LSRs were not compensated on the basis of their sales during the period of time relevant to this proceeding. While sales had to be taken into account to some extent, performance was evaluated based upon each person's general marketing skills and efforts. Sales goals were established during the summer of 1991 by the new sales director. Each LSR was assigned a sales quota based upon a percentage increase from their last year sales figures. If an LSR failed to meet the quota, there was no consequence. Employees were commended if they did achieve their quota. LSRs were given quotas of new retailers they were to attempt to add each month. All LSR Is were given a quota of one new retailer and all LSR IIs were given a quota of two new retailers. Recruitment of retailers was not necessarily a product of the length of a Route. See Petitioner's exhibit 36. The evidence failed to prove that the Routes assigned to Mr. Jacobs adversely impacted Mr. Sumner's evaluation of his ability to recruit. Based upon the weight of the evidence, Mr. Jacobs failed to prove that the assignment of Routes was made in a discriminatory manner or that Mr. Jacobs' Routes adversely affected his performance because of difficulty caused by the Routes in meeting sales or recruitment quotas. Leave Policies. Mr. Sumner's policy concerning requests for annual leave made was that District employees should request approval at least two weeks in advance of when the employee intended to be off work. The two week notice policy was well known to all employees, including Mr. Jacobs. Mr. Sumner issued several memoranda setting out the policy. Mr. Sumner also notified employees that a telephone call was all that was necessary to take annual leave if there was an emergency. Mr. Sumner's policy concerning giving two weeks notice was not strictly adhered to or enforced. Mr. Sumner recognized there were reasonable circumstances when an employee was not able to request permission to take annual leave two weeks or more in advance. As long as an employee made a reasonable effort and the operation of District would not, in Mr. Sumner's opinion, be harmed by an employee's absence, Mr. Sumner approved leave even when two weeks notice was not given. The two week notice requirement was waived for virtually every employee, including Mr. Jacobs. On one occasion Mr. Sumner denied a request by Mr. Jacobs for annual leave. The evidence failed to prove that Mr. Sumner denied the request without just cause or based upon Mr. Jacobs' race. During the period between April of 1990 and April of 1992, Mr. Sumner approved approximately 400 hours of leave, annual and sick, for Mr. Jacobs. The evidence failed to prove that Mr. Jacobs was treated differently because of his race with regard to leave requests he made while employed by the Department. Part of the leave taken by Mr. Jacobs was attributable to the illness of his two foster care infants. Mr. Jacobs had taken time off on numerous occasions due to their poor health. Mr. Jacobs had been required to take annual leave, rather than sick leave, for the infants because the Department's personnel office had informed Mr. Sumner and Mr. Jacobs that State leave policies did not allow sick leave for foster care children. Mr. Sumner did not strictly enforce the notice policy for annual leave when Mr. Jacobs took annual leave for the foster care children. Nor did Mr. Sumner give Mr. Jacobs any reasonable reason to expect that Mr. Sumner would not approve the use of annual leave when the children were ill because Mr. Jacobs had not given two weeks advance notice. Nor was it reasonable for Mr. Jacobs to not realize that a simple telephone call to the office to inform the office of an emergency with the children would not be sufficient. Between March 17, 1992 and March 18, 1992, one of Mr. Jacobs' foster care infants became extremely ill. This was not the first time that the child had experienced the type of problem experienced at that time, but the problem was more severe. Although Mr. Jacobs could have simply telephoned the office the next morning and reported that there was an emergency, Mr. Jacobs reported to work. Mrs. Jacobs took the infant to a hospital where it was to be determined whether the child would be admitted to the hospital. After arriving at the office, Mr. Jacobs, who was visibly shaken, spoke with Mr. Sumner. What took place during that discussion was disputed by Mr. Jacobs and Mr. Sumner. Mr. Jacobs testified that Mr. Sumner was clearly informed that he wanted to go to the hospital to be with the child but was told he had to attend to his Route first. Mr. Sumner testified that Mr. Jacobs did not specifically request time off, that he had indicated he might be require to go to the hospital sometime during the day, and that Mr. Sumner told Mr. Jacobs to service his five biggest accounts scheduled for that day and then take the rest of the day off even if it was not necessary for him to go to the hospital. Shortly after the conversation between Mr. Sumner and Mr. Jacobs, and after Mr. Jacobs had left on his Route, the child died. Mr. Jacobs was informed at his first stop and he left for the hospital. Based upon the weight of the evidence, it is concluded that Mr. Jacobs, who was tired from the events of the night before and under a great deal of stress because of his concern for the child, was not denied approval of leave by Mr. Sumner to immediately go to the hospital and was not told that he had to complete his Route. At most, there appears to have been an unfortunate miscommunication between Mr. Jacobs and Mr. Sumner about the urgency of the situation. Mr. Sumner's belief that the matter was not as urgent as it turned out to be was supported by the fact that the infants had experienced similar difficulties in the past; the fact that the child had not been taken to the hospital earlier; the fact that Mr. Jacobs had come to the office that morning instead of telephoning; and the fact that Mr. Mr. Jacobs did not insist on going to the hospital immediately. Assignment of Department Vehicles. LSRs were assigned Department vehicles, (vans) for use in servicing Routes. In approximately November of 1987, the District was temporarily assigned one less van than needed. Mr. Jacobs volunteered to drive his personal vehicle, for which he was reimbursed by the State. Mr. Jacobs drove his personal vehicle until approximately December 24, 1987, when he received a new van. Other LSRs were required to use their personal vehicles on occasion, for which they were also reimbursed by the State. Pursuant to a replacement schedule instituted by the Department, 1/3 of all vans were to be replaced every year. In this way, every van would be used a maximum of three years. This schedule was based upon estimates of the time necessary for vans to have accumulated sufficient mileage (80,000 miles) to warrant replacement. To insure that a van was ready for replacement at the end of three years, it was Department policy to assign vans with lower mileage after a year or two years use to high mileage drivers. In November of 1991, five vans in the District exceeded 80,000 miles and were to be replaced with new vans. The District, however, only received three new vans. The other two vans were replaced with two lower mileage vans scheduled to be replaced the next fiscal year. Consistent with Department policy Mr. Sumner was suppose to assign the new vans to persons who drove less miles and the older vans should have been assigned to persons who drove greater miles. In November of 1991, the mileage driven in the previous year by each LSR was as follows: Silcox 16,327 miles Chason 16,426 miles Davis 21,000 miles Jacobs 23,717 miles Edwards 24,000 miles Kissinger 30,000 miles Pursuant to Department policy, the new vans should have been assigned to Ms. Silcox, Ms. Chason and Ms. Davis. The new vans, however, were assigned to Ms. Chason, Ms. Davis and Mr. Kissinger. The vans assigned to Ms. Chason and Ms. Davis were assigned consistent with Department policy. Ms. Silcox, Mr. Jacobs and Mr. Edwards were assigned older vans. The assignment of an older van to Ms. Silcox was inconsistent with Department policy. The assignment of older vans with less mileage to Mr. Jacobs and Mr. Edwards was consistent with Department policy. Had Department policy been followed completely and the third new van had been assigned to Ms. Silcox and not Mr. Kissinger, Mr. Jacobs would still not have received a new van. Mr. Sumner asked Mr. Kissinger and Mr. Edwards if they would drive to another district to pick up two vans. Mr. Sumner indicated that one of the new vans would be assigned to one of them if they agreed. They agreed, and Mr. Sumner awarded a new van to Mr. Kissinger. Mr. Sumner did not give Mr. Jacobs or Ms. Wilcox the opportunity to pick up the two vans located in another district. Marketing Promotions. LSRs, as part of their marketing responsibility, could conduct various types of promotions at retailers intended to increase sales of lottery tickets. LSRs were expected to conduct promotions. Quotas were assigned to each LSR II. They were expected to conduct one promotion per month. Promotions generally did not require much of a financial investment by the retailer and smaller retailers were generally as interested in conducting promotions as larger retailers. The evidence failed to prove that the Route assigned to Mr. Jacobs adversely affected his ability to conduct promotions. The evidence also failed to prove that Mr. Sumner's evaluations of Mr. Jacobs' performance while supervised by Mr. Sumner were adversely impacted by a lack of promotions caused by Mr. Jacobs' Route. Mr. Sumner believed that Mr. Jacobs performed a sufficient quantity of promotions but that he was slow about doing them. Conducting some promotions required overtime. Overtime, however, was required to be requested and approved in writing. Approval of overtime came from the Department and not Mr. Sumner. Mr. Jacobs was aware of this requirement. In December of 1991, Mr. Jacobs requested permission to conduct a promotion which involved the giving away of coffee mugs with the Department logo on them to each customer that bought a minimum number of lottery tickets. This promotion did not involve overtime and none was requested by Mr. Jacobs. Mr. Jacobs claimed that the promotion was changed to one that would require overtime, and that he was told by Mr. Sumner that approval would be obtained from the Department. The weight of the evidence failed to support this claim. In August of 1991, Ms. Chason sought approval to conduct a promotion at a seafood festival to be held in October of that year. The festival required overtime for two employees plus Ms. Chason. Ms. Chason asked for volunteers and accepted the first two persons. Mr. Jacobs did not volunteer and, consequently, was not one of the two persons selected by Ms. Chason. The evidence failed to prove that Mr. Sumner was involved in the failure to select Mr. Jacobs, that the failure to select Mr. Jacobs was somehow unfair or that Mr. Jacobs was not selected by Ms. Chason because of his race. Mr. Jacobs also claimed that he was not given credit for two new retailers he obtained because the forms signing up the retailers were lost. The evidence, however, proved that, although the retailers were lost as Department customers, Mr. Jacobs was given credit for signing them up by Mr. Sumner. The evidence failed to prove that Mr. Sumner was involved with the loss of the forms signing up the retailers or that they were lost to cause Mr. Jacobs to fail to meet his quota for new retailers. The evidence failed to prove that Mr. Sumner or the Department awarded bonuses or that Mr. Jacobs was denied bonuses because of his race. Miscellaneous Charges. The evidence failed to prove that Mr. Jacobs was denied training provided to white employees because of his race. The evidence failed to prove that Mr. Jacobs was denied the use of new equipment provided to white employees because of his race. Mr. Jacobs' Charge of Discrimination. Mr. Jacobs filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Mr. Jacbos alleged that he had been discriminated against based upon his race. On March 29, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Mr. Jacobs filed a Petition for Relief with the Commission requesting a formal administrative hearing. In the Petition for Relief filed with the Commission Mr. Jacobs alleged, in response to questions 3, 4 and 5 on the Petition for Relief, the following: Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below: My supervisor, Steve Sumner has systematically and intentionally denied me equal opportunities because of my race (black) for training, compensation, use of new equipment, time off from work, leave and retention and advancement in my position as an LSR. See the attached charge of discrimination incorporated herein. The disputed issues of material fact, if any, are as listed below: Mr. Sumner allowed every other LSR (all who are white) to pick their own routes which were the best routes, leaving the most difficult to me. He has also allowed other LSR's to work for bonuses during promotions but has not allowed me to do so. Mr. Sumner has misplaced some new applications for lottery retailers that I obtained so that my quotas of achievement would be lower. Mr. Sumner retained a coworker in the LSR position when he had been promoted to LSR long after me. Mr. Sumner denied my taking leave when one of my foster children was critically ill and the child died while I was at work. The ultimate facts alleged and entitlement to relief are as listed below: I wish to have a formal post-investigative proceeding. I wish to be reinstated in my LSR position with seniority back to the date of my demotion or receive adequate compensation for the harms I have suffered and reasonable attorneys fees and costs. I am a member of a protected class and Mr. Sumner has singled me out for arbitrary and negative treatment based on my race (black). All the responses Mr. Sumner has provided are pretextual or simply not true. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Mr. Jacobs. At the commencement of the proceeding, Mr. Jacobs indicated that he was seeking a "general injunction", an apology from the Department, monetary compensation for damages in the form of payment for pain and suffering, attorney fees and reinstatement as an LSR II. Alleged Race Discrimination. The evidence in this case failed to prove that any action of Mr. Sumner or the Department was based upon Mr. Jacobs' race. He was not held to any standard or requirement based upon his race and he was not treated in a manner different from the treatment afforded employees of other races. The evidence proved that Mr. Sumner had hired Mr. Jacobs, that Mr. Sumner had given him high evaluations for the first three years he worked, he had temporarily promoted Mr. Jacobs to a higher position with a temporary increase in pay not afforded white employees, he had promoted him with a permanent increase in pay which made Mr. Jacobs the highest paid employee in his class at the District, and he had assisted Mr. Jacobs in insuring that he was qualified for the promotion. Only after Mr. Jacobs' performance began to decline did Mr. Sumner take actions which were somewhat adverse to Mr. Jacobs. Those actions did not take place until after three years of working together. The reasons for taking those actions were reasonably explained by Mr. Sumner and the Department. Mr. Jacobs was unable to explain the foundation for his belief that Mr. Sumner began treating him differently in 1991 on the basis of his race.
The Issue Whether the Department of Transportation properly denied Petitioner’s permit application for a proposed outdoor advertising sign to be erected adjacent to US 98, 0.817 miles west of State Road 87, in Santa Rosa County, Florida, pursuant to Chapter 479, Florida Statutes.
Findings Of Fact On April 3, 1998, Lamar submitted an application for new sign permits for a proposed outdoor advertising sign along US Highway 98, 0.817 miles west of State Road 87 in Navarre, Santa Rosa County, Florida (new permits) to DOT. The new permits were to be located within 2000 feet of existing permitted signs for which Lamar already possessed permits (the existing permits). The existing permit numbers were AE682-6 and BL256-35. Santa Rosa County’s Land Development Code Section 8.07.00 provides that no off-premise advertising sign, such as involved here, can be located within 2000 feet of any other off-premise sign on the same side of the street right-of- way. Since Lamar's existing permitted sign and the proposed location of the new permitted sign was within 2000 feet of each other, Lamar wished to cancel the existing permits conditioned upon the approval of the new permits. The practice is known as conditional cancellation. Prior to and during 1998, DOT had an established non- rule policy of conditional cancellation for existing sign permits. Conditional cancellation could occur when applying for new permits that would potentially conflict with existing permits. An applicant could simultaneously submit a cancellation certification for the existing permits together with the application for new permits. The old permits would not be canceled until new permits were issued. The exact process for requesting a conditional cancellation was not shown to be uniform throughout the state. However, the policy of allowing conditional cancellations to be made by permittees was accepted statewide. The policy and process for conditional cancellation are now codified in Rule 14-10.004, Florida Administrative Code, after the application in this case had been processed. In this case and in conjunction with the submission of Lamar's new permit application, Lamar submitted a copy of the cancellation certification for its existing permitted signs to the regional District Three DOT office in Chipley, together with its application for the new permits. Simultaneously, on April 3, 1998, Lamar submitted the original cancellation certification to the central office of DOT. The instructions on the certification of cancellation require the cancellation form to be submitted to the Tallahassee office of DOT. Neither the cancellation form nor letter from Lamar indicated that the cancellation was conditional. There was no place on the form to make such an indication. Lamar had been following the above-filing practice when requesting conditional cancellation since 1995. Because of its practice Lamar believed that it had properly notified DOT that cancellation of its existing permits was conditioned upon approval of its application for new permits. Lamar never considered that one office of DOT might not know what occurred at another office of DOT or that one office of DOT might not communicate with another office of DOT. On the other hand, the regional office of DOT in Chipley only recognized that an applicant had requested a conditional cancellation of existing permits when the original and not a copy of the cancellation form was submitted with the application for new permits. Lamar was unaware of the distinction between the filing of an original cancellation form with its application and the filing of a copy of the cancellation form with its application. More importantly, this distinction was not a rule and does not appear to have been communicated to anyone save the officials at the Chipley office of DOT. Consequently, Lamar relied on its established practice when seeking a conditional cancellation. A practice that DOT had recognized on earlier conditional cancellations by Lamar. Lamar reasonably believed, based on its previous experience with the policy of conditional cancellation, that existing permits would not be cancelled until the new permits were granted. Shortly after the filing of Lamar’s application, District Three returned Lamar's permit application without action because it was incomplete. The application was not considered filed by DOT because it was incomplete and the entire application package, including the copy of the cancellation form was returned to Lamar. The application was not logged into the Department’s computer. The Chipley office, even though it knew the old permits were to be cancelled, did not notify the Tallahassee office of the return of Lamar’s application or the lack of approval of that application. On April 7, 1998, the Tallahassee office of DOT processed the cancellation form it had received from Lamar on the existing permits. The existing permits were cancelled and the cancellation was logged into the Department’s computer. Because the Department did not follow its policy of conditional cancellation on which Lamar had relied for a number of years and the Department had knowledge of Lamar’s application for new permits which clearly conflicted with the cancelled permits, the existing permits should not have been cancelled and should have remained in effect since the application had not been approved by DOT. The fact that the knowledge resided in different offices of DOT is irrelevant. On April 10, 1998, Bill Salter Advertising (Salter) submitted an application for sign permits. The proposed sign would be located 0.36 miles west of State Road 87 on the same side of US 98 as the existing permit location for Lamar. The Salter permits would be within 2000 feet of Lamar’s existing permits and not be approved by DOT if the existing Lamar permits were still in effect. On May 6, 1998, Lamar resubmitted its complete application for the new permits. Upon inspection of the site for Lamar’s new permits, it was discovered that a spacing conflict existed with the Bill Salter application site. On May 10, 1998, DOT tentatively denied Salter’s application for incorrect information on the sketch of the site it had submitted with its application. On May 28, 1998, Salter amended its application with a corrected site sketch. By letter dated June 5, 1998 the Department advised Lamar that its application would be held pending resolution of the prior application filed by Salter. On June 26, 1998, DOT granted Salter’s application. On July 6, 1998, permits BU595-55 and BU596-55 were issued to Salter. On August 26, 1998, DOT denied Lamar’s applications. The denial was based on Section 479.15, Florida Statutes, which prohibits DOT from granting a permit which would conflict with a county ordinance such as the Santa Rosa County Land Development Code sign spacing requirements. No other basis for denial of the subject permits exists.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Transportation reinstate the Lamar Advertising Company’s existing permits AE682-6 and BL256-35. DONE AND ENTERED this 7th day of October, 1999, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 7th day of October, 1999. COPIES FURNISHED: G. R. Mead, II, Esquire Clark, Partington, Hart, Larry Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Pensacola, Florida 32591-3010 Sheauching Yu, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Division of Pari-Mutuel Wagering is the state agency charged with the administration and enforcement of the pari-mutuel wagering laws of the state of Florida. Respondent, Ronald F. Kilbride, is an individual who frequents pari- mutuel facilities in the state of Florida for the purpose of wagering. On September 26, 1992, the Respondent was present at the Sarasota Kennel Club and placed several bets on races to be run at the Calder Race Track. On that same day, Respondent placed several bets on races to be run at the Sarasota Kennel Club. On September 26, 1992, at approximately 2:45 p.m., a pari-mutuel wagering ticket, number 42 BOB C22A82A4 (the Ticket), was purchased at Sarasota Kennel Club for a wager on a horse race (race number 5) being run at Calder Race Track. The Ticket was a winning ticket for that race. At approximately 2:55 p.m. on September 26, 1992, Respondent presented what he claimed to be the Ticket, to James Ollie, Mutuel Clerk, Sarasota Kennel Club, at window number 6414 for payment. Ollie accepted the ticket presented by Respondent for payment but did not pay or explain to Respondent why he was not paying for the ticket. After a period of time had elapsed without receiving payment, the Respondent became agitated and asked for, and received, the ticket back from Ollie. There is no evidence that the ticket handed to Ollie by the Respondent at that time was in two pieces or taped together or altered in any fashion. Subsequent to his attempt to cash what Respondent claimed to be the Ticket, Respondent wrote a letter, dated September 27, 1992, to Patrick Mahony, Vice President Mutuels, for Calder Race Course, Inc., enclosing what Respondent claimed to be the Ticket and explaining the circumstances surrounding the attempt to cash that ticket. Before enclosing the ticket referred to in Finding of Fact 7 in the letter mailed to Mahony, Respondent made a copy of the letter and imposed a copy of the ticket mailed to Mahony on the bottom left hand corner of the copy of the letter (Respondent's exhibit 1). The copy of Respondent's exhibit 1 was furnished to John Foley, Investigator, Bureau of Investigation, Division of Pari-Mutuel Wagering, at the time the original letter was mailed to Mahony. The copy of the ticket shown on Respondent's exhibit 1 is a copy of the ticket mailed to Mahony by Respondent by letter dated September 27, 1992. The envelope containing the letter and the two ticket parts indicated that Mahony received the envelope in a damaged condition. Mahony's letter of October 6, 1992 advised Respondent that the ticket was received in two sections which were taped together by an employee of Calder Race Course, Inc. who handled mailed out tickets. After taping the two pieces of the ticket together and attempting to process the taped together ticket, it was discovered by an employee of the mutuel department at Calder Race Course, Inc. that the records indicated the ticket had previously been cashed at Sarasota Kennel Club. The taped together ticket was returned to Respondent. The Respondent made a complaint to the Division concerning his treatment at the Sarasota Kennel Club. As a result of that complaint, the Division commenced an investigation. As a result of that investigation, the ticket that Respondent had received back from Mahony (Petitioner's exhibit 3) was taken as evidence in the investigation. The Florida Department of Law Enforcement (FDLE) was requested by the Division to assist in the investigation by reviewing the ticket to determine if it had been altered, other than it being cut and taped back together. In comparing Petitioner's exhibit 3 with other Autotote tickets, FDLE found that the horizontal bars on the back side of Petitioner's exhibit 3 that had been cut were shorter than the horizontal bars in the same position on other Autotote tickets that had not been cut. It was the testimony of the FDLE expert that cutting a similar Autotote ticket across the horizontal bars in the same place and taping the two pieces back together would not affect the length of horizontal bars that had been cut. It is clear from the unrebutted testimony of the FDLE expert that Petitioner's exhibit 3 had been altered by cutting two Autotote tickets in a similar fashion and taping the opposite pieces of the two cut Autotote tickets together. The copy of the ticket shown on Respondent's exhibit 1 is a copy of a whole Autotote ticket that has not been cut in that there is no line indicating that the ticket has been cut and taped back together before copying or copied as two pieces not taped together. A line indicating where the ticket parts are taped to together is evident on Petitioner's exhibit 3 and the blowup of that same ticket by FDLE (Petitioner's exhibit 8). There are a series of vertical bars under the words AUTOTOTE at the top of each ticket and at the bottom of each ticket which are printed on the ticket at the time of purchase. In comparing the copy of the ticket shown in Respondent's exhibit 1 with the ticket identified as Petitioner's exhibit 3 and the blown up copy of that ticket identified as Petitioner's exhibit 8, the vertical bars at the bottom of each of the above-referenced exhibits appear to be identical. The vertical bars at the top of each of the above-referenced exhibits under the words Autotote appear to be identical starting at the top right hand side and moving left to the vertical bar under the letter "E" in the word Autotote on top left hand side. However, there are two vertical bars on the top left hand side under the letters "O" and "T" in the word AUTOTOTE on the top left hand side of the copy of the ticket shown on Respondent's exhibit 1 that do not appear on either the ticket mailed back to Respondent by Mahony (Petitioner exhibit 3) or the blowup of that ticket (Petitioner's exhibit 8). Other than the two vertical bars referred to in Finding of Fact 16, the information printed on the ticket shown on Respondent's exhibit 1 is the same as printed on the front side of the ticket returned to Respondent by Mahony and identified as Petitioner's exhibit 3 and the blow up of the front side of Petitioner's exhibit 3 identified as Petitioner's exhibit 8. Comparing the copy of the ticket shown on Respondent's exhibit 1 with the ticket identified as Petitioner's exhibit 3, it is clear that if the Respondent had somehow come into possession of the Ticket and cut off the left hand portion of the Ticket as shown in Petitioner's exhibit 3 and replaced it with a similar cut off portion from another ticket that had not been cashed, then the two vertical bars would still appear on the ticket identified as Petitioner's exhibit 3. A one page computer printout allegedly generated by the Autotote Hub entitled "Content of: Daily Ticket Cashed File" for September 26, 1992 list the Ticket as being sold at Window 6410 by Teller 5774 at a cost of $150.00 with a dividend value of $3425.00. This document does not list the window number at which the Ticket was cashed or the teller cashing the Ticket or the time the Ticket was cashed. There was no witness from Autotote to testify as to the significance of this computer printout. However, Mr. Snyder testified that the Ticket was cashed by James Ollie, Mutuel Clerk, at Window 6414, on September 26, 1992, but there was no evidence as to the time of day the Ticket was cashed. Mr. Ollie testified that the Ticket was presented to Ollie for cashing by a Mr. Dean who was referred to as "Santa Claus", for the obvious reasons of giving gifts to individuals, including employees of the track. Mr. Ollie also testified that he misplaced the Ticket after it was cashed and that he was suspended for a period of time by the Sarasota Kennel Club for carelessness. When a winning ticket is cashed by a teller or mutuel clerk the number of the window where the ticket is cashed and the amount won by the ticket holder is stamped on the blank space on the far left hand side of the ticket (the blank area to the left of information printed on the ticket at the time of purchase). This is referred to as a brand which signifies that the ticket has been cashed. After a ticket is cashed it is required that the track keep the ticket on file for, among other things, accounting purposes to the state of Florida and Internal Revenue Service. There is competent substantial evidence in the record to establish facts to show that the ticket Respondent received back form Mahony had been altered. Likewise, there is competent substantial evidence in the record to establish facts to show that the ticket Respondent mailed to Mahony was not altered at the time Respondent mailed the ticket to Mahony. The Respondent did not communicate with Thomas Hughes on September 27, 1992 by telephone or any other mode of communication at any time relevant to this proceeding for the purpose of discussing how to alter a ticket that had already been cashed and branded so that the ticket could be cashed again and did not verbally, or in any other manner, threaten Hughes with bodily harm for disclosing the alleged conversation, notwithstanding the testimony of Hughes and Shirley Griffon to the contrary. Such testimony lacks credibility. The Respondent did not verbally, or in any other manner, threaten James Ollie with bodily harm at any time relevant to this proceeding, notwithstanding the testimony of Shirley Griffon, Dwight Holloman and James Ollie and the Report of Private Ejection to the contrary. Such evidence lacks credibility. The Respondent may have been loud at times and his manner considered offensive by some of the employees at Sarasota Kennel Club. However, the Division has failed to present competent substantial evidence to establish facts to show that Respondent verbally, or in any other manner, threatened any employee of the Sarasota Kennel Club with bodily harm at any time relevant to this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order dismissing or rescinding Petitioner's Order of Patron Exclusion and Notice of Right to Hearing filed against the Respondent. RECOMMENDED this 15th day of October, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1403 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. The following proposed finding of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Findings of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(4, except date is September 26, 1992 not 1993); 3(22-24); 4(7-9,15); 5-11(10,11,11,11,12,12,and 25, respectively) Proposed finding of fact 12-15 are not supported by competent substantial evidence in the record, but see Findings of Fact 29 - 31. Proposed finding of fact 16 and 17 are more argument than Findings of Fact. Proposed finding of fact 18 - 20 are rules and statutes and are more appropriately placed in the conclusions of law. Respondent's Proposed Findings of Fact. Respondent elected not to submit any proposed findings of fact. COPIES FURNISHED: Joseph M. Helton, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ronald F. Kilbride, pro se 5681 Westwind Lane Sarasota, Florida 34231 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William E. Tabor, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Findings regarding the RFP and all Petitioners On September 3, 1991, the Department issued RFP 92-005-LOT-TEN-P by which it sought proposals for the provision of advertising and related services to the Florida Lottery. During the following two weeks, the Department received written questions from would-be vendors. On October 3, 1991, the Department circulated Addendum 3 to the RFP which included numerous changes to the RFP and which provided written answers to the questions which were submitted to the Department prior to September 17. The Department of the Lottery had issued an earlier RFP to obtain substantially the same advertising and related services. The earlier procurement effort ended in a rejection of all bids and the initiation of the instant procurement effort. The timetable set forth in the RFP indicated that on a date certain the Department would make determinations of non-responsiveness in accordance with Section 3.2 and post a Notice of Non-responsive Technical Proposals. Only after responsiveness had been determined would responsive technical proposals be presented to an evaluation committee for scoring in accordance with the criteria set forth in the RFP. (RFP Section 2.6) In addition, Section 6 of the RFP provides that the evaluation committee shall complete an evaluation of all responsive proposals. All Petitioners timely submitted a proposal in response to RFP #92-005- LOT/TEN/P. The issuing officer for RFP #92-005-LOT/TEN/P is Mr. Russ Rothman, CPPO, Office of Purchasing, Florida Lottery, 250 Marriott Drive, Tallahassee, Florida 32301. As issuing officer, Mr. Russ Rothman served as agent of the Florida Department of the Lottery with respect to RFP #92-005-LOT/TEN/P, even though Mr. Rothman's regular employment is with the Department of Highway Safety and Motor Vehicles. The person most directly responsible for preparing the RFP #92-005- LOT/TEN/P was Mr. Russ Rothman. The person most directly responsible for initially determining whether each proposal was responsive or non-responsive was Mr. Russ Rothman. Respondent deemed the proposals of each Petitioner to be non-responsive for the reasons set forth in a Notice Of Non-Responsive Technical Proposal And/Or Non-Responsible Respondent, which notice was posted on October 28, 1991. (Respondent's Exhibit 10) The specific reasons stated in that notice are as follows: Respondent Determination Lintas Non-responsive. Failed to submit a TV commercial storyboard required by Section 5.9.6,B.6. Failed to complete Disclosure Affidavit question 7.b. The Ad Team Non-responsive. Failed to submit TV commercial storyboard (5.9.6,B.6) and 3 product or package designs (5.9.5,3.f). Absence of certification re: lack of audited financial statements (5.9.3,F). Ogilvy & Mather Non-responsive. Failed to submit all resumes and/or selection criteria (5.9.5,2) and 30 second radio spot (5.9.6,B.3). Proposal bond late (3.26). Apparent non- compliance with 3.8, "Conflict of Interest and Disclosure." Failed to complete Disclosure Affidavit, question 7. Beber Silverstein Non-responsive. Failed to present complete financial statements as required by Section 5.9.3,F). Footnotes were not included in any of the three years' statements; disclaimer of opinion on 1989 Statements of Operations and Cash Flows; absence of certification for lack of audited statements (1990 & 1988). Section 2.2 of the subject RFP contains the following definition of the terms "Responsive Proposal" and "Responsible Respondent." Responsive Proposal - A timely submitted proposal which conforms in all material respects to the RFP and which contains, in the manner required by this RFP, all documentation, drawings, information, plans, materials, certifications, affirmations, and documentation of qualifications and other matters required by the RFP. Responsible Respondent - A firm judged by the Lottery to be fully capable of providing the services required, considering security, integrity and financial condition. Section 2.6 of the subject RFP contains the following regarding the timetable for the procurement: October 15, 1991: Separately sealed technical and price proposals must be received at the Lottery's Headquarters, Purchasing Office, 250 Marriott Drive, Tallahassee, Florida 32301, no later than 2:00 p.m. Proposals must be addressed to the Issuing Officer as specified in Section 2.3. All technical proposals will be opened by Lottery employees starting at or after 2:01 p.m. at the Lottery Headquarters. The public may attend the opening but may not review any proposals submitted. The names of respondents will be read aloud, and the names of firms submitting "no proposal" responses will be read. Section 3.1 of the subject RFP contains the following provisions regarding "Mandatory Requirements:" 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. Section 3.2 of the subject RFP contains the following relevant provisions regarding "Non-Responsive Proposals:" 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 as mandatory, or without which an adequate analysis and comparison of proposals is impossible, or those which affect the competitiveness of proposals or the cost to the State. The Lottery reserves the right to determine which proposals meet the material requirements of the RFP. Respondents which in the Lottery's judgment, after the investigations required by Section 24.111, Florida Statutes, fail to demonstrate sufficient financial responsibility, security and integrity, shall be rejected as non-responsible. Section 3.5 of the subject RFP includes the following provisions regarding an opportunity to ask questions about the RFP: Questions concerning conditions and specifications of this RFP, and/or requests for changes to conditions and specifications must be in writing, addressed to the Issuing Officer, and received no later than 5:00 p.m. on September 17, 1991. The Lottery will prepare tentative responses to all questions and/or requests for changes, timely received, for discussion at a pre-proposal conference to be held at 2:00 p.m., September 24, 1991. Copies of questions and final answers, along with any changes to the RFP resulting from or following discussion at the pre-proposal conference, will be mailed to all firms who were furnished a copy of this RFP by the Lottery, in the form of a written addendum, as soon as reasonably practicable. Respondents submitting a proposal must submit by the proposal deadline written acknowledgment of any addendum. In response to a vendor inquiry as to the meaning of the term "minor irregularity," the Department responded in the last addendum to the RFP by citing and quoting Rule 13A-1.001(32), Florida Administrative Code, which reads: Minor Irregularity - A variation from the invitation to bid/request for proposal terms and conditions which does not affect the price of the bid/proposal, or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency. Sections 3.7 and 3.8 of the subject RFP contain the following provisions regarding required disclosures.: Vendor Information and Disclosure. Respondents must provide information and disclosures required by Section 24.111, Florida Statutes. Copies of the Lottery's Vendor Information Addendum and Disclosure Affidavit Forms to be completed are attached hereto as Attachments "A" and "B." These forms must be properly completed, executed and submitted with Respondent's technical proposal. Conflict of Interest and Disclosure. The award hereunder is subject to the provisions of Chapters 24 and 112, Florida Statutes. Respondents must disclose with their proposals whether any officer, director, employee or agent is also an officer or an employee of the Lottery, the State of Florida, or any of its agencies. All firms must disclose the name of any state officer or employee who owns, directly or indirectly, an interest of five percent (5%) or more in the Respondent's firm or any of its branches or affiliates. All Respondents must also disclose the name of any employee, agent, lobbyist, previous employee of the Lottery, or other person, who has received or will receive compensation of any kind, or who has registered or is required to register under Section 112.3215, Florida Statutes, in seeking to influence the actions of the Lottery in connection with this procurement. Section 3.26 of the subject RFP contains the following provisions regarding the required proposal bond: Each Respondent is required to accompany its technical proposal with a certified or cashier's check or bid bond in the amount of $125,000 or have on file with the Department of Lottery an annual bid bond of at least $125,000. The check or bid bond shall be payable to the Department of Lottery. This check/bond is to insure against withdrawal from competition subsequent to submitting of the proposal and to guarantee performance when the Contract is awarded. This check/bond will be returned to all unsuccessful Respondents immediately upon the execution of the Contract. Sections 5.1, 5.2, and 5.3 of the subject RFP include the following requirements regarding the preparation and submission of proposals: Proposal Labeling. Respondent's technical proposal MUST be in a separate sealed envelope or other container and MUST be identified as the Respondent's technical proposal. The face of the envelope or other container shall contain the following information: Request for Proposal for Advertising and Related Services 2:00 p.m. October 15, 1991 Technical Proposal Name of Respondent Each Respondent's price proposal MUST be in a separate sealed envelope and MUST be identified as the Respondent's price proposal. The face of the envelope shall contain the following information: Request for Proposal for Advertising and Related Services 2:00 p.m. October 15, 1991 Price Proposal Name of Respondent Copies of Proposals. Respondents shall deliver an ORIGINAL AND SIX COPIES OF THE TECHNICAL PROPOSAL AND ONE COPY OF THE PRICE PROPOSAL AND CREATIVE SAMPLES to the Lottery no later than the date and time in which all proposals must be timely submitted. Information and materials submitted in response to a previous RFP will not be considered in connection with this RFP #92-005-LOT/TEN/P. This is not intended to preclude a respondent from submitting information or materials previously submitted provided they conform to the requirements of this RFP. 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. Proposals which for any reason are not timely received will not be considered. Late proposals will be declared non- responsive, and will not be scored. Unsealed and/or unsigned proposals by telegram, telephone, or facsimile transmission or other means are not acceptable, and will be declared non-responsive, and will not be scored. A proposal may not be altered after opening. Section 5.9.3 of the subject RFP describes as follows the documentation which must be submitted to demonstrate vendor responsibility: The proposing firm must submit the following documentation to establish that it is a responsible respondent: Vendor Information Addendum (Attachment A) Disclosure Affidavit (Attachment B) Sworn Statement on Public Entity Crimes (Attachment C) Statement of Agreement to Abide by the Lottery's Code of Ethics, Rule 53ER88- 79(3), Florida Administrative Code (Attachment D) Proposal Bond required by Section 3.26, in the amount of $125,000. Certified financial statements in customary form for the last three (3) fiscal years if they are completed, 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 (CPA). If certified financial statements including an auditor's report were not prepared for one or more of the last three fiscal years respondent shall certify that fact, and shall submit in lieu thereof review reports of financial statements prepared by a CPA for the same period of time. The Lottery will not accept, in lieu thereof, financial statements prepared in whole or in part by an accountant as a result of a compilation engagement. If the parent company of Respondent intends to financially guarantee Respondent's performance of contractual obligations, then Respondent may, to satisfy this requirement, submit such financial statements of the parent company in lieu of its own plus a binding letter from the parent company expressing its commitment to financially guarantee the Respondent. In such event, the parent company shall be required to sign the Contract as Guarantor and shall be held accountable for all terms and conditions of the Contract. The language in Section 5.9.3,F which conditions the use of review reports on the submission of a certificate that there are no audited financial statements was for the purpose of minimizing the possibility that a vendor who had received an adverse audited opinion might conceal the adverse opinion from the Department by obtaining and submitting a favorable review report which did not disclose the adverse opinion. Section 5.9.4 of the subject RFP addresses the subject of "Firm Qualifications." The opening sentence of Section 5.9.4 reads as follows: "At minimum, each Respondent must provide the following information which demonstrates the Respondent's ability to provide the services requested." Section 5.9.5 of the subject RFP includes the following provisions regarding personnel qualifications: Provide the following information: Address the firm's plans for staffing the Lottery account. Include position titles, numbers, duties and responsibilities, and names of incumbents proposed to work on the Lottery account. Include both agency and subcontractor personnel. Resumes not to exceed one page each in length of all agency and subcontractor personnel who would be compensated in accordance with section 5.11.1 of this RFP, with a statement identifying the percentage of time, calculated annually, of each person who will work on the Lottery account. If recruitment of personnel to fill a position will be required, indicate firm's criteria for selection including, as appropriate, education, experience, knowledge, skills and abilities, etc. Creative samples (one copy of each) previously produced for the Respondent with the participation of key members of the proposed Lottery creative team and equal to the quality of the products proposed in your marketing plan, to include: * * * f) Three examples of product design or package design. Section 5.9.6 of the subject RFP contains the following provisions requiring a "Plan of Service:" 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. It is the intent of the Lottery that the Plan of Service be based on the premise that all products and product attributes remain as they are now. The plan of service shall consist of the following information and materials: A proposed advertising approach for the Florida Lottery which addresses the following items: A two-year summary outline advertising plan. Respondents shall include recommendations for advertising and promotions, and shall provide a plan for progress reporting, and ongoing evaluation and monitoring. A proposed one-year timetable for advertising, showing development of creative, production, approval, placement and run-time. Plan, Script and Comprehensive artistic representations (comps) of the following: A detailed media plan for an eight (8) week Florida Lottery Instant Game which has 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 Instant Game; A point-of-sale example for the Instant Game; A television commercial storyboard. All exhibits must be permanently marked or labeled, with identification of the proposing firm, and the specific section(s) of the RFP to which they respond. The requirement for submission of a television commercial storyboard was elaborated upon by responses which the Department made to two distinct questions submitted by the firms, Bozell, Inc., and West & Company. West & Company asked if proposers were prohibited from submitting fully executed television commercials and the Department responded that proposers were prohibited from submitting fully executed television commercials in complying with the RFP requirement for a television commercial storyboard. Bozell submitted a much more elaborate question in two parts. First, Bozell asked if a proposer could submit a television commercial in a more finished form using an animatic form as an example of a more finished form. The Department respondent in the negative. Second, Bozell asked if a proposer could submit such other more finished forms of television commercials in addition to the storyboard. Again, the Department answered in the negative. In responding thusly, the Department clearly indicated that it desired only traditional two-dimensional storyboards and would not accept more finished forms of television commercial concepts such as animatics. Also, the Lottery indicated that it did not wish to receive television commercial concepts in any form other than the traditional two-dimensional storyboard. The term "television commercial storyboard " is not defined in the RFP, but no definition is really necessary because the term has a clearly understood meaning in the advertising industry. It means a two-dimensional illustration of an advertising concept, presented on stiff cardboard or some similar material, and containing art work (illustrations or still photographs) to demonstrate the visual concept, and containing written words to demonstrate the text and/or describe any special effects. Television commercial storyboards have been in common use since the first days of television advertising and continue to be in common use today. Much more recently, especially since the advent of video cameras, alternative ways of presenting advertising concepts have come into popular use. These newer alternatives include video presentations, one type of which is known in the trade as "animatics," and another type of which is referred to as "stealamatics" or "ripamatics." An "animatic" is, in essence, a series of artistic drawings which is recorded on video. The drawings are developed specifically for a given "animatic" and are presented on the video in a manner which conveys the scenes and sequences in a proposed commercial. An "animatic" typically looks very much like a rough moving cartoon. More often than not an animatic will also include a sound track with a rough version of the words or music for the proposed commercial. An "animatic" is a more finished product than a two-dimensional storyboard because it more nearly resembles the format of the final version of the proposed concept. A "stealamatic" or a "ripamatic" is a video recording typically constructed from a variety of existing film footage and voice and music recordings. The film and sound used in a "stealamatic" or "ripamatic" frequently belong to people other than those who are creating the video, hence the name. "Stealamatics" and "ripamatics" are, in essence, a collage of second- hand images and sounds created for other purposes which are roughly edited together to demonstrate the creative concept of a proposed commercial. The video footage and sound track of a typical "stealamatic" or "ripamatic" is not of television commercial air quality and is not a finished product that can be used for actual advertising. The typical "stealamatic" or "ripamatic" is, in essence, a rough draft of a television commercial designed to demonstrate the primary ingredients of an advertising concept. Although rough, the typical "stealamatic" or "ripamatic" is a more finished product than an "animatic" in the sense that it more closely resembles the finished product than does an "animatic." If the concept of a proposed commercial involves critical timing, special effects, humor, or emotion, a "stealamatic" video is the most effective way, and often the only practical way, to present such a concept. "Animatics" and "stealamatics/ripamatics" are now commonly used in the presentation of advertising concepts in lieu of the old-fashioned, but still often useful, two-dimensional storyboards; they are frequent substitutes for two-dimensional storyboards. But "animatics" and "stealamatics/ripamatics" have not become storyboards and the term "television commercial storyboard" still means a two-dimensional presentation on a board-like material. Section 6.1 of the subject RFP contains the following provisions with regard to the allocation of points during the evaluation of the technical proposals: Firm Qualifications. - (Maximum 31 points) Size and Resources - Maximum 5 points Advertising Experience - Maximum 16 points Example of a Complete Campaign - Maximum 10 points Personnel Qualifications. - (Maximum 18 points) Staffing (numbers, levels, roles) - Maximum 5 points Resumes - Maximum 5 points Creative Samples - Maximum 8 points 6.1.3. Plan of Service - (Maximum 16 points) Advertising Plan and Timetable - Maximum 8 points Plan, Script and Artistic - Maximum 8 points Representations 6.1.4. Certified Minority Business Enterprise Participation. - (Maximum 10 points) Authorized Expenses - Maximum 5 points (1 point for each 2/10 percent (.2%) of participation) Agency Compensation - Maximum 5 points (Respondent's price) (1 point for each 3 percent (3%) of participation) Section 5.9.3 of the subject RFP requires that the proposing firm must, among other things, submit a "Disclosure Affidavit." The Disclosure Affidavit is attached to the RFP and is designated as Attachment B. All proposing firms who were corporations were required to answer Question 7 on Attachment B. Question 7 on Attachment B reads as follows: 7. Please complete either 7a or 7b, whichever is appropriate. RESPONDENT is not a publicly traded corporation. The names and addresses of the shareholders of RESPONDENT are as follows: The above-named persons constitute all of the shareholders of RESPONDENT. RESPONDENT is a publicly traded corporation. The names and addresses of the shareholders of RESPONDENT which own 5% or more of the corporate stock are as follows: The above-named persons constitute all of the shareholders of RESPONDENT which own 5% or more of the corporate stock. Findings regarding the Ad Team of Florida, Inc. Paragraph 5.9.6,B,6 of the RFP (as amended by Addendum 3) requires the submission of a television commercial storyboard. The Ad Team attempted to comply with this provision by submitting a video cassette which contained two short video presentations illustrating proposed advertising concepts. One of these presentations, titled The Fortune Teller, is what is known in the advertising business as an "animatic;" a rough cartoon with some animation and a sound track. The other of these presentations, titled Stars and Stripes, is what is known in the advertising business as a "stealamatic" or "ripamatic." Neither of the presentations on the video cassette submitted by the Ad Team is a television commercial storyboard. Section 5.9.5,3,F requires that a bidder provide three examples of product design or package design that, (1) were previously produced by the bidder, and (2) that were produced with the participation of key members of the proposed Lottery creative team. At the time of submission of its proposal, the Ad Team did not have three examples of product or package design that had earlier been produced with the participation of key members of the proposed Lottery team. Therefore, the Ad Team could not and did not submit three examples of product design or package design that had previously been produced with the participation of key members of the Lottery team. The Ad Team's failure to submit three examples of package or product design did not change the pricing of the proposal submitted to the Department by the Ad Team. The Ad Team did not gain a competitive advantage by virtue of its failure to submit three examples of product or package design. The Ad Team submitted complete review reports of financial statements for the last three years. The Ad Team did not submit any document certifying that no audited financial statements had been prepared for the Ad Team for the past three fiscal years. The Ad Team did not gain a competitive advantage by virtue of its failure to submit the certification that it had no audited financial statements for the past three years. The failure to submit the subject certification leaves the Department with no basis in the proposal materials for having confidence that no adverse audited statements are being concealed, and to that extent diminishes the extent to which it is prudent for the Department to rely on the financial statements submitted. Findings regarding Beber Silverstein & Partners Advertising, Inc. The only issue regarding the proposal submitted by Beber Silverstein relates to its efforts to comply with the requirements of Section 5.9.3,F of the RFP. In response to the requirements of that section of the RFP, Beber Silverstein supplied financial statements for the years 1988, 1989, and 1990. However, the footnotes to all of these financial statements were inadvertently omitted from Beber Silverstein's proposal. The footnotes were prepared by Beber Silversmith's accountants at the time the financial statements were prepared and were in Beber Silverstein's possession. The footnotes were simply inadvertently omitted during the preparation of Beber Silverstein's proposal. The Department of the Lottery knew at the time it reviewed Beber Silverstein's proposal for responsiveness that the vendor possessed the footnotes to the financial statements. In fact, the Department had previously reviewed these footnotes in Beber Silverstein's response to the first Request for Proposal earlier during 1991 when Beber Silverstein's proposal in the earlier RFP was evaluated by the Department. Beber Silverstein could have supplied the Department with the subject footnotes immediately after the omission was brought to Beber Silverstein's attention. The omission of the footnotes did not affect the cost or price of Beber Silverstein's proposal. The footnotes to financial statements do not change the figures presented on the face of the financial statements, but the footnotes are an integral part of any financial statement. The vast majority of the information necessary to conduct a meaningful review of a company's financial responsibility is contained in the footnotes to the financial statements. It is not possible to determine a company's financial responsibility from a review of financial statements without footnotes. In direct response to a request from its bank, Beber Silverstein had its balance sheet audited for the year 1989. However, it did not request its accountants to audit the statements of operations and cash flows for the year 1989 since the bank did not request it. Beber Silverstein provided the Department with all financial statements (except the footnotes) that were available on the company for the year 1989. The accountants' opinion for the 1989 statements clearly acknowledges that they were not engaged to audit the statements of operations and cash flows and, accordingly, no accountants' opinion was expressed on them. However the accountants' opinion for the 1989 statements does not explain why they were not engaged to audit the statements of operations and cash flows. Even though the accountants' opinion for Beber Silverstein's 1989 financial statement does not contain any opinion regarding the statements of operations and cash flows, the level of analysis actually performed by the accountants on the 1989 statements of operations and cash flows met the minimum standards for a review report. This was clarified in a letter dated May 1, 1991, which was submitted in conjunction with Beber Silverstein's prior proposal, but which letter was not included as part of Beber Silverstein's current proposal.2/ Beber Silverstein failed to include in its proposal the certification required by Section 5.9.3,F of the RFP to the effect that it did not have any audited financial statements for 1988 or 1990. The omission of the certificate was inadvertent. The absence of the certificate did not affect the price of Beber Silverstein's bid. Beber Silverstein supplied the Department with all financial statements (except for inadvertently omitted footnotes) that it had available. Although Beber Silverstein failed to provide a certificate, Beber Silverstein, in fact, did not have any audited financial statements (other than the 1989 balance sheet which was submitted). Findings regarding Benito Advertising, Inc. Benito Advertising, Inc., d/b/a Fahlgren Martin Benito, was founded in Tampa in 1954. It has offices in Tampa, Fort Lauderdale, Orlando, and Jacksonville. It employs approximately 70 people and its 1991 billings will be approximately $45 million. Benito Advertising, Inc., was acquired in 1989 by the Interpublic Group of Companies. Interpublic is one of the largest publicly-held advertising agency holding companies in the world with billings of $13 billion a year. Benito was subsequently assigned to Lintas:Worldwide, an operating unit of Interpublic. Benito and Lintas:Worldwide are wholly-owned subsidiaries of Interpublic. Attachment B to the RFP elicits the disclosure of ownership information (officers, directors, major shareholders, etc.) from vendors as required by Section 24.111, Florida Statutes. Question 7 thereof requires a corporate respondent to provide the names and addresses of its shareholders if the corporation is not publicly traded. A publicly traded corporation is required to state the names and addresses of those shareholders which own five percent or more of the corporate stock. The form which comprises Attachment B was never promulgated as a rule although it is intended for general use by the Lottery. Benito submitted five separate Disclosure Affidavits - one for Benito itself, one for Lintas:Worldwide, one for Interpublic Group, one for its Hispanic minority contractor, and one for its other minority partner. Benito responded "not applicable" to question 7-A on its affidavit as well as on the affidavit for Lintas:Worldwide on the bases that neither are publicly traded corporations because both are wholly-owned subsidiaries of Interpublic. The balance of the information on the five affidavits concerning officers, directors, shareholders, etc., was provided and is correct. Information concerning Benito's corporate status is alluded to throughout its proposal. More importantly, the corporate relationships as between Benito, Lintas, and Interpublic are explicitly stated in the Interpublic Annual Report which is a mandatory supplement to the proposal. Joan Schoubert, the Department accounting manager responsible for reviewing the annual reports and other financial statements, noted these corporate relationships in conjunction with her review and included the following statement on her reviewing document: Benito Advertising, Inc., d/b/a Fahlgren Martin Benito is a wholly - owned subsidiary of Lintas:Worldwide. Lintas:Worldwide is one of three operating subsidiaries of Interpublic Group of Companies, Inc. (guarantor of Respondents performance- bindings letter present) In the review of other proposals submitted in response to the subject RFP, the Department has overlooked an omission of information in response to a specific question if that information was otherwise available elsewhere in the proposal. An example of this is shown by the following notations on the Department's checklist concerning another proposal: Transmittal letter did not list subcontractors but they are revealed elsewhere, minor irregularity. Billings by media shown in percentages but can be interpreted in connection with Number 8. Paragraph 5.9.6,B,6 of the RFP (as amended by Addendum 3) requires the submission of a television commercial storyboard. Benito attempted to comply with this provision by submitting a so-called "video storyboard" which was recorded on a video cassette. This was submitted along with the balance of the proposal. Benito clearly stated in the text of the proposal that its "storyboard" was in video form. Benito's so-called "video storyboard" was in a format also referred to in the advertising business as a "stealamatic" or "ripamatic." Benito chose to utilize a "stealamatic" to convey its concept which, in essence, is nature photography with human voices inputed to the animals. This is very difficult to express in a two-dimensional format in that the concept does not have an actor carrying a story line. Furthermore, Benito knew that it was not going to be able to present the concept in person and thus could not explain it to the people who were to evaluate it. Given the reliance of the Benito message on animals, another medium would not have been as effective. Findings regarding Ogilvy & Mather Advertising At the time it submitted its proposal, Ogilvy Group, Inc., d/b/a Ogilvy & Mather, failed to submit all resumes and/or selection criteria required in Section 5.9.5,2 of the RFP. Further, it failed to submit a 30-second radio spot as required by Section 5.9.6,B,3 of the RFP and it failed to submit with its proposal the appropriate proposal bond required by Section 3.26 of the RFP. It further failed to comply with Section 3.8 of the RFP by failing to disclose the name of any employee, agent, lobbyist, previous employee of the Lottery, or other person who has received compensation of any kind or who has registered under Section 112.3215, Florida Statutes, in seeking to influence the actions of the Lottery in connection with this procurement. Finally, Ogilvy Group, Inc., failed to complete question 7 of the Disclosure Affidavit required by Section 3.7 of the RFP. With regard to the failure of Ogilvy Group, Inc., to submit all resumes and/or selection criteria required by Section 5.9.5,2 of the RFP, its submission in this regard was missing 17 resumes and 6 descriptions of selection criteria. The 6 missing descriptions covered 13 positions. Three of the missing resumes were found to be located in other portions of the Ogilvy Group, Inc., proposal, but 14 resumes are nowhere to be found in the proposal. Without the information of the missing resumes and in the missing descriptions of selection criteria, it would be difficult, if not impossible, for the Department to perform an adequate analysis and comparison of the Ogilvy Group, Inc., proposal with other proposals. The Ogilvy Group, Inc., also failed to submit a 30-second radio spot. Instead it submitted two 60-second radio spots because of its belief that 30- second radio spots are not economically feasible. With regard to the late submission of Ogilvy Group's, Inc., proposal bond, its attorney and lobbyist, James J. Cooney, Esquire, delivered its bid package (which included the original and six copies of its technical proposal) to the offices of the Department of the Lottery sometime shortly after 1:00 p.m. on October 21, 1991. The original technical proposal and each copy of the technical proposal contained a photocopy of the Ogilvy Group, Inc., proposal bond, which was in the form of a certified check in the amount of $125,000.00. The original certified check was in Mr. Cooney's pocket. The Ogilvy Group, Inc., proposal materials (minus the original certified check, which remained in Mr. Cooney's pocket) were logged-in and officially received by the Department of the Lottery at 1:39 p.m. that afternoon. Mr. Cooney then physically accompanied the dolly on which the Ogilvy & Mather proposal materials had been placed, up the elevator and into the room designated for the bid opening. After Mr. Cooney had accompanied the proposal materials to the room where the bid opening was to occur, Mr. Cooney handed the $125,000.00 certified check to Russ Rothman. The delivery of the check to Mr. Rothman occurred shortly after 2:00 p.m., but shortly before any of the proposals were opened. The deadline for submitting bids was 2:00 p.m. Ogilvy Group, Inc., has retained the services of James J. Cooney, Esquire, as a registered lobbyist and attorney. Mr. Cooney is registered as a lobbyist for Ogilvy Group, Inc., pursuant to Section 112.3215, Florida Statutes. During the period between the issuance of the subject RFP and the submission of the subject proposals, Mr. Cooney on several occasions contacted functionaries of the Department of the Lottery, including the Issuing Officer, Mr. Rothman, in attempts to influence the Department's decision with respect to using previously submitted materials as part of the Ogilvy Group, Inc., proposal in the instant RFP. Such communications by Mr. Cooney were efforts to influence the actions of the Department of the Lottery in connection with the instant procurement. Officials of Ogilvy Group, Inc., were aware of Mr. Cooney's efforts in this regard. Ogilvy Group, Inc., is a corporation that does business under the fictitious name of Ogilvy & Mather. Ogilvy Group, Inc., was the proposing entity on its proposal. As proposing entity, it executed a Disclosure Affidavit (Attachment B to the RFP). Corporations submitting a Disclosure Affidavit were required to answer either Question 7a or 7b. The Ogilvy Group, Inc., did not provide any answer to either Question 7a or 7b. This was because the Chief Financial Officer of the Ogilvy Group, Inc., did not believe that Question 7a was applicable and did not believe that any answer to 7b was required because there was no one who owned five percent or more of the stock of WPP Group, plc, the parent company of which Ogilvy Group, Inc., is a wholly-owned subsidiary. Even though Ogilvy Group, Inc., failed to answer either Question 7a or 7b on the Disclosure Affidavit, information concerning its corporate status and its relationship to WPP Group, plc, is contained in other portions of its proposal. Joan Schoubert, the Department accounting manager responsible for reviewing the annual reports and other financial statements, was able to determine from the information in other portions of the proposal that Ogilvy Group, Inc., was a wholly-owned subsidiary of Ogilvy & Mather Worldwide, which was in turn a wholly-owned subsidiary of WPP Group, plc.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Department of Lottery issue a final order in these consolidated cases concluding that, on the basis of the findings of fact and conclusions of law set forth above, all four of the proposals submitted by all four of the Petitioners are not responsive to RFP #92-005-LOT/TEN/P. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of January 1992. MICHAEL M. PARRISH 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 7th day of January 1992.
The Issue The issue presented here concerns the entitlement of the Petitioners to be granted licenses to work in the Mutuels Department of the Fronton, Inc., a Florida Jai Alai concession located in West Palm Beach, Florida. More specifically, the matter to be resolved concerns the Respondent's refusal to license the named Petitioners in the aforementioned capacity based upon the alleged activities of those Petitioners during the 1977 season of the New Port Rhode Island Jai Alai Fronton. The Petitioners are alleged to have conspired to commit a fraudulent or corrupt practice in relation to the game of jai alai and committing fraud or corruption in relation to the game through conspiring to use and using positions as handicappers in misleading the public for the Petitioners' benefit, contrary to Rule 7E-3.12, Florida Administrative Code. It is further alleged that the Petitioners have violated Rule 7E-3.05, Florida Administrative Code, by associating with their fellow co-Petitioner with a knowledge that the co-Petitioner has violated State of Florida's rules and regulations related to jai alai by conspiring to commit and committing a corrupt and fraudulent practice in relation to the game of jai alai as specified in the discussion of Rule 7E-3.12, Florida Administrative Code. The Respondent also claims that it has information, to include the information related in the discussion of the two rules provisions, which information is a prima facia indication that the Petitioners are not of good moral character as required by Chapter 550, Florida Statutes, because of their conduct in the relation to the game of jai alai, which conduct would cause a reasonable man to have substantial doubt about the Petitioners' honesty, fairness and respect for the rights of others and would erode the public's confidence and the honest outcome of jai alai matches in the State of Florida. 1/
Findings Of Fact Prior to the season for the jai alai known as the Fronton, Inc., located in West Palm Beach, Florida, for the years 1980-81, the Petitioners In the above-styled actions made application for an occupational license to be granted by the Respondent. The licenses requested were to work as employees of the Fronton, Inc., in the mutuels department. The applications for licensure on the part of the Petitioners concerned re-licensure for the upcoming jai alai season in West Palm Beach, Florida. The Petitione'rs had never been denied an occupational license by the Respondent in the past. After reviewing the license applications, the Division Director of the Division of Pari-Mutuel Wagering issued letters on November 4, 1980, directed to the named Petitioners, denying their license requests. A copy of that correspondence may be found as Respondent's Composite Exhibit No. 1, admitted into evidence. The grounds for license denial were as set forth In the issues statement of this Recommended Order. The letters of denial indicated the Opportunity for the Petitioners to request a Section 120.57, Florida Statutes, hearing and the Petitioners availed themselves of that opportunity. Subsequent to the request for a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, the Respondent forwarded the case to the Division of Administrative Hearings for a formal hearing. That hearing was conducted on the dates as stated in the introductory portion of this Recommended Order. At the time of the hearing, and continuing to the point of the entry of this Recommended Order, the parties are still desirous of being granted the subject occupational licenses. These licenses are required by the terms and conditions set forth in Section 550.10, Florida Statutes (1980). The Petitioners have complied with all procedural requirements for licensure and are entitled to be licensed unless the grounds for license denial as stated in the November 4, 1980, correspondence are well-founded. During the 1977 jai alai season at the Rhode Island Jai Alai in New Port, Rhode Island, Petitioner Gallo was employed as a sellers" This employment involved punching tickets in the mutuels area of the Fronton where tickets are issued to bettors. Petitioner Barth also worked at the Fronton in the calculating room as an employee of the Fronton. This is the area where the money is collected from the bettors and tabulated. In that racing season, while employed by the Fronton in Rhode Island, Gallo, Barth and one Robert Fusco, were involved as partners in a venture known as "list betting." Each of the partners had contributed five to six thousand dollars ($5,000.00 to $6,000.00) for the purpose of conducting "list betting." In particular, the "list betting" involved the placement of numerous combinations of numbers on each jai alai game in an effort to win the trifecta portion of the wagering on the individual games. To be successful in the trifecta wager, it was necessary that the three-number combination which constitutes an individual wager comport with the individual team performance for win, place and show. As example, if the individual number combination bet was 8-1-2, then the number (8) team would need to win, the number (1) team would need to place, and the number (2) team would need to show. The partnership was betting from a list of trifecta combinations which were the result of research conducted by the partnership on the subject of other jai alai seasons. The list of those numbers utilized in the betting may be found as Petitioners' Exhibit No. 4, admitted into evidence. The partnership utilized the "list betting" system for all games during the 1977 season up to August 24, 1977, when the partnership was dissolved. The philosophy of the "list betting" was to win often enough and in sufficient amounts of money to offset the cost of high volume betting. In this pursuit, the partnership leaned toward the utilization of trifecta combination numbers which would grant the largest return in a winning payoff, as opposed to being concerned with the frequency of the payoff of the chosen combination trifecta number. In addition, the skill of the players in the jai alai game was not a critical factor. The amount of money being spent on the individual games varied from five, to, eight hundred dollars ($500.00 to $800.00) and, as a result of the "list betting" activities of the partnership, the partnership realized a profit. The money that was won was constituted of the proceeds from the trifecta pool In a given game less cost deductions extracted by the State and the Fronton. The money pool that remained after these cost items had been deducted was divided between the winning ticket holders in the trifecta pool on an equal basis. Therefore, the fewer winning tickets, the larger the monetary return. After August 24, 1977, the Petitioners still continued to make trifecta bets, but not as part of the partnership. One of the other functions that the Petitioners performed together with another Fronton employee, Thomas F. Dietz, was the position as handicapper. (Dietz was a statistician at the Fronton.) Dietz and the Petitioners each would pick a single combination of three numbers to be placed on the game programs for each of the games during the meet under a code identification. Gallo was under the heading Massachusetts; Barth, Rhode Island; and Dietz, Connecticut. Dietz, In turn, made a determination about the "consensus" of the handicappers and made a three-number combination entry on the program under the heading "consensus." These handicap, picks, are depicted in copies of the racing programs which are found in the Respondent's Composite Exhibit No. 4, admitted into evidence. Gallo stopped making handicap selections some three or four days after August 24, 1977, and Dietz stopped his handicap selections on September 15, 1977. Barth made handicap selections for the entire season. It is not certain what the Fronton intended in having the handicappers place their "handicap line" on the game programs; however, the only compensation which the handicappers would receive from the Fronton for their efforts was a. monetary prize of twenty-five dollars ($25.00) to be awarded at the end of each month for that handicapper who selected the most quiniela predictions. (A quiniela nick is a combination of three numbers in which the successful bettor must have selected the win and place numbers in his three-number selection, without regard for the order of selection. As an example, if the quiniela picked by the bettor was the combination 1-2-3, and the winning number was (2) and the place number was (3), the bettor would win the quiniela selection.) There was no testimony on the subject of the betting public's perception of the "handicap line" found on the programs and nothing about those programs identifies the intended purpose. An analysis of those number combinations on the program, which are picks of a combination of three numbers within the range of (1) through (8)(the numbers representing the players in their game position), leads to the conclusion that the numbers could have been utilized by the betting public as trifecta or quiniela bets. The successful utilization of those numbers as a trifecta pick would always entail success as a quiniela selection, but a successful quiniela bet would not always be a successful trifecta bet. The established breakdown of betting patterns in the jai alai season shows that 55 to 60 percent of bets were made as quinielas. Management expressed no Opposition during the course of the season to the fact that the Petitioners were "list bettors"; employees of the Fronton and handicappers during the same time period. Moreover, it was not, per se, a violation of the regulatory statutes and rules in Rhode Island for an employee to be a "list bettor." It is the juxtaposition of "list bettor/employee/handicapper, which has put the question of the Petitioners' current request for licensure in Florida at issue. In this regard, the witness Dietz' testimony establishes the fact that on numerous occasions, during the 1977 jai alai season in Rhode Island, Gallo requested that Dietz change the numerical order of his picks in his position as handicapper for the individual games as appeared on the programs, because Gallo was of the persuasion that the Dietz selections interfered with the Opportunity for Gallo and Barth to be successful in their trifecta "list betting." Whether the fact of Dietz' changes in his "handicap line" brought about greater success for the Petitioners "list betting" system was not established in the course of the hearing. It is apparent that there was a substantial difference in the utilization of the numbers in Petitioners' Exhibit No. 4 (constituted of "list betting" combination numbers), in Barth's program selection In the "handicap line" several weeks prior to August 24, 1977, and several weeks beyond that point, the August date being the date that the partnership was dissolved. The comparison of these numbers demonstrates that Barth utilized the number combinations found in Petitioners' Exhibit No. 4, four times as much in the several week period beyond August 24, 1977, as contrasted with the several week period prior to August 24, 1977. Gallo had stopped handicapping some three or four days after August 24, 1977, so a comparison of the utilization of numbers in Petitioners' Exhibit No. 4, as a basis for handicap selections is limited to three or four days prior to August 24, 1977, and three or four days beyond that date. Again, Gallo used the numbers from the list for handicap selections subsequent to August 24, 1977, for that three or four day period as compared to the three or four day period prior to that date, roughly four times as frequently. A similar comparison of Dietz' handicap selections from several weeks prior to August 24, 1977, and several weeks after August 24, 1977, in the sense of the utilization of number combinations that were found in the Petitioners' Exhibit No. 4; shows that Dietz used those number combinations essentially with the same frequency prior to and after August 24, 1977. This analysis of the matter takes into account the fact that Gallo and Barth, on a few occasions, did not act as handicappers. An analysis of the Gallo, Barth and Dietz choice of handicap numbers and the comments of Gallo made to Dietz about changing Dietz' number combinations when Dietz was handicapping, leads to the conclusion that the Petitioners felt that there was some relationship between exempting the numbers from their list in Petitioners' Exhibit No. 4 from the handicap selections and Dietz altering his numbers on the handicap selections and success in the Petitioners' "list betting" pursuit. This is further substantiated by the fact that around August 24 or 25, 1977, Dietz asked Gallo why the nature of his selections in handicapping had changed and Gallo replied to the effect that he, Gallo, had stopped his "list betting" activities so he could now use "good numbers' without hurting his winnings. The evidence in this case does not reveal the success that the Petitioners had in this pursuit due to the choice not to use numbers from their list in their handicap selections and due to the change of Dietz' handicap selections promoted by the Petitioner Gallo. The lack of data on the question of the overall effect of removing the Petitioners' numbers in their Exhibit No. 4, from the "handicap line" and the further lack of testimony on the question of the public's utilization of the "handicap numbers," does not allow factual conclusions to be drawn on the question of the effect of the Petitioners' action on the outcome of betting; and the possible additional money to be realized by the Petitioners through the implementation of their technique of withholding the numbers from their list and influencing Dietz to change his numbers on order of finish, which caused the public to use the "handicap numbers" for trifecta betting, thereby decreasing the general public's opportunity to be successful In the trifecta bet.
Recommendation Based upon a full consideration of the facts found and the conclusions of law reached herein, it is RECOMMENDED: That Richard Joseph Barth and John Randy Gallo he denied occupational licenses to work in the mutuels department of the Fronton, Inc., West Palm Beach, Florida, for the 1981-82 season and that this recommendation he effectuated by the entry of a final order agreeing with the findings of fact, conclusions of law and recommendations set forth. DONE and ENTERED this 2nd day of November, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 2nd day of November, 1981.
