The Issue Whether the changes to the Department's Invitation to Bid (Rebid II) suggested by Polaroid and/or NBS should be made? GENERAL. The Parties. The Department is the state agency charged with, among other things, the responsibility to adopt and implement a program for the production of color photographic drivers' licenses for the State of Florida, pursuant to Chapter 322, Florida Statutes. Polaroid and NBS are the two major suppliers of equipment and materials used in the majority of states to produce color photographic drivers' licenses. Both serve approximately 50 percent of the States. NBS is the current supplier of color photographic drivers' licenses in the State of Florida. Definitions. Florida's color photographic drivers' license is essentially a picture of the driver and a data card containing pertinent information about the driver. A camera takes a picture of the driver and the data card simultaneously. The picture is developed in a relatively short period of time and the resulting picture is laminated with a clear plastic. The size of the portion of the driver photographed and the data card are reduced, obviously, when the picture is taken. The terms reduction factor refer to the size of the resulting license compared to the original data card. For example, a requirement that the license not have a reduction factor of greater than 40 percent means that the resulting size of the picture of the data card photographed must be a least 60 percent of its original size. The resulting picture of the driver and the data card is referred to as the core. The core consists of a picture of the driver's face, neck and shoulders, the data card and a "header bar" which is the area above the data card containing "Florida Driver License" on the currently used drivers' license in Florida. The core may be fully laminated with clear plastic. If so, the laminate may be sealed in two ways: "flush-cut" or "lip-seal." If the lamination goes just to the edges of the core, this is referred to as a flush- cut design. If the laminate goes beyond the edges of the core and the front and back lamination is sealed together, this is referred to as a lip-seal design. The type of film used generally is referred to as either "paper-based film" or "plastic or polyester-based film." If the core consist of paper-based film the core will consist of a layer of plastic on the front and back and a paper center. If the core consist of plastic-based film the core will be all plastic. An ultraviolet or black-light security feature means that letters or an image of some kind can be seen with the naked eye only under an ultraviolet or black-light. HISTORY OF FLORIDA'S COLOR PHOTOGRAPHIC DRIVERS' LICENSE. The Initial Contract. Color photographic drivers' licenses (hereinafter referred to as "License" or "Licenses"), have been used in the State of Florida since December 3, 1973. The initial contract entered into by the Department for the provision of Licenses (hereinafter referred to as the "Initial Contract") was with DEK Processes Division of Scott & Fetzer Company. The DEK Processes Division of Scott & Fetzer Company was acquired by NBS in March of 1985. The Initial Contract was entered into for the period 1973 to 1977. The Licenses produced pursuant to the Initial Contract were laminated with a lip seal, measured 3-3/8" x 2-1/8", had a paper-based film core which measured 2-3/4" x 1-3/4" and cost the State 37.98 cents per License. The Initial Contract was renewed in 1977. The renewed contract was valid through 1981 and provided for Licenses which measured 3-3/8" x 2-1/8", flush-cut sealed lamination, a polyester-based film core and cost the State 36.725 cents per License. By using a flush-cut seal, the size of the film core increased to the same size as the License. This increase in size was instituted because of negative reactions to the legibility of the Licenses produced under the Initial Contract raised by law enforcement, merchants and the public. The 1982 Contract. In 1981 the Department solicited bids for a new four-year contract with a four-year extension option (increasing the length of the contract to June 30, 1990). The 1981 Invitation to Bid allowed a large or small license and the use of a paper-based or plastic-based film core. Both Polaroid and NBS submitted bids on the 1981 Invitation to Bid. NBS was awarded the contract, which it entered into with the Department on February 22, 1982 (hereinafter referred to as the "1982 Contract"). The 1982 Contract contained the following relevant provisions: The initial term of the contract was through June 30, 1986; Licenses were to be lip-sealed; The Licenses were to measure not less than 2-3/4" wide and 1-3/4" high and not more than 3-3/8" x 2-1/4" before lamination; A paper-based film core measuring 2-3/9" x 2-3/4"; The price per License to the State during the first four years was to be 42.9 cents; The price per License to the State during any extension was to be 42.9 cents plus or minus the increase or decrease in the cost of material; and The contract could be extended for an additional four years through June 30, 1990. The laminate had to be bonded to the License in such a way that it would be impossible to remove the laminate without destroying the License; and The License had to have an ultraviolet or "black- light" security feature. The current Florida License is produced pursuant to an extension of the 1982 Contract. The First Invitation to Bid - 1985. In June of 1985 the Department decided to issue an invitation to bid seeking to let a new License contract rather than exercising the option to renew the 1982 Contract. This decision was made because of a desire to improve the legibility, security and durability of the currently produced License. In June, 1985, Major Clay W. Keith, former Director of the Department's Division of Drivers' Licenses, proposed the appointment of a task force to study the License in use in 1985 under the 1982 Contract and possible improvements thereto. Major Keith proposed the task force in anticipation of the June, 1986, expiration of the initial four-year term of the 1982 Contract. Three major concerns were raised by the Department with regard to any License the State issued: legibility, durability and security. The Department had received complaints from law enforcement and merchants concerning eligibility of the existing License and previous Licenses. The Department had also received complaints concerning the ability to counterfeit or alter the existing License and previous Licenses. The Department had also had problems with the durability of previous Licenses. Additionally, current law allows renewal of Licenses for six year terms and up to eight or ten years in some cases. On July 3, 1985, Major Keith advised Mr. Leonard R. Mellon, the Director of the Department, and Mr. Fred Dickinson, Deputy Director of the Department, by memorandum that a task force of persons with the expertise believed to be needed to study the existing License was being formed to decide what type of License to use in the future. 0n July 10, 1985, Mr. Mellon wrote a note to Major Keith indicating the following: I do not want a task force established for this purpose. Please see me as soon as possible to discuss this matter. Major Keith, as directed, saw Mr. Mellon. Mr. Mellon gave Major Keith a sample License and told Major Keith that the sample License was what the Department wanted. The sample License was an all-plastic License, similar in design and thickness to a credit card. It had embossed letters, like a credit card, of certain information. Mr. Mellon explained that the sample License would meet the Department's desire to provide a License which was durable, legible and secure. Mr. Mellon obtained the sample License he gave to Major Keith from representatives of NBS, including Barry Horenbein, during a demonstration of identification cards made by DEK sometime during 1985. The 1985 demonstration was attended by Mr. Mellon, Mr. Horenbein, Mr. Vince Toffany, Mr. Carlos Urrutia and Mr. Bobby Bowick. Mr. Toffany, Mr. Urrutia and Mr. Bowick are representatives of NBS. Mr. Horenbein is the legislative liaison of NBS in Florida and has been a close personal friend of Mr. Mellon for over 27 years. The Department ultimately learned that the sample License given to Major Keith by Mr. Mellon could not be produced in the manner that Licenses are produced in Florida. The sample License was produced in a laboratory-type setting and it would be too costly to produce "over the counter" as Licenses are produced in Florida. In the Fall of 1985 the Department issued an invitation to bid instead of renewing the 1982 Contract with NBS and decided not to attempt to produce a License identical to the sample License given to Major Keith by Mr. Mellon. The Department decided to issue an invitation to bid in order to obtained a more legible, durable and secure License. The Department issued an Invitation to Bid on November 27, 1985 (hereinafter referred to as the "First ITB"). Among the specifications contained in the First ITB, were the following: The film core of the License was to be a plastic-based film core; Lamination: flush-cut seal; The License was to measure 3-3/8" x 2-1/8"; and An ultraviolet security system. No requirement as to the maximum reduction factor was contained in the First ITB. At the time the First ITB was issued, Polaroid did not yet have plastic-based film. The Department was not aware of this fact at the time. NBS did have plastic-based film. Based upon information provided to the Department by Polaroid representative, the Department believed that Polaroid could provide a plastic-based film. In fact, Christ Rousseff, an employee of Polaroid, sent a letter dated August 2, 1985, to Mr. Mellon informing him that Polaroid could provide an all plastic-based License. Polaroid and NBS submitted bids in response to the First ITB in January, 1986. Polaroid's bid cost per License was 49.9 cents and NBS's bid cost per License was 56.6 cents. On January 27, 1986 the first bid tabulations indicated that Polaroid's bid was non-responsive as a result of Department of Agriculture testing of the License bid by Polaroid. Polaroid had used a paper-based film core which was revealed in the testing and was contrary to the specifications of the First ITB. NBS's bid to the First ITB was also rejected because the Department of General Services determined that there had not been two responsive bids submitted. The rejection of bids on the First ITB became final agency action. The Department began to prepare a new invitation to bid. On March 6, 1986, Polaroid, at the request of the Department, conducted a demonstration of the type of License it could provide to the Department. Polaroid demonstrated a fully-laminated, lip-sealed, paper-based film core License. The demonstration was attended by Major Keith, Mr. James W. McInnis and other employees of the Department. Mr. Mellon spent about 5 minutes at the demonstration. On March 12, 1986, Major Keith sent a memorandum to Mr. Mellon through Mr. Dickinson concerning the Polaroid demonstration. The Memorandum indicated that Division of Drivers' License personnel agreed that Polaroid had demonstrated the ability to provide an acceptable License. Extension of the 1982 Contract. On March 23 1986, a Sunday, Mr. Mellon and Mr. Dickinson spent the afternoon at the home of Mr. Horenbein. Present were Mr. Horenbein, Mr. Toffany and Mr. Bowick, all of whom represented NBS. A buffet dinner was served. Discussions occurred on this date concerning the price which would be charged for Licenses and whether additional cameras could be provided if the 1982 contract was extended for an additional four years pursuant to the renewal option contained in the 1982 Contract. Mr. Mellon, on behalf of the Department, and the representatives of NBS agreed at the Sunday dinner that the 1982 Contract would be extended. Agreement was reached on a price per License to be paid and on the provision of additional cameras. Other discussions had taken place concerning whether to extend the 1982 Contract. On Monday, March 24, 1986, Mr. Dickinson met with Department personnel and informed them that the 1982 Contract would be extended. A Renewal of Color Photographic Driver License Agreement was prepared. This agreement provided that the price per License for the extended term would be a set price of 42.9 cents instead of the 42.9 cents per License adjusted for any increase or decrease in the cost of sensitized photographic materials and laminates as specified in the 1982 Contract. The renewal also provided that NBS would provide additional camera equipment. The Department executed and tendered to the Department of General Services its proposed exercise of the option to renew the 1982 Contract. This action by the Department extended the 1982 Contract through June, 1990. Major Keith was not aware of the renewal until after the renewed agreement had been executed. At the time the Department exercised its option to extend the 1982 Contract, the Department only had one week left in which to exercise its option. The option to renew had to be exercised at least ninety days prior to the expiration of the initial term of the 1982 Contract. Because of the lack of time remaining during which the Department could exercise its option, Mr. Mellon decided that renewing the 1982 Contract was in the best interest of the Department. The Department was able to obtain a License at no substantial increase in cost for an additional four years. Following the execution of the renewal of the 1982 Contract, Polaroid filed two Notices of Protest which were filed with the Division of Administrative Hearings by the Department. The Protests were assigned case numbers 86-1337 and 86-1372. On May 6, 1986, Polaroid, the Department and NBS entered into an agreement settling the dispute in case numbers 86-1337 and 86-1372. Pursuant to the settlement agreement, NBS agreed to continue providing Licenses at a cost of 49.58 cents per License. The term of the renewal was shortened to expire on August 31, 1987 and the parties agreed that there would be no further extensions of the 1982 Contract agreed upon without the approval of the Governor and the Cabinet. Finally, the parties agreed that a new invitation to bid would be issued to obtain a provider of Licenses beginning September 1, 1987. The Governor and Cabinet approved the settlement in May of 1986. The settlement became final agency action. Licenses currently being produced in Florida pursuant to the renewal agreement approved by the Governors and the Cabinet contain a core slightly smaller than 1-3/4" x 2-3/4", are enclosed in lip-sealed lamination and use ultraviolet security markings on the back of the Licenses. The data card reduction factor is 42 percent. Rebid I. On June 6, 1986, the Department issued a Request for Information in an effort to preclude the development of noncompetitive specifications for future invitations to bid. In response to this request, Polaroid informed the Department that it could not provide an all-plastic License and NBS indicated that it could. On July 22, 1986, Mr. McInnis circulated the first draft of the specifications for the next invitation to bid to Department personnel. It specified a License with full lamination, lip-seal and a plastic-based or paper- based film core. The draft provided that the core of the License was to measure 3-1/8" x 1-7/8" prior to lamination. Ultraviolet light security markings were also required. For the first time, the draft of the specifications included a reduction factor requirement: The document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the data card shall not be less than 60 percent of the size of the photographed document. Section 4.8.1 of the draft invitation to rebid. This provision was included partially because of the responses to the Request for Information submitted to the Department by Polaroid and NBS. Major Keith was told by Mr. Dickinson that "the front office" wanted Rebid I to require a plastic-based film core. Major Keith understood the "front office" to mean Mr. Mellon. In developing the next invitation to bid, the Department determined that enhanced security was a critical concern that needed to be addressed. At least in part, the Department's concern for security was based upon questions raised about security from the Governor's office, the Cabinet and law enforcement. The Department attempted to determine what security features were available. The Department received sales and promotional brochures for various security products from Polaroid, 3M and Armstrong World Industries, Inc. Polaroid, NBS and 3M were all invited to demonstrate their security features to the Department and they made presentations. Polaroid demonstrated "Polasecure" and 3M demonstrated "Confirm." These products and Armstrong's "Armstrong Advantage" are security markings contained in laminating materials which change appearance when the viewing angle of a License changes. Polaroid and NBS made their presentations to the Department, at the Department's request, in September of 1986. The primary emphasis of the demonstrations was security. On October 3, 1986, the Department issued Invitation to Bid (Rebid I) (hereinafter referred to a "Rebid I"). In Rebid I, the Department included the same overall size requirement (3-3/8" x 2-1/8") included in the First ITB. The requirement that the film core be plastic (polyester, polycarbonate or an equivalent plastic) included in the First ITB was also included in Rebid I. The Department changed the seal specified in Rebid I to a lip-seal, added a requirement that the reduction factor should not exceed 40 percent and required a new security feature. Because lip-seal was specified, the Department also provided that the core of the License should measure 3-1/8" x 1-7/8." Rebid I also included the following security requirement which was not included in the First ITB: The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed. Section 4.8.3. of Rebid I. The new security feature specified in Rebid I provided for the following: The finished license or identification card shall contain pre-applied security markings affixed to the inside surface of the front of the laminate which, when laminated to the film core, will become an integral part of the core ... The security marking feature shall utilize a process which will render the security markings alternately visible and invisible as the viewing angle changes. Any alteration of the security marking must be easily discernible with the naked eye, requiring no auxiliary reading devises for verification. The pre-applied security markings must be secure against being photographically reproduced or copied. [Emphasis added]. Section 4.8.4 of Rebid I. Although the Department did not intend to provide any competitive advantage to Polaroid in specifying the security feature of Section 4.8.4 of Rebid I, NBS informed the Department that the description of the security feature underlined in finding of fact 65 was a generic description of "Polasecure." In fact, the language used came out of a speech given by a Mr. DeKeiver at a conference held in Washington D.C. Although Mr. DeKeiver apparently had no connection with Polaroid, the copy of the speech relied upon in drafting Section 4.8.4 of Rebid I was provided to the Department by Mr. Weer, a Polaroid representative. Rebid I provided that potential bidders could submit written changes to the specifications recommended by a potential bidder. In a letter dated October 16, 1986, NBS recommended that "the state require a specific security feature or security product... " other than Polasecure which would be available to both Polaroid and NBS. NBS also recommended that Section 4.8.3 of Rebid I be changed to require a full-cut seal instead of a lip-seal. Polaroid, in a letter dated October 16, 1986, recommended that paper- based film be allowed. On October 21, 1986, the Department rejected Polaroid's recommended change to allow paper-based film and NBS's recommendation to require a full-cut seal. The Department, because of its concern that Section 4.8.4 of Rebid I contained a description of Polasecure, accepted, in part, NBS's recommendation concerning the security feature. The Department changed the security requirement to provide that "Armstrong Advantage or Polaroid Polasecure or department approved equivalent pre-applied security markings ... " be affixed to the inside of the laminate. The Department made this change in an effort to eliminate any competitive advantage to potential bidders. Polaroid and NBS both submitted bids in response to Rebid I. On December 10, 1986, the Department's committee which evaluated the bids submitted in response to Rebid I reviewed the results of tests conducted on the License bid by Polaroid and NBS. NBS's bid was rejected because its License failed to disintegrate, as required by Rebid I, when the laminate was separated from the core. The committee therefore rejected NBS's bid without considering the price it had bid. Although NBS had recommended that the Department specify Armstrong Advantage as a security feature, this security feature was incompatible with the requirement that the photographic image be destroyed upon removal of the laminate. NBS was aware of this and so informed the Department. NBS did not timely inform the Department, however. NBS's proposed License failed to satisfy the test performed on the License because of this incompatibility. Polaroid's bid met the specifications of Rebid I and, upon opening the cost proposals, it was determined that Polaroid's bid price was 71.804 cents per License. On December 10, 1986, the evaluation committee prepared a memorandum in which it indicated that the Polaroid bid should be accepted. Major Keith approved the recommendation and sent the recommendation to Mr. Dickinson. Mr. Dickinson also recommended approval of Polaroid's bid and sent the recommendation on to Mr. Mellon. Mr. Mellon rejected Polaroid's bid because the Department had only budgeted 60.9 cents per License and Polaroid's bid of 71.804 cents was too far in excess of the budgeted amount. The amount budgeted by the Department was based in part on Polaroid's bid in the State of Ohio in September of 1986. Polaroid had bid 55.9 cents per license in Ohio. The Department arrived at 60.9 cents per License by adding approximately 5 cents to the amount bid in Ohio for the additional requirement contained in Rebid I of Polasecure. The product bid in Ohio was not, however, sufficiently similar to the License being sought by the Department to arrive at a budgeted amount for the Florida License. Ohio, unlike Florida, was not seeking a License with full lamination. Therefore, Ohio did not include the cost of laminating equipment, laminating materials or die cutters. There were other differences in Ohio's program which affected the cost bid by Polaroid in Ohio. The Department was not aware of the differences with the License bid in Ohio and the License the Department was seeking in Rebid I. The Department posted its tabulation on December 16, 1986. The Department indicated its decision to reject Polaroid's bid because "cost exceeds budget request." The Department's action with regard to Rebid I is final agency action. Rebid II. In January, 1987, the Department began drafting specifications for the next invitation to bid. Mr. McInnis was one of the primary technical drafters of the invitation to bid. Under the normal "chain-of-command" in the Department, Mr. McInnis received his instructions through or from Major Keith. In early January of 1986, Mr. McInnis was given a note on Mr. Dickinson's note paper by Mr. McCaskill containing the following: Plastic Size Security - Negotiable Maintenance/Serviceability Number of Cameras Mr. McCaskill explained to Mr. McInnis that the first two items, plastic and size, were not negotiable and that the 16 other items were to be studied further. Mr. McCaskill explained that the next invitation to bid was to provide for a License with a plastic- based film core and was to be the same size as in Rebid I, 3-1/8" x 1-7/8". The note from Mr. Dickinson was not received through Major Keith, which was the normal way that Mr. McInnis received instructions from Mr. Dickinson. Mr. McInnis prepared draft specifications and showed them to Major Keith along with the note from Mr. Dickinson. Major Keith instructed Mr. McInnis to submit the revised specifications back to Mr. Dickinson in the chain that he had received the note since Major Keith had not been involved in the instructions Mr. McInnis had received. Mr. Mellon's decision to instruct Mr. McInnis to specify plastic and to stick to the larger size License was made because Mr. Mellon believed that those items would insure a License that was durable, readable and had some security to it. The Department asked for the assistance of the Department of General Services in reviewing the draft of the invitation to bid. The Department of General Services reviewed the draft primarily with regard to the special conditions and not the technical specifications of the draft invitation to bid. On January 27, 1987, the Department issued its third invitation to bid, Invitation to Bid (Rebid II)(hereinafter referred to as "Rebid II"). Rebid II specified that the License was to have a plastic-based film core, lip seal, no more than a 40 percent reduction factor and was to measure 3- 1/8" x 1-7/8". These were the same specifications contained in Rebid I. The security feature contained in Rebid I was replaced with the ultraviolet light requirement of the First ITB. The decision to continue to require plastic-based film core was made by the Department because of Mr. Mellon's belief that it would result in a more durable, readable and secure License. The elimination of the security feature to be contained in the laminate was based upon the Department's desire to obtain a cost bid within the Department's budget. Potential bidders were required to submit any suggested changes to Rebid II in writing. On February 3, 1987, Polaroid timely submitted recommended changes in writing to the Department. The relevant recommended changes included the following: That the requirement of Section 4.8.1 of Rebid II that "photo sensitized polyester, polycarbonate, or an equivalent plastic material be changed to "photo sensitized material Polaroid recommended this change based upon its argument that sealing the photo core in a sealed and bonded polyester laminate would provide the necessary security and durability the Department was seeking and that paper-based film offered substantial cost savings; That the requirement of Section 4.8.1 of Rebid II as to the size of the photo core be changed to allow a range of sizes from 2-3/4" x 1-3/4" to 3-1/8" x 1-7/8". Polaroid recommended this change based upon its argument that the 40 percent maximum reduction factor could be met on a smaller film core and therefore reduce the cost of Licenses; That the ultraviolet light security feature be replaced with a requirement that Polasecure, Armstrong Advantage or equivalent security laminate be provided. Polaroid recommended this change based upon its argument that security would be enhanced at relatively little cost. The recommended changes in the size of the License and the film-core material are similar to the current License specifications. NBS did not submit any written recommended changes to Rebid II. By letter dated February 4, 1987, Secretary of State George Firestone asked Mr. Mellon about the Department's response to the suggested changes from Polaroid and requested an explanation of the specifications of Rebid II. In response to the Secretary of State's inquiry, Mr. Mellon submitted a letter and report to the Secretary of State. In part, Mr. Mellon told the Secretary of State the following: Both Polaroid and NBS have demonstrated their ability to provide a plastic core license. However, NBS informed the Department in a presentation made on September 17, 1986, that it will be unable to obtain paper film after the conclusion of their current contract with the State of Florida (August 31, 1987). They will be unable to bid on any contract for paper-based licenses after that date. In order to provide the State of Florida with the most durable license at the lowest cost, at least two bids providing the same durable core must be considered. Allowing vendors to bid two unlike products, either paper or plastic, would create a situation in which the products could not be objectively evaluated. That type of specification would also give a built-in price advantage to the vendor bidding a paper core, thereby prohibiting a competitive bid for the license, and increasing the price for the State. Mr. Mellon also suggested that the Department's decision to require a large license would make the License more legible and that requiring only an ultraviolet light feature for security was designed to reduce cost. In the draft of the response to the Secretary of State, the Department indicated that Polasecure, Armstrong advantage or similar security laminate would improve security and was preferred by the Department. This language was not contained in the final letter. On February 17, 1987, a meeting was conducted by the Department. It was attended by Mr. Mellon, Mr. Dickinson, Major Keith, Jim Cox and Mr. McCaskill. As a result of this meeting the Department decided to amend the specification contained in Section 4.8.1 of Rebid II pertaining to the film-core of the License. The Department decided to allow a paper-based or plastic-based film core in the hope that the cost bid by the vendors would come within the Department's budgeted amount. Polaroid's other suggested changes were rejected. On February 19, 1987, the Department issued Addenda III to Rebid II. Addenda III amended Rebid II by deleting the requirement that the core be plastic-based film and substituted the requirement that the core be "full color photosensitized material", i.e., paper-based or plastic-based. Addenda III also amended the requirements pertaining to samples. 0n February 20, 1987, Polaroid submitted a Notice of Protest to Rebid II, as amended. NBS submitted a Notice of Protest to Rebid II, as amended, on February 23, 1987. Polaroid and NBS both subsequently timely filed Formal Protests and Requests for Administrative Hearing. THE ALLEGED DEFICIENCIES OF REBID II, AS AMENDED. General Requirements of Rebid II, as Amended. A successful bidder to Rebid II would be required to furnish the Department with camera systems, photographic backdrops, film, laminating materials and equipment, training, support, maintenance and all other equipment and supplies necessary to produce Licenses and identification cards at License issuing offices of the Department throughout Florida. For each License or identification card produced, three film negatives must also be produced. The Department's License examiners will operate the equipment and produce Licenses. Approximately 1,000 examiners will have to be trained and supported. A fixed price for each License actually issued will be paid. Licenses not issued because of equipment problems or defective materials are not paid for by the Department. The driver, data card and header bar are photographed simultaneously and the images are optically combined by the camera system on a single piece of instant photographic film. The film is trimmed to the appropriate size in a "die cutter." The combined image recorded on the film core is simultaneously recorded on color negative roll film. Each negative is imprinted with a number. Two black and white, 16 millimeter roll film negative copies are made. A "rapid retrieval system" including two microfilm reader/printers, to retrieve copies of the negatives must be furnished by the successful bidder. The film core is to be laminated with a 1/8" lip seal. The License is to be the same size as a credit card, 2-1/8" high by 3-3/8" wide. This is the size of Licenses issued in most states. The License must be sufficiently durable to last seven years without deteriorating to the point that its functions are compromised. Printed data on the License should be sufficiently legible for law enforcement officers and others who rely on the License as a form of identification. The License should be secure it should be difficult to alter a License or to product a counterfeit License without the altered or counterfeit License being detectable. The primary goal of the Department in issuing Rebid II, as amended, was to provide a License at a reasonable cost which is legible, durable and secure. Polaroid's and NBS's Challenge to Rebid II, as Amended. Rebid II, as amended, represents the Department's third attempt to let a new contract for the issuance of Licenses. The Department's rejection of the first two attempts, the First ITB and Rebid I, have become final agency action. The extension of the 1982 Contract has also become final agency action. In this proceeding NBS has challenged the following portions of Rebid II, as amended: The requirement of Section 4.8.1 of Rebid II, as amended by Addendum III, that the film core is to be "full color photo sensitized material." NBS has contended that the film core should be composed of "polyester, polycarbonate or equivalent plastic material." The requirement of Section 4.8.1 of Rebid II that the "document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the date card shall be not less than 60 percent of the size of the photographed document." NBS has contended that a 30 percent reduction factor should be specified. The requirement of Section 4.8.3 of Rebid II that a lip-seal lamination design be used. NBS contends that a flush-cut design should be required. Polaroid challenged the following portions of Rebid II, as amended: The requirement of Section 4.8.1 of Rebid II, as amended by Addendum III that the film core be "3-1/8 inches wide and 1-7/8 inches high prior to lamination." Polaroid contends that a range of sizes should be specified, from 2-7/8 to 3-1/8 inches wide and from 1- 3/4 to 1-7/8 inches high. The requirement of Section 4.8.4 of Rebid II which requires a black-light security feature. Polaroid contends that the Department should specify a security marking applied to the inside of the front laminate which is visible in ordinary light and is alternately visible and invisible as the angle of viewing the License is changed. The requirement of Section 4.10.4 of Rebid II that no applicant be required to wait for a second applicant before the first applicant's License is processed. The parties stipulated that this challenge arose as a result of a misunderstanding of the requirements of Section 4.10.4 of Rebid II. Based upon a clarification of this Section by the Department Polaroid agreed not to pursue this portion of its challenge to Rebid II. At the final hearing, Polaroid and NBS maintained that the Department had evidenced a bias in favor of the other. Film Core; Section 4.8.1 of Rebid II, as Amended by Addendum III. Section 4.8.1 of Rebid II, as amended by Addendum III, provides, in pertinent part: The finished color photo core of the driver license or identification card shall be full color photo sensitized material .... This provision replaces the requirement of Rebid II before amendment that the License be "full color photosensitized polyester, polycarbonate, or an equivalent plastic material Other pertinent provisions of Rebid II which affect the type of film- core material include the following: The Color photographic image must remain stable and survive intact under conditions of strenuous wear and tear and the photographic image must not significantly deteriorate or become illegible during the life of the license (seven years). The Contractor shall bear the cost of materials and supplies for the reissuance of each license or identification card which must be reissued due to failure to meet these requirements. The license or identification card shall be fully laminated, front and back, with a 1/3 inch lip seal. The laminate shall be not less than .007 inches thick per side and the back must have a surface which can be written upon. Data to be specified by the Department shall be printed on the side of the laminate. The finished license shall be 3-3/8 inches wide by 2-1/8 inches high including lip-seal lamination. The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed. The finished license shall be not less than .021 inch and not more than .062 inch thick after lamination. The contractor shall be responsible for the supply of laminating equipment, materials, support services (e.g. training) and all other commodities necessary to assure that driver licenses have appropriate protection and security laminates. As a part of their equipment demonstration, bidders shall submit with their bid twenty- five (25) sample licenses and ten (10) sample identification cards for testing and evaluation by the State of Florida. The samples must be identical to the proposed license and identification cards. If the proposed samples submitted for testing do not fulfill the requirements of this ITB, the State may reject the bid solely on this basis. Samples must be submitted at no additional cost to the State and additional quantities specified by the Department for further testing after opening of the bid must be supplied as long as said quantity does not exceed 100. Sample licenses and identification cards will be tested by the Division of Chemistry, Department of Agriculture and Consumer Services of the State of Florida. These tests will include a tear test, an abrasion test, a tensile test, the use of a fadeometer, and a test of the ease of alteration. The tear test must exhibit a strength of at least 100 lbs., while the license must have a tensile strength of at least 250 lbs/in of width. The abrasion resistance must show either no or only a slight dulling of the surface after 300 strokes with a dry nylon brush and there should be no or only slight fading visible with the use of the fadeometer. The provision of Rebid II pertaining to the film-core material used cannot be reviewed in a vacuum. The provisions of Sections 4.8.2, 4.8.3 and 4.8.7 of Rebid II quoted above have not been challenged by Polaroid or NBS and must be considered when reviewing the film-core material requirement of Rebid II. When the provisions of Sections 4.8.2, 4.8.3 and 4.8.7 of Rebid II and the film-core requirement of Rebid II, as amended, are taken into account, the Department's goal of providing a legible, secure and durable License should be insured. The effect of Addendum III is to allow potential vendors to bid a License which contains a paper-based or plastic-based film core. NBS has contended that the Department is restricting competition by allowing a paper-based film core License to be bid. The evidence fails to support this contention. Polaroid is the primary manufacturer of paper-based instant photographic film, producing as much as 85 percent of such film. There is, however, at least one other manufacturer of paper-based film. That manufacturers is currently supplying paper-based film to NBS for use in producing the current License used in Florida. NBS has been notified by its current supplier of paper-based film that the film cannot be produced and supplied to NBS at the current price because it is only being manufactured for NBS's use in Florida. The evidence did not prove whether the statements made to NBS are true. Even if it is assumed that NBS cannot obtain paper-based film except at a higher price, the evidence did not prove that NBS cannot obtain paper-based film. Nor did the evidence prove that only one of the potential bidders could produce a License with "full color photo sensitized material." In the response to Rebid I, Polaroid and NBS produced a license which would meet this requirement. NBS's plastic-based film which it uses to produce Licenses has better contrast and resolution than Polaroid's paper-based film. NBS's Dekachrome polyester material, which is manufactured by Ciba-Geigy, will resolve in excess of 100 lines per millimeter, and may resolve up to 140 lines per millimeter, resulting in the ability to render a high degree of resolution for smaller items, including type or letters. Polaroid's film generally resolves at approximately 14 lines per millimeter, with a maximum resolution of 20 lines per millimeter. The NBS Dekachrome film has approximately a five to one factor of sharpness and clarity over Polaroid film. The contrast ratio of NBS Dekachrome material is approximately 77 percent and the contrast ratio of Polaroid film is approximately 73 percent. The difference in contrast and resolution can be measured in the laboratory. The evidence failed to prove that the differences significantly affect the legibility of Licenses actually produced using the film of Polaroid or NBS. The evidence also failed to prove that there is any significant difference in the legibility of Licenses produced with plastic-based film or paper-based film. There is no difference between Polaroid's plastic-based film and its paper-based film with regards to contrast and resolution. The difference in Polaroid film and NBS film is caused by the instant development process used by Polaroid and not by the difference in the material it uses. Therefore, the differences in contrast and resolution would exist even if Polaroid bid a plastic-based film. The evidence failed to prove that plastic-based alterations to Licenses or counterfeiting of Licenses. Rebid II, as amended, provides that sample Licenses are to be produced under the Department's supervision after bids are submitted. Those Licenses then must pass tests for tear strength, tensile strength, scratch resistance and resistance to fade. These provisions of Rebid II have not been challenged. These provisions will test the durability of the Licenses whether paper-based film or plastic-based film is used. Rebid II, as amended, allows the laminate to be a minimum of 0.007 inches to a maximum of 0.062 inches thick. The thickness of the laminate selected and the film core will affect the tear strength and tensile strength of Licenses. Use of a lip-seal laminate will also affect the durability of the License and eliminate the durability problems of paper-based film. Both Polaroid and NBS can bid in response to the requirement of Section 4.8.1 of Rebid II, as amended by Addendum III, that plastic-based or paper-based film be used. Reduction Factor; Section 4.8.1 of Rebid II, as Amended. Section 4.8.1 of Rebid II, as amended, provides, in pertinent part, the following requirement: The document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the data card shall be not less than 60 percent of the size of the photographed documents. The above quoted portion of Section 4.8.1 of Rebid II was contained in the original Rebid II issued by the Department on January 27, 1987, and was not amended by the Department. Section 4.8.1 of Rebid II also requires that the License core is to be 3-1/8 inches wide and 1-7/8 inches high prior to lamination. Section 4.8.3 of Rebid 11 requires that the finished License is to measure 3-3/8 inches wide by 2-1/8 inches high including lip-seal lamination. These requirements were contained in the original Rebid II issued by the Department on January 27, 1987, and were not amended by the Department. Sections 3.2 and 3.3.2 of Rebid II provide for consideration by the Department of proposed changes to Rebid II. Section 3.3.2 of Rebid II provides the following requirements with regard to the manner in which changes were to proposed by potential bidders: The bidder, who requests changes to the State's specifications, must identify and describe the bidder's difficulty in meeting the State's specifications, must provide detailed justification for a change, and must provide recommended changes to the specifications. Requests for changes to the Invitation to Bid must be received by the state not later than 5:00 p.m., February 3, 1987. A Bidder's failure to request changes by the date described above, shall be considered to constitute bidder's acceptance of State's specifications. NBS's challenge to the 40 percent reduction factor requirement of Section 4.8.1 of Rebid II was not suggested as a change to Rebid II by NBS prior to February 3, 1987. NBS did not, therefore, comply with the requirements of Sections 3.2 and 3.3.2 of Rebid II in suggesting that the maximum 40 percent reduction factor be changed to a maximum 30 percent reduction factor. Sections 3.2 and 3.3.2 of Rebid II have not been challenged by Polaroid or NBS. At the commencement of the final hearing of this case the Department announced that it intended to change the reduction factor requirement of Section 4.8.1 of Rebid II to require a maximum reduction factor of 30 percent instead of the maximum of 40 percent contained in Rebid II as challenged in this proceeding. Lip Seal; Section 4.8.3 of Rebid II, as Amended. Section 4.8.3 of Rebid II requires, in pertinent part, the following: The license or identification card shall be fully laminated, front and back, with a 1/8 inch lip seal. The laminate shall be no less than .007 inches thick per side and the back must have a surface which can be written upon. Data to be specified by the Department shall be printed on the inside of the laminate. The finished license shall be 3- 3/8 inches wide by 2-1/8 inches high including lip-seal lamination. The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed... [Emphasis added]. NBS's challenge to the lip-seal lamination requirement of Section 4.8.3 of Rebid II was not suggested as a change to Rebid II by NBS prior to February 3, 1987. NBS did not, therefore, comply with the requirements of Sections 3.2 and 3.3.2 of Rebid II in suggesting that a flush-cut seal be substituted for a lip-seal method of sealing the lamination. The estimated cost per unit of lip-seal lamination for NBS's Licenses is six to eight cents per License. The requirement of a lip-seal laminate contained in Rebid II was intended to provide additional security and durability. Lamination tends to prevent moisture, which causes deterioration of the License, from penetrating the photo emulsion of the photo-core. Whether plastic-based or paper-based film is used, the film emulsion layer may be scratched off if no lamination is used. Emulsion can also be removed from plastic-based film by moistening the film surface. The Department used a plastic, unlaminated License in 1978. The photo emulsions of this License came unattached from the license core and had to be laminated. The Department tried to use a flush-cut seal on paper-based film as a result of the problems it had with deterioration of the License produced by NBS in 1978. Flush-cut sealing of a paper-based film License does not stop the deterioration problems caused by water damage. The requirement of Section 4.8.3 of Rebid II that the License be lip- sealed is reasonably calculated to enhance the security and durability of the License. It will also enhance legibility by eliminating deterioration of the License. The requirement of Section 4.8.3 of Rebid II concerning lip-seal lamination does not restrict competition. Both Polaroid and NBS can bid a License with lip-seal lamination. F. Security; Section 4.8.4 of Rebid II, as Amended. Section 4.8.4 of Rebid II provides: The finished license or identification card shall contain security markings to be specified by the Department. The security markings shall be printed in fluorescent dye or a similar process so that they become visible when exposed to ultraviolet light. The security markings may be a part of the laminating process. Section 4.8.4 of Rebid I, as amended by Addenda III, provided: The finished license or identification card shall contain pre-applied security markings affixed to the inside surface of the front of the laminate which, when laminated to the film core, will become an integral part of the core. The graphic design of the pro- applied security markings must be approved by the Department. The security markings feature shall utilize a process which will render the security markings alternately visible and invisible as the viewing angle changes. Any alteration of the security markings must be easily discernible with the naked eye, requiring no auxiliary reading devices for verification. The pre-applied security markings must be secure against being photographically reproduced or copied. The First ITB contained the same security feature contained in Rebid II. A security feature like Polasecure, which changes appearance when the viewing angle changes, would provide a bettor deterrent to alterations and counterfeiting of Licenses than ultraviolet light. Such a security feature can be seen by law enforcement and others without any auxiliary viewing devices or special lighting. Although the security feature contained in Rebid I would enhance the security of Licenses, it was eliminated from Rebid II because of the inability of NBS to bid a License which contains such a feature and is consistent with the adhesion of the lamination specifications contained in Rebid I and Rebid II and because of the additional cost of such a feature. Polaroid had represented to the Department that Polasecure would increase the cost of a License by approximately five cents per License. The evidence failed to prove that this information is correct. The evidence suggests that additional cost of Polasecure is in excess of five cents per License. The ultraviolet security feature will provide security against unsophisticated counterfeiters and ensure the security goal of the Department is met. The Department is attempting to provide security against amateurs. Given enough time, any security feature can be counterfeited. Even products like Polasecure can be stolen from driver license offices and used to produce counterfeit Licenses. The Department properly weighed the need for a security feature for Licenses and the cost of such security features and has provided a reasonable security feature in Rebid II. Polaroid and NBS can produce a License which meets the security requirement of Rebid II. License Size; Section 4.8.1 of Rebid II, as Amended. Section 4.8.1 of Rebid II, as amended, requires that the core of Licenses measure 1-7/8 inches by 3-1/8 inches. Polaroid has suggested that this provision be changed to allow a range of 1-3/4 inches by 2-3/4 inches to 1-7/8 inches by 3-1/8 inches. The smaller size core suggested by Polaroid is used in 26 of the 27 states presently served by Polaroid and by various agencies of the federal government. If the smaller size core is allowed, Polaroid can produce two Licenses from one sheet of its film. If the larger size core is required Polaroid can only make one License from each sheet of film. The Department has required a larger License size in order to improve the legibility of Licenses. The Department is concerned about complaints it has received from law enforcement officers and others about the legibility of the currently used License. The current License is legible by anyone who meets the vision requirements for employment by the Florida Highway Patrol, given good lighting and proper lenses to correct any vision problems the person may have. Not everyone, however, meets the vision requirements for employment by the Florida Highway Patrol. More importantly, law enforcement officers are sometimes required to read Licenses under poor lighting conditions. It is therefore reasonable for the Department to attempt to improve License legibility. Factors which affect the legibility of a License include the quality of the printing on the data card used, the degree of contrast on the data card, the optical-reduction factor in the camera, and the quality of the photographic image produced by the camera and the film. The evidence did not prove that the difference in the size of the License specified in Section 4.8.1 of Rebid II, as amended, and the size suggested by Polaroid will affect the legibility of the License. Although evidence was presented during the final hearing concerning plans of the Department to improve the method in which the data card is printed, Sections 3.18 and 4.6.5 of Rebid II, as amended, specify that the Department's existing and currently used data card is to be used in submitting bids to Rebid II, as amended. These provisions have not been challenged. Legibility will be affected by the extent of the maximum reduction factor allowed. The smaller the maximum reduction factor allowed, the better the legibility will be. Once reduced, the data card must fit into the size specified for the License core. Therefore, the reduction factor specified and the size of the License core must be consistent. In the current License produced in Florida, the data card is reduced by 42 percent from its original size. The License produced in 1978 featured a 33 percent reduction factor. The requirement as to the size of the License core and the maximum 40 percent reduction factor contained in Rebid II, as amended, are inconsistent. Mr. McCaskell conducted a study which indicated that if a 40 percent reduction factor is used there will be a considerable amount of unused space on a License core which measures 1-7/8 inches by 3-1/8 inches. If the size of the License core is reduced to allow a License core measuring 1-3/4 inches by 2-3/4 inches, a data card reduced by 40 percent will not leave unused space. The specification as to the maximum 40 percent reduction factor was included in Rebid II as a compromise between what Polaroid and NBS had informed Mr. McInnis they could produce. It was not based upon any scientific analysis by Mr. McInnis. Although a data card reduced by a maximum 40 percent reduction factor will fit on the smaller License suggested by Polaroid, the legibility of the License will not be improved. If the maximum reduction factor is reduced from 40 percent to 30 percent, however, the legibility of the License will be enhanced. A data card reduced by a maximum reduction factor of 31 percent will fit into the space for the data card specified for a License core of the size specified in Section 4.8.1 of Rebid II, as amended. If the header bar is reduced slightly a data card reduced by a maximum reduction factor of 30 percent will fit onto a License core of the size specified in Section 4.8.1 of Rebid II, as amended. A data card reduced by a maximum reduction factor of 31 percent will also fit into the space for the data card specified for a License core of the smaller size suggested by Polaroid. If the header bar and the area for the driver's picture are reduced slightly, a data card reduced by a maximum reduction factor of 30 percent will fit onto a License core of the smaller size suggested by Polaroid. The size specified by the Department in Rebid II, as amended, will not directly affect the goal of improving the legibility of the License. Reducing the maximum reduction factor to 31 percent will improve legibility and will be consistent with the other requirements of Rebid II, as amended, as to the size of the header bar and the size of the photograph of the driver. Allowing the range of sizes in the License core suggested by Polaroid is consistent with a reduction of the maximum reduction factor. Allowing the suggested range of sizes may also result in a cost savings to the Department since Polaroid would be able to produce two Licenses from one sheet of film. The Department's actions with respect to the License core size and the reduction factor have been arbitrary. Reducing the maximum reduction factor and allowing the Polaroid's suggested range of sizes for the License core are more reasonable specifications. Both Polaroid and NBS can bid a License meeting a 31 percent maximum reduction factor requirement and the Polaroid suggested range of License core sizes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department add a paragraph to its invitation to bid informing potential bidders that failure to challenge the specifications of the invitation to bid within the time prescribed in Section 120.53(5), Florida Statutes (1985), and Rule 15-2.003(2)(b), Florida Administrative Code, will constitute a waiver of proceedings under Chapter 120, Florida Statutes. It is further RECOMMENDED that NBS's suggested changes to Rebid II, as amended, concerning the film core material specified in Section 4.8.1 of Rebid II, as amended, and lip-seal lamination specified in Section 4.8.3 of Rebid II, as amended, be denied. It is further RECOMMENDED that Section 4.8.1 of Rebid II, as amended, be amended to allow a maximum reduction factor of 30 percent. It is further RECOMMENDED that Polaroid's suggested changes to Rebid II, as amended, concerning the type of security feature specified in Section 4.8.4 of Rabid II, as amended, and the specification of Section 4.10.4 of Rebid II, as amended, be denied. It is further RECOMMENDED that Section 4.8.1 of Rebid II, as amended, be amended to allow the film core to measure 2-7/8 to 3-1/8 inches wide and 1-3/4 to 1-7/0 inches high. It is further RECOMMENDED that the size of the header bar and the space for the drivers' photograph be modified to accommodate a maximum 30 percent reduction factor and the smaller size License core. DONE and ENTERED this 4th day of June, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1125BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in, the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Polaroid's Proposed Findings of Fact Proposed Finding RO Number of Acceptance of Fact Number or Reason for Rejection 1. 1. 2. This proposed finding of fact is irrelevant except to the extent that Polaroid and NBS serve about half of the states. See paragraph 2. 3. 103. 4. 104. 5. 105. 6. 4 and 6. 7. 106. 8. 107. 9. 7 and 108. 10. 109. 11. 7. 12. 108. 13. 113. 14. 110. 15. 111. 16. 112. 17. Not supported by the weight of the evidence. 18. 114. 19. 116 and 117. 20-22 116. The portion of proposed finding of fact 22 which begins "but careful ..." is rejected as argument. 23-25. 117. 26. 114. 27. 118. 28-31. 20. 32. 52. 33-36. Hereby accepted. 37-38. Irrelevant. 39. 22-24. 40. 28. 41. 29. 42. 30-31. 43. 32-33. 44. 34-35. The last sentence is not supported by the weight of the evidence. 45. 36. 46. 37 and 40. 47. 40-41. 48. 42. 49. 43. 50. 44. 51. 45-46. 52. 45 and 48-49. 53. 48. 54. Hereby accepted. 55. 56. 49. The fact that "the Department did not approach Polaroid Corporation to determine if Polaroid could temporarily supply driver license systems during the same interim period is irrelevant. Irrelevant. 57. 50. 58. 51. 59-60. 53. 61. 54. 62. 54 and 63. 63. 54. 64-65. 55. 66. Not supported by the weight of the evidence. 67. 56. 68-69. 57. 70-71. 58. 72. 60. 73. 158. 74. 60. 75. 61. 76. 160. 77. Irrelevant. 78. 62. 79. 63. 80. 64. 81. 65. 82. 66. 83. Irrelevant. 84. 67. 85. 70. 86. 68. 87. 69. 88-90. 71. 91. 72. 92. 73. 93. 75. 94. Irrelevant. 95. Hereby accepted. 96. 75. 97. 76. 98-99. 77. 100. 82. 101. 78. 102. 79. 103. 80. 104. Irrelevant. 105. 83. Mr. McInnis was one of the 106. primary technical drafters. 84-85. The last sentence is not 107-108. supported by the weight of the evidence. 84. 109. 86. The last sentence is irrelevant. 110-111. 88. 112. 89. 113. 90. 114. 91-92. 115. 90. 116-117. Irrelevant. 118. 93. 119. 94. 120. 96. 121. 97. 122-123. 98. 124. Not supported by the weight of the evidence. 125-126. 99. 127-132. Not supported by the weight of the evidence. 133-134. 100. Irrelevant. Not supported by the weight of the evidence. 137. 101. 138. Not supported by the weight of the evidence. 139. 101 and 119. 140. 138. 141. 126. 142-144. Statements of law. 145. 128 and 133. 146. 132. 147. 134. 148. 135. 149. 136. 150. 137. 151. 153. 152. 150 and 153. 153. 151. 154. 164-165. 155. 166. 156. 157. 167. The last two sentences are not supported by the weight of the evidence. 168. 158. 169. 159. 170. 160. 161-165. Not supported by the weight of the evidence. Irrelevant. 166. 174-175. 167. Irrelevant. 168. 174. 169. Irrelevant. 170. 180. 171. 179. 172. 181. 173. Not supported by the weight of the evidence. 174-175. 183. 176. 184. 177. Hereby accepted. 178. Not supported by the weight of the evidence. 179. 159. 180. Not supported by the weight of the evidence. NBS's Proposed Findings of Fact 1. 1. 2. 2. The last-sentence is irrelevant. 3. 10-14. 4. 15. The last sentence is not supported by the weight of the evidence. 5. 16-18, 20-21 and 51. 6. 19. 7. 23. 8. 24. 9. 25-27. 10. Not supported by the weight of the evidence. 11. 37. 12. 35. 13. 36. The last sentence is irrelevant. 14. 38-40. 41. The second sentence is uncorroborated hearsay. 47-48. The last sentence is not supported by the weight of the evidence. 46. The last sentence is not supported by the weight of the evidence. 18. 49. 19. 50. 20. 51. 21. 43-44. Polaroid did not request permission to conduct a demonstration Polaroid was requested by the Department. The opinion expressed by Major Keith was the opinion of his office. 22. 53, 61-63, 65-68 and 71. 23. 72 and 74. 24. 73 and 75. 25. 76. 26. 76-77. 27. Irrelevant. 28. 77. 29. 89-90 and 93. 30. 94. 31. 97. 32. 98. 33. 100. 34. 101. 35. 102. 36. 139, 141 and 164. 37. 144. 38. Hereby accepted. 39. 177. 40. 174. 41. 179. 42. 175-176. 43. 175. Hereby accepted. Hereby accepted. 46. 145. 47. 7. Not supported by the weight of the evidence. Irrelevant. Not supported by the weight of the evidence. 51. 147. 52-56. Not supported by the weight of the evidence. 57. Irrelevant. 58. 155. 59. 156. 60. 157. 61. 162. 62-63. 66. 64-65. Irrelevant. 66-67. 74. 68. Not supported by the weight of the evidence. 69. 160. 70. 163. 71. 101 and 119. 72. 119. Not supported by the weight of the evidence. 125. The evidence failed to prove that "there exists virtually no other economical source for a similar paper based instant photographic product." 75. 126. 76-80. Not supported by the weight of the evidence. 81. 134. 82. Irrelevant. 83-86. Not supported by the weight of the evidence. 87. 128. 88. 129. 89. 130. 90. 131. 91. Irrelevant. 92. 133. The last sentence is not supported by the weight of the evidence. 93. 138. 94. 113. 95-96. Irrelevant. 97-102. Not supported by the weight of the evidence, irrelevant or statement of law. The Department's Proposed Findings of Fact 1. 4. 2. 119. 3-5. 120. 6. 121-122. 7. Statement of position. 8. 128. 9. 145. 10. 148-149. 11. 152. 12. 151-152. 13. Hereby accepted. 14. 154. 15. 139 and 144. 16-17. 168. 18. 173. 19. 179. 20. 172-173. 21. 22. 172. The last sentence is not supported by the weight of the evidence. 164. 23. 24. Not supported by the weight of the evidence. 113. 25. Irrelevant. 26. 27. Not supported by the weight of the evidence. 180. 28. 185. 29. 155. 30. 156. 31-32. 74 and 81. 33. 159. 34. 160. 35-38. 161. 39. 163. COPIES FURNISHED: Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 Enoch J. Whitney, Esquire General Counsel Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504 H. Michael Madsen, Esquire Douglas J. Rillstone, Esquire Messer, Vickers, Caparello, French & Madsen Post Office Box 1876 Tallahassee, Florida 32302-1876 Keith C. Tischler, Esquire Parker, Skelding, McVoy & Labasky Post Office Box 669 Tallahassee, Florida 32302 Robert G. Holderness, Esquire Robert G. Holderness & Associates 925 L. Street, Suite 1490 Sacramento, California 95814
Findings Of Fact On or about September 30, 1980, petitioner mailed its application to respondent for registration of the trademark "Cachet". Accompanying the application were a check for fifteen dollars ($15.00) and shoe insoles stamped "Cachet", each bearing an escutcheon and the legend "MADE IN SPAIN". On October 14, 1980, respondent returned petitioner's application, declining to register "Cachet" as a trademark in the absence of consent by Cachet, Inc., an unrelated active Florida corporation for profit with a Miami address, duly registered with respondent. Cachet, Inc. has not registered any trademark with respondent, and does not sell shoes. Ms. Nettie Sims, chief of respondent's bureau of corporate records and an employee of respondent for 27 years, testified that this action was in keeping with respondent's policy going back as far as she could remember.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Relinquishing Jurisdiction and Closing File by John D. C. Newton II, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Relinquishing Jurisdiction and Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s Notice of Withdrawal of Notice of Relocation and Motion to Dismiss, filed October 6, 2011. Accordingly, it is hereby ORDERED and that this case is DISMISSED. Filed October 26, 2011 9:16 AM Division of Administrative Hearings DONE AND ORDERED this_42 day of October, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Director Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division_of Motorist Services this A day of October, 2011. he Vinayak, Dealer Hicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within 30 days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCLivlg Copies furnished: J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Robert Craig Spickard, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32301 Michael L. Gore, Esquire Shutts and Bowen, LLP Post Office Box 4956 Orlando, Florida 32802 John D. C. Newton II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Section
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing Files and Relinquishing Jurisdiction by Stuart M. Leaner, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal of Notice of Termination, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Relinquishing Jurisdiction and Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and the Dealer Sales and Service Agreement between Villages Golf Cart Man, LLC and Electric Car Distributors, Inc. remains in full force and effect. Filed March 8, 2012 9:13 AM Division of Administrative Hearings DONE AND ORDERED this day of March, 2012, in Tallahassee, Leon County, Florida. Cau Lae Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this day of March, 2012. NOTICE OF APPEAL Ne Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jc Copies furnished: Warren Sistare Electric Car Distributors, Inc. 2306 North Dixie Highway Fort Lauderdale, Florida 33305 John W. Forehand, Esquire Kurkin Forehand Brandes, LLP 800 Nlorth Calhoun Street, Suite 1B Tallahassee, Florida 32303 Stuart M. Lerner Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Findings Of Fact In early 1984, the Florida Department of Law Enforcement in its Fingerprint Identification Section decided to replace some equipment used for purposes of analyzing finger prints. That equipment was three Kodak PR-1's, known as readers. The reason for the replacement concerned the fact that these machines had been in operation since 1969 and Kodak was no longer willing to undertake the service of the machines through a service agreement. Initially, the staff favored the idea of replacing the Kodak equipment with other Kodak equipment, having in mind the idea that Kodak was the only manufacturer that could meet the needs of this function within the Florida Department of Law Enforcement. If this suggestion had been accepted, then it would have been on the basis of a request to the Department of General Services to be given permission to enter into a contract with a sole source, namely Eastman Kodak. Indeed, preliminary steps were taken to purchase the Kodak IMT-50 reader-printer to substitute for the three PR-1's, as a noncompetitive purchase from the single source, Kodak. There had also been some discussion about the purchase of Kodak IMT-100's, a reader-printer which allowed multilevel blipping. That type of feature, i.e., multilevel blipping, was determined not to be necessary. Ultimately, the Florida Department of Law Enforcement determined to meet their needs for replacement of the PR-1 machines through a' competitive bidding, Bid No. 83-50. A copy of the invitation to bid may be found as Petitioner's Exhibit 14. This particular item is a response on the part of Lanier Business Products to the invitation to bid. Among the instructions in the invitation to bid was general condition Number 7 which reminded the prospective vendors to direct questions concerning the conditions and specifications set forth in the bid invitation to the Florida Department of Law Enforcement no later than ten days prior to the bid opening. Bid opening was scheduled for May 31, 1984. None of the vendors who offered bid responses questioned the meaning of any of the general conditions or specifications set forth in the invitation to bid related to the purchase of microfilm reader-printers as contemplated in the bid invitation. Eastman Kodak Company also submitted a bid. The bid response by Lanier Business Products was for the provision of a reader-printer known as the 900 Page Search manufactured by 3M. The Kodak product which was bid was the IMT-50 reader-printer. Another prospective bidder, Office Systems Consultants, submitted a "no bid," signifying the inability to meet the specifications of the invitation to bid. On May 31, 1984, the bid opening was held and a tabulation was made as to the bid responses offered by Lanier and Kodak. The unit price for each of the three microfilm reader-printers was $8,650 by Lanier and $9,040 by Kodak. Therefore, Lanier was the apparent low bidder on the project. Within the bid specifications are requirements which set forth specific needs for this project. One of those items pertains to film retrieval capability, and that provision states: Unit will retrieve, by automated means, 100 feet 16mm rolls of 5.4 mil film or 215 feet 16mm rolls of 2.5 mil film (such as Recordak AHU microfilm). Retrieval unit must be able to read, randomly, and ANSI standard document reference (Blip), and must have an advance-- return transport speed of 12 feet per second minimum. Related to lens requirements, the bid specifications indicated: Lens magnification must be 24:1 to be compat- operation. ible with present standards and be designed so that additional lens can be interchanged without interrupting the reader-printer Under the heading of general requirements the invitation to bid stated: By nature of the work requirements and pro- duction schedule, the equipment may be gener- ally described as a 16mm reader-printer capable of retrieving microfilm images by means of ANSI Standard Blips, and will be compatible with existing system. Prior to bid consideration, potential bidders will review, on site, typical production required as part of the overall routine of the finger- print section. Appointment for this inspec- tion will be made by calling (904) 488-9953. The Department will not alter the current production system. After bid opening and prior to award, vendors will conduct tests and provide demonstrations to personnel of the Department to assure a quality product compatible with the existing system. Where applicable, the film retrieval unit will conform to Florida Administrative Code, Chapter 1A-26. At the time the decision was made to replace the three PR-1 microfilm readers, the Identification Section within the Florida Department of Law Enforcement had four other machines which had reading capability. Those machines were also Kodak and are referred to as Starvue. As can be seen, neither the PR-1 nor the Starvue referred to had the capability to print. A review of Petitioner's Exhibit 3 reveals that the ability to print identification cards was accomplished through another Starvue type machine in operation prior to the bid invitation. When processing fingerprint cards within the Identification Section of the Respondent agency, the task of fingerprint identification and verification is addressed. Over and above this reading function, prints are sometimes made of fingerprint identification cards or documents related to a given subject. These prints either are made from the positive film being reviewed, the copy appearing as a negative image of that film, or in the alternative, the positive film is replaced with negative film and a positive print is made through the copying process. Copies were reproduced on the separate printer which the agency had available to it, prior to bidding for the purchase of three reader-printers contemplated by the invitation to bid under discussion. This required removing the film from the reader or substituting the film before printing. In addition, some lens changes within the readers would be necessary, on average a couple of times a day. The PR-1 machine had a telescoping lens which would allow magnification without lens replacement. The Starvue reader requires the replacement of the lens to gain greater magnification. This Kodak machine, following the lens substitution, would not lose contact with the image which had been on the screen prior to the substitution. The fingerprint analysis operators or technicians, at the time that the bid was prepared, used a 30:1 lens in performing their function of reading the fingerprint microfilm image. A 24:1 lens was needed for printing. Under these circumstances the Respondent indicates that in the bid specifications reference should have been made to a 30:1 lens as opposed to a 24:1 lens in describing lens requirements. The PR-1 machines that were being replaced did not have the capability to read blips on the given frames or images within the microfilm cartridges, thus automatic access of the roughly ten per cent of microfilm cartridges that contained the blips was not possible. Both the 3M 900 Series and the IMT-50 microfilm reader-printers allow for automatic retrieval of the image within the microfilm cartridge, as stated before, a required feature set forth in the invitation to bid. The operation of the Fingerprint Identification Section at the time of the bid invitation dealt with approximately forty-eight hundred reels of microfilm, 90 per cent of which could only be accessed manually. Most of the microfilm cartridges contained one hundred feet of microfilm. When reference is made in the bid document to the fact that the proposed equipment should allow for the changing of lenses without interrupting the operation of the reader-printer, this is a literal impossibility. While the first lens is being removed and the second lens is being placed, no reading or printing may occur. As a consequence, when officials with Lanier read this requirement, they perceived it as being some form of inconsequential mistake and did not seek clarification as contemplated by clause Number 7 of the general conditions to the invitation to bid. While it is not apparent from the reading of this requirement, the Florida Department of Law Enforcement intended this provision pertaining to lenses to mean that once the second lens had been placed in the machine, the image that had been being examined prior to the lens replacement would be immediately available for reading or printing. The IMT-50 Kodak equipment allows for that, the Starvue equipment by Kodak allows for that, and the PR-1 did not require lens replacement. By contrast, either in the manual mode or in the automated mode, the 3M 900 Series equipment might require a slight adjustment to recapture the image once the lens had been changed. This adjustment would take approximately two seconds to achieve. The reason for the differences between the 3M equipment and Kodak equipment concerns the fact that the power source in the 3M equipment is turned off when the lens is out of the machinery and the power source within the Kodak equipment remains constant even when the lens is removed. When the lens requirement is considered in the context of the idea expressed in the general requirements, that the Department did not intend by the replacement of its equipment to alter its current production system, use of the 3M equipment at times of lens interchange is not found to be out of compliance with that general requirement or condition. That determination is made realizing that the lens requirement was ambiguous, at best, and the more important fact that the amount of delay caused in using the 3M equipment in a lens change posture amounts to three operators x two occasions per day x two seconds per occasion or 12 seconds per day. This delay is inconsequential. On this topic, in its position in justifying its choice to reject Lanier's equipment as not complying with the lens requirement, suggestion has been made by the Florida Department of Law Enforcement that eight to ten lens changes per hour might be necessary in the "hard" identification of prints. This comment as offered as a justification for rejecting the Lanier bid as nonresponsive to the lens requirement is not borne out in the record of the hearing by competent proof. This information was imparted in Petitioner's Exhibit 45 which is information that the Florida Department of Law Enforcement submitted to the Department of General Services, having determined that the Lanier bid was not responsive because of a failure to comply with the lens requirement and the requirement for film retrieval capability, which will be discussed subsequently. That information in the exhibit was hearsay and was contradicted by the comments by two of the operators who utilized the reader-printers in the Fingerprint Identification Section. They are the source of the idea that lens changes occur once or twice a day, and their position has been accepted as factually correct. In summary, Lanier is found to have complied with the specific requirements for lens compatibility with existing needs of the Fingerprint Identification Section and future needs of that section. An official within the Florida Department of Law Enforcement had been informed by Kodak that the Starvue equipment in use by the Fingerprint Identification Section at the time that the bid invitation was prepared had a capability of performing the retrieval function at a pace of twelve feet per second. This pertained to both the forward and the return phase of that operation. Having this in mind, the previously described requirement for film retrieval capability was included within the bid specifications. Again, it was the intention of the Department, as expressed in that provision and the general requirements, that the replacement equipment maintain the same efficiency of production as existed. The manufacturers of the equipment which was offered in response to the bid have described their equipment in this fashion: The Kodak IMT-50 is described as having a speed advance of up to fourteen feet per second. The 3M 900 Series which was offered by Lanier carried a "rating" of twelve feet per second. The author of the bid specifications pertaining to film retrieval speed included within that section the phrase ". . . advance--return transport speed " This phrase is not used in the microfilm industry to describe film retrieval capability. Officials at Lanier perceived this as a manufacturer's speed "rating." Officials with Kodak who offered testimony at the hearing had various ideas about what advance and return transport speed meant, which opinions were not constant. Likewise, the author of this provision within the bid specifications offered variety in his explanation of the meaning of that phrase, that variety ranging from the idea of maximum speed when the machine was operating at full capacity in terms of the advancement or return of the microfilm within the machine, to the idea of maximum speed as ascertained shortly after the machine had started to advance or return the microfilm. In any event, he states that it did not mean transport speed as an average of time for a given length of film to move through the machine. Nothing about the specifications suggests that return transport speed equates to the idea of average speed, meaning the amount of time necessary to transport a given length of film through the machine either in the forward or reverse mode. When this requirement of transport speed is seen as a function of protecting against the acquisition of equipment that would not be as efficient as existing equipment, a further dilemma is presented. Edward E. Ricord, author of the specification related to film retrieval speed testified that testing had been done, unrelated to the present hearing, with the intention of describing the transport capabilities of preexisting equipment within the Florida Department of Law Enforcement. The recount of that testing was not offered as evidence by way of documentation. Nonetheless, the equipment that was existing is depicted as having the capability of transporting a ninety-six foot length of microfilm through the older machine, Starvue, in a shorter length of time than could be achieved by the 3M 900 Series. The Starvue was four seconds faster in the forward mode and ten seconds faster in the reverse or rewind phase than the 3M 900 Series, according to Ricord. The old machine was also described as being slower at one end and a little bit faster at the other end in transporting the ninety-six foot length of microfilm when contrasted with the IMT-50 Kodak. (The transport of ninety-six feet of film becomes significant in a later paragraph describing the basis for rejecting the Lanier bid offering as being unresponsive.) On the other hand, Carl Durian, one of the operators or technicians who has used the PR-1, the Starvue, the 3M 900 Series and the IMT-50 machines had these observations, in terms of a subjective analysis of speed. He felt that the Kodak IMT-50 was a subjectively faster operating machine when performing the retrieval function related to the movement of the microfilm through the machine when compared to the 3M 900 Series; however, the 3M 900 Series was found to be subjectively faster than either the Starvue or the PR-1. Finally, Durian felt that the Starvue was faster than the PR-1 when considering the retrieval capabilities of the various machines. Again, this firsthand information, though subjective, is of a better quality than the information offered by Ricord who recounted test results not produced at hearing. Looking at this problem in the most favorable light, there is conflict within the agency as to the issue of whether the 3M 900 Series equipment is as capable in the retrieval of microfilm, as a function of speed, as existing equipment within the Fingerprint Identification Section at the time that the bid invitation went out. This is significant, because, having no industry standards related to return transport speed and having no clear indication of what that term meant at the point of the preparation of the bid specification which is separate and apart from the capabilities of existing machines, it is taken to mean the capabilities of those existing machines, and the uncertainty about those capabilities must be resolved in favor of Lanier. Moreover, on this occasion the Florida Department of Law Enforcement cannot point to Lanier's obligation to ask the question about the meaning of return transport speed as a reason to reject the bid response, in that such a theoretical inquiry would not have elicited a satisfactory answer to the question and alerted Lanier that it was potentially incapable of satisfying the bid specifications related to microfilm retrieval. In accordance with the bid document, the vendors Lanier and Kodak were required to present one of their machines to the Department following the bid opening for purposes of evaluation. Once the machines were in place, some concerns were expressed about the difference in operating capabilities in the retrieval function of the two machines. To gain some understanding of those differences, a test was devised to measure the responsiveness of the two machines. The test, by its terms, measured the average time necessary to move ninety-six feet of microfilm through the machines in a forward and reverse mode. The tests were conducted, forward and reverse on each machine, by using a person holding a wrist watch and gaining an average of the time necessary to accomplish the functions, after an operator switched the machine into the fast forward and reverse positions to commence the test. The tests forward and reverse were executed three times. It was revealed that in the forward mode, the best performance by the 3M 900 Series was a speed of 5.99 feet per second and in the reserve mode 8.30 feet per second. By contrast, the speed of the Kodak IMT-50 was, at best, 12.80 feet per second in the forward mode and 16.16 feet per second in the reverse mode. No comparison was made at the time of that testing between the two proposed machines and the existing Starvue or PR-1 equipment. For that reason it is not graphically depicted whether the 3M 900 Series machine would slow down the operation of the Fingerprint Identification Section because of its inability to comply with the requirement for film retrieval. A description of the testing that was done between the 3M 900 Series and the IMT-50 cannot be found as a requirement within the bid specifications, nor does it comport with any expressed statement of what transport speed meant as described in the bid specification document. While it does point out a remarkable difference between the film retrieval capabilities of the Kodak IMT-50 and the 3M 900 Series, it does not establish that Lanier failed to comply with the bid specification related to film retrieval when offering the 3M 900 Series machine in response to the bid invitation. Lanier has met the requirement for film retrieval. In support of this finding, the scope of this inquiry as stipulated to between the parties does not allow for the discussion of the implications of the greater film retrieval capability of the Kodak IMT-50 when compared to the 3M 900 Series as it might pertain to work efficiency within the Fingerprint Identification Section. More significantly, even should it be demonstrated that this difference in film retrieval speed has a profound influence on work efficiency, it could not be said that the Lanier bid failed to meet specifications. The only consequence of this revelation might be that the agency would rebid the project, when examined in the abstract. Given what the agency considered to be a lack of responsiveness on the part of Lanier related to the lens requirement and film retrieval requirement, it was determined to seek permission from the State of Florida, Department of General Services to obtain the IMT-50 equipment from Kodak as a sole source. This is under the theory that in a competitive bid setting where only one responsive bidder has responded, a sole source purchase opportunity must be sought from the Department of General Services. Following some explanation, that authority was granted. When the authority was granted, the Department of General Services did not realize that Lanier had not been given a point of entry to question the rejection of its bid. When this circumstance was discovered, the Department of General Services recanted its stated permission pending the opportunity for Lanier to have due process concerning its claim of compliance with bid specifications. The decision by Department of General Services to change its position on permission for sole sourcing occurred on October 2, 1984. In the face of that statement and the advice by the Department of General Services that the Florida Department of Law Enforcement should give a point of entry to Lanier to contest the question of a determination that Lanier's bid was unresponsive, the Florida Department of Law Enforcement on December 17, 1984, officially noticed Lanier of the choice to award the contract to Eastman Kodak. Given this notification, a letter of protest was filed by counsel for Lanier on December 21, 1984. Kodak had been awarded the contract through the issuance of a purchase order from the Florida Department of Law Enforcement at a time when the Department of General Services had initially indicated the acceptability of a sole source arrangement, but before the October 2, 1984, decision by Department of General Services to rescind its permission to go sole source. As a part of the arrangement with Eastman Kodak, $262 per machine was allowed in the way of trade-in of the three PR-1 machines which were being replaced. The IMT-50 equipment is presently in place in the Fingerprint Identification Section of the Florida Department of Law Enforcement. Had Lanier placed the 3M 900 Series machines with the Florida Department of Law Enforcement, it would have made a profit of $5,700. This is offset by the cost of $4,080 which would have been necessary to convert the existing microfilm reels to fit the 3M equipment. With that deletion, the total profit from the sale becomes $1,620. The effective life of the 3M 900 Series of equipment is five years, and service revenues from those three reader-printers averages $2,940 per year x five years = $14,700 as total service revenues. The loss of revenues over the five-year span for the three reader-printers related to paper supplies is $24,300 based upon three reader-printers $4,860 per year. The figures given relate to gross charges for paper supplies. That paper has not been supplied, and no indication has been given on the difference between the vendor's cost for producing the paper and the retail price of the paper, giving a net figure as to profit. In view of the fact that the paper has not actually been delivered and in the absence of some indication as to the amount of net profit, this item of damages is not allowed. Finally, no indication was made as to the amount of labor cost and net profit related to the overall service charge, and, as with the paper supplies, this claim is disallowed. These items of damages are disallowed because the Petitioner would only be entitled to claim net profits, having never actually offered the services or supplies. An additional $810 is lost in interest income at a rate of ten per cent per year over the five-year effective life of the equipment, pertaining to use of the profits realized in selling the machines. The proven total damages to Lanier is $2,430. Claims by Lanier for loss of future earnings related to the sale of unrelated machines are not found to be convincing, in that they are too speculative in nature. The related claim for past damages if the 3M machines are installed is rejected in that the effective life of the machines starts from the time of their installation. Therefore, profits for sale, supplies and service would commence at that moment. Lanier is the lowest responsive bidder on Bid No. 83-50.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing Files and Relinquishing Jurisdiction by Mary Li Creasy an Administrative Law Judge of the Division of Administrative Hearings, and the Petitioner’s Notice of Dismissal of Protest with Prejudice, copies of which are attached and incorporated by reference in this order. Accordingly, it is hereby ORDERED that this case is DISMISSED. DONE AND ORDERED this IL day of June, 2014, in Tallahassee, Leon County, Florida. Filed in the official records of the Division of Motorist Services this day of June, —_ Bureau of Issuance Oversight 2014. Division of Motorist Services Department of Highway Safety and D- Motor Vehicles Vahn: U: Neil Kirkman Building, Room A338 Nalini Vinayak, Dealer License Administrator Tallahassee, Florida 32399 Filed June 19, 2014 7:40 AM Division of Administrative Hearings Copies furnished to: John W. Forehand, Esquire South Motors Automotive Group 16165 South Dixie Highway Miami, Florida 33157 John.forehand@southmotors.net Nalini Vinayak Dealer License Section Edward Quinton, Esquire Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 equinton@quintonparetti.com Mary Li Creasy Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Rick Barraza Miami Automotive Retail, Inc. 665 Southwest 8th Street Miami, Florida 33130 Mario Murgado Miami Automotive Retail, Inc. 665 Southwest 8th Street Miami, Florida 33130 J. Andrew Bertron, Esquire Melissa Fletcher Allaman, Esquire Nelson, Mullins, Riley and Scarborough 3600 Maclay Bouelvard South, Suite 202 Tallahassee, Florida 32312 Andy.bertron@nelsonmullins.com Melissa.allaman@nelsonmullins.com NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure.
The Issue Whether or not on or about October 28, 1976, investigation revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, failed to notify in writing, the Division of Beverages, of its change of name, 30 days in advance of such change, contrary to s. 561.33, F.S. Whether or not on or about November 4, 1976, investigation revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, did fail to submit and certified copy of the minutes of the stockholders' meeting, changing corporate officers, to the Division of Beverages, in violation of Rule 7A-2.07, F.A.C. Whether or not on or about November 12, 1976, investigation revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, had entered into an agreement with one Billy Gene McKinney, which agreement relinquished all or part of the management and control of the licensed premises contrary to Rule 7A-3.17, F.A.C.
Findings Of Fact The Zig Zag Bar, Inc. is the holder of license number 23-2702, series 2-COP, held with the State of Florida, Division of Alcoholic Beverages and Tobacco. This license is held to do business under the name Zig Zag Pub, located at 800 Alibaba Avenue, Opa-Locka, Florida. This case arises on the basis of an investigation conducted by Agent James P. Bates, State of Florida, Division of Alcoholic Beverages and Tobacco. On October 19, 1976 Agent Bates received information from an unidentified confidential informant that the Zig Zag Pub had been sold or leased to one Billy McKinney, a convicted felon. Having received that information, Bates took action to determine whether the Respondent, Zig Zag Bar, Inc. had entered into an agreement with Billy McKinney, which agreement possibly would have relinquished all or part of the management and control of the licensed premises contrary to Rule 7A-3.17, F.A.C. One aspect of the investigation, was the review of the records maintained by the Division of Alcoholic Beverages and Tobacco to determine if Bill McKinney was listed as one of the officers of the subject corporation. This record examination took place in October or November, 1976. This search did not show Bill McKinney being listed as a corporate officer. The corporate officers listed were Phyllis Charlene Henry, President, Sigride Kienle Sowell, also known as Sigride Kienle, Vice-President and Richard M. Knowles, Secretary- Treasurer. Agent Bates went to thee location of the Zig Zag Pub, at 800 Alibaba Avenue, Opa-Locka, Florida, on October 28, 1976. When he arrived he discovered an advertising sign in the front of the licensed premises reflecting the name "Bill's Place". On October 28, 1976 the records of the Petitioner indicated the official name of the licensed premises was Zig Zag Pub. This prompted Agent Bates to make a further inquiry into the true status of the licensed premises, on the subject of ownership and control. Agent Bates checked with the City of Opa-Locka, Florida and discovered that Bill McKinney had completed a questionnaire for an operating license to be held with the City of Opa-Locka, Florida. The license was issued to Zig Zag Pub in the name of Richard M. Knowles; however, the questionnaire application was completed by Bill McKinney who indicated that he was the owner-operator. This information is shown in Petitioner's Exhibits number 1 & number 2 admitted into evidence. Petitioner's Exhibit 1 is the questionnaire and Petitioner's Exhibit number 2 is the city license. Agent Bates also ascertained that Bill McKinney had obtained a water permit from the City of Opa-Locka for the benefit of the licensed premises. In the course of his investigation, Bates talked to Phyllis Charlene Henry, the named President of the Zig Zag Pub, Inc. Ms. Henry stated that the Zig Zag Pub, Inc. still maintained control of the licensed premises, even though the operating manager and Vice-President Sigride Kienle Sowell had left, leaving McKinney as the manager. Bates went to the licensed premises on November 12, 1976 and found Bill McKinney working behind the bar. McKinney explained that he was the manager of the licensed premises. In checking the business records of the licensed premises, a lease agreement was discovered which was signed between McKinney and Richard M. Knowles as an officer with the Zig Zag Pub, Inc. This lease agreement was a two year agreement with an option for McKinney to become a full partner in the corporation known as Zig Zag Pub, Inc. The agreement also authorized Bill McKinney to take full control to operate the business under the present licenses, one of those licenses being the license being held with the State of Florida, Division of Alcoholic Beverages and Tobacco. Petitioner's Exhibit number 3, admitted into evidence is the business contract spoken of. Agent Bates also discovered a number of checks written on an account of Bill McKinney which pertained to expenses of the Zig Zag Pub, Inc. Some of these checks are found in Petitioner's Composite Exhibits number 4 & number 5. Petitioner's Exhibit number 6 is a ledger showing expenditures of the business and reflects entries which correspond to the checks found in Petitioner's Composite Exhibit number 4. Petitioner's Exhibit number 7, admitted into evidence, is a composite exhibit containing invoices that are reflected in the ledger and shows that the invoices were made out to Bill's Place, and paid by the Zig Zag Pub or Bill McKinney. Petitioner's Exhibit number 8, admitted into evidence, is a receipt for a water bill charged to the licensed premises and paid by Bill McKinney. In following up the explanation of the sign found on the outside of the licensed premises, showing the name to be "Bill's Place," an invoice was located in the records. This invoice is Petitioner's Exhibit number 9, admitted into evidence, and shows that the sign had been delivered August 21, 1976. Another exhibit showing the connection of Bill Kinney to the licensed premises is a health inspection form made in the name of "Bill's Place" for the licensed premises and acknowledged by Bill McKinney. This is reflected in Petitioner's Exhibit number 10, admitted into evidence. Finally, there is a letter from the law firm of Bergstresser and DuVal, which indicates a request for payment of the November, 1976 rent due from the licensed premises under terms of a lease entered into by the principles of Zig Zag Bar, Inc. This letter is addressed to Bill McKinney, and is Petitioner's Exhibit number 11, admitted into evidence. While in the licensed premises on November 12, 1976, Agent Bates discussed McKinney's position with the Zig Zag Bar, Inc. McKinney indicated that he had been the manager since June, 1976. In an effort to determine McKinney's position in the corporation of Zig Zag Bar, Inc., Bates inquired of the Secretary of State, State of Florida. A teletype message was forward to Agent Bates indicating that the corporation had been cancelled for nonpayment of corporate fees. However, this message indicated that the last named officers were shown as Phyllis Charlene Henry, President, Sigride Kinele, Vice President and Richard M. Knowles as Secretary-Treasurer. This is reflected in Petitioner's Exhibit number 13, admitted into evidence. On November 19, 1976, the corporation was reinstated upon the payment of its fees. At the time the corporation was reinstated it listed Phyllis C. Henry, President, Kathlene McKinney as Vice-President and Richard M. Knowles as Secretary-Teasurer. Kathlene McKinney is the wife of Bill McKinney. Petitioner's Exhibit number 14, admitted into evidence are the documents showing the reinstatement of corporation and indicates the named officers. The Petitioner had not been made aware of the change of officers, nor received a certified copy of the stockholders' meeting held by the Zig Zag Bar, Inc., which changed the corporate officers. After discovering the change in the corporate officers, Agent Bates met with Richard Knowles and Knowles stated that Sigride Kienle Sowell had been removed as manager and McKinney had been brought in to salvage the Zig Zag Bar, Inc., from its financial difficulties in the licensed premises. Knowles was instructed that he could take action to rectify the problem that he was having and gain compliance with the laws and rules of the State of Florida, Division of Alcoholic Beverages and Tobacco. At the date of hearing, Bill McKinney was still acting as the operator of the licensed premises, and the Zig Zag Bar, Inc., had not filed a certified copy of the minutes of the stockholders' meeting changing the corporate officers, to those reflected in the November 19, 1976 reinstatement of the corporation with the Secretary of State of Florida. Furthermore, the name displayed on the sign in front of the licensed premises was "Bill's Place," and not Zig Zag Bar. After concluding his investigation, Agent Bates related his findings to his superiors and this led to the filing of the notice to show cause which is the subject of this hearing. The notice to show cause contains three counts. The first of those counts alleges that on October 28, 1976, it was shown that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub had failed to notify in writing, the State of Florida, Division of Alcoholic Beverages and Tobacco of its change of name in 30 days in advance of such name change, contrary to s. 561.33, F.S. Specifically, s. 561.33(2) , F.S. states: "no licensee may change the name of his place of business without first giving the Division 30 days' notice in writing of such change." In fact, the name was effectively changed from Zig Zag Pub to "Bill's Place" as discovered on October 28, 1976 and the Petitioner had not been notified 30 days in advance of such change. The Petitioner still has not been notified of such change. The second count of the notice to show cayuse alleges that on or about November 4, 1976 it was discovered that Zig Zag Bar, Inc. d/b/a Zig Zag Pub failed to submit a certified copy of the minutes of the stockholders' meeting changing corporate officers, to the State of Florida, Division of Alcoholic Beverages and Tobacco in violation of Rule 7A-2.07, F.A.C. The pertinent provision of the Rule, is Rule 7A-2.07(2), F.A.C., which states the following: "If any corporation holding a beverage license shall change corporate officers, such corporation shall within 10 days of such change submit a certified copy of the minutes of the stockholders' meeting at which the change in officers was effected to the district office of the district of the Division of Beverage wherein the license held by such corporation is located." The Respondent had changed the Vice-President in its corporation from Sigride Kienle Sowell to Kathlene McKinney, sometime prior to November 19, 1976, as evidenced by their filing with the Secretary of State of Florida. After making this change they failed to submit a certified copy of the minutes of the stockholders' meeting changing the corporate officer to the State of Florida, Division of Alcoholic Beverages and Tobacco within the allotted 10 day requirement. This change still has not been submitted. The third count in the notice to show cause was an allegation that the investigation on November 12, 1976, revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, entered into an agreement with Billy Gene McKinney which agreement relinquished all or part of the management and control of the licensed premises and alleged that this was contrary to Rule 7A-3.17, F.A.C. Rule 7A-3.17, F.A.C. contains this language: "All business conducted on the licensed premises under the beverage law shall be managed and controlled at all times by the licensee managed by or his authorized employee or employees. The term "employee," as used herein, shall mean a person who received a salary or wages for services performed, for and in behalf of a licensee, under the exclusive control and direction of the latter. It does not include a lessee, and independent contractor or any person employed by collateral agreement to independently manage and control the said business on the licensed premises. Indicia for determining whether a purported managerial contract conforms to this rule are as follows: The licensee must retain control of the operation of the business. Salary or wages must be paid by the licensee to the manager or employee for conduct of the business under the ultimate direction of the former. Social Security and workmen's compensation coverage must be paid and accounted for by the licensee. The licensee must be responsible for all debts of the business and legally entitled to all incomes therefrom. All alcoholic beverages for the business must be purchased in the licensee's behalf and under the license covering the premises. The licensed premises must be operated for all purposes in the name of the licensee or his legal trade name as distinguished from the name or names of any other person or persons. The licensee must be responsible for all conduct of the business and the license involved must be subject to suspension and revocation for any illegal acts committed on the premises or under the beverage law. Complete ultimate authority for the hiring and dismissal of all employees on the premises must rest with the licensee. The licensee must be primarily responsible for the rent, utilities and insurance covering the premises, and all other incidental expenses occasioned in the operation of the business. The licensee must remain at all times responsible for the maintenance and proper operation of equipment on the premises. The contract must contemplate the formation of the relationship of principal and agent between the licensee and the employee within the limits defined and implied by the contract. A contract wherein the so-called employee or manager pays a fixed sum to the licensee whether from net profits or not would not create the employer/employee relationship as contemplated by the rule. Any agreement woven in such language so as to clothe or disguise the true character of a contract either as a lease or a managerial contract will be shorn in order to effect the intent and purpose of the law and rule in this regard. The Pole Star which will guide the Division in determining whether or not a purported agreement is a bona fide managerial contract as distinguished from a lease will depend upon who has ultimate overall control and direction of the licensed premises under the terms of the agreement." In reflecting on the requirements contained in the Rule and comparing it to the facts shown in this case, it is clear that the Respondent has failed to comply with Rule 7A-3.17, F.A.C.
Recommendation It is recommended that the Director of the Division of Alcoholic Beverages and Tobacco suspend license number 23-2702, for a period of 20 days, but that such suspension be withheld for 15 days from the date of the recommended order to: (1) allow Bill McKinney to try to transfer the license number 23-2702 into his name and control; or allow the Respondent to make him an officer, stockholder, or employee entitled to operate the licensed premises; or allow the Respondent to remove him as the manager and operator of the licensed premises; allow application for change of name from Zig Zag Pub to "Bill's Place" or remove a sign indicating that the licensed premises is called "Bill's Place" and to allow the Zig Zag Bar, Inc., to file a certified copy of the corporate minutes of the stockholders' meeting which changed its corporate officers to the present named corporate officers. After the 15 days if the items (1) through (3) haven't been complied with the suspension shall take effect. This recommendation does not consider the acceptability of Bill McKinney as a transferee of the license held with the Division of Alcoholic Beverages and Tobacco or the propriety of the name change; nor does it address the question of possible future violations. DONE AND ENTERED this 29th day of August, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Denise LaRosa, Esquire 725 South Bronough Street Tallahassee, Florida 32304 Richard M. Knowles Secretary- Treasurer Zig Zag Pub 800 Alibaba Avenue Opa-Locka, Florida
The Issue Whether, under the facts, Respondent did or did not sell a controlled substance or possess a controlled substance pursuant to a prescription.
Findings Of Fact The Respondent is a licensed or registered pharmacist holding a license issued by the Florida State Board of Pharmacy. Detective Lawrence Troha of the Volusia County Narcotics Task Force was advised by Jack Bullock, who Troha had arrested on August 25, 1977, that James W. Swan was supplying him with drugs illegally. Bullock arranged a drug purchase from Swan to take place in Room 618 of the Holiday Inn of Daytona Beach on August 26, 1977. On August 26, 1977, Detective Troha's partner, Detective William Bergquist, was in Room 619 with a receiver/recorder to transcribe the events in Room 618 as broadcast a small transmitter worn by Detective Troha. The original magnetic tape recording of this meeting was identified by Detectives Troha and Bergquist and was played at the hearing being transcribed into the record. The tape recording was inaudible in some instances, but gave a good overall representation of the events which occurred on the evening of August 26, 1977, in Room 618 of the Holiday Inn in Daytona Beach. The events as recorded on the tape recording were consistent with Detective Troha's testimony concerning the events. James Swan arrived at Room 618 and was introduced to Troha by Bullock. Troha and Swan then discussed the drug purchase and negotiated a price for the drugs. Swan also indicated to Troha that he could supply Troha in the future with 100 to 150 capsules of Dilaudid (hydromorphone) every ten (10) days. A price of $2,000 for 90 4 mg Dilaudid capsules was negotiated. Troha received the drug from Swan and began to count out the money for Swan. This was the signal for the other police officers to enter the room and arrest Swan which they did. At that time, Swan was searched for concealed weapons and another envelope was discovered inside his sock on his leg. Detectives Troha and Bergquist identified one envelope (Q1, Exhibit 1) and its contents as the drug Troha had purchased from Swan. They also identified a second envelope (Q2, Exhibit 1) and its contents as the drugs discovered on Swan when he was searched incident to his arrest. These drugs and envelopes (Exhibits 1 and 2) together with the evidence containers in which they were placed by Detectives Troha and Bergquist, were identified by Terry Hall, a chemist with a PhD in chemistry who was employed in August of 1977 for the Sanford Crime Lab. Hall also identified the drugs contained in the envelopes which he had tested. His testing revealed that the drugs which Swan had sold or attempted to sell to Troha was hydromorphone or Dilaudid. The drug discovered on Swan was also tested by Hall and was determined to be phenmetrazine. Troha denied that the purchase was made pursuant to a prescription. It was clear from the magnetic tape of the events occurring in Room 618 as well as Troha's testimony that the transaction was an illegal sale of the drug Dilaudid and was not a sale pursuant to an authorized prescription.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Pharmacy revoke the license of James Swan as a registered pharmacist; and further, that this revocation be reported to any other state in which Swan may be licensed. DONE and ORDERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Arthur G. Leonhardt, Jr., Esquire 39 West Pine Street Orlando, Florida 32801 Michael Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Relinquishing Jurisdiction and Closing File by Thomas P. Crapps, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s letter of withdrawal of intent to establish the new line-make, a copy of which is attached and incorporated by reference Filed March 21, 2011 11:35 AM Division of Administrative Hearings in this order. The Department hereby adopts the Order Relinquishing Jurisdiction and Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to El Sol Trading, Inc. and Eco Green Machine to sell motorcycles of the line-make Taizhou Zhongneng Motorcycle Co., Ltd. (ZHNG) at 7000 Park Boulevard, Suite A, Pinellas Park (Pinellas County), Florida 33781. DONE AND ORDERED this Lo_ day of March, 2011, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Interim Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this day of March, 2011. abies Viowteh rsa NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL/vlg Copies furnished: Michelle R. Stanley Tropical Scooters LLC 11610 Seminole Boulevard Largo, Florida 33778 Ronald Larkin Larkin Motorworks LLC 3029 Dr. Martin Luther King, Jr. Street North Pinellas Park, Florida 33704 Gloria Ma El Sol Trading, Inc. 19877 Quiroz Court City of Industry, California 91789 Lindsey Park Eco Green Machine LLC d/b/a Eco Green Machine 7000 Park Boulevard, Suite A Pinellas Park, Florida 33781 Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
