The Issue The issue presented is whether the bid of Intervenor Velda Farms, Inc., is responsive to and complies with Respondent's Invitation to Bid No. SB 97C-85R.
Findings Of Fact On August 15, 1996, Respondent The School District of Palm Beach County, Florida (hereinafter "School District") issued an Invitation to Bid entitled "Term Contract for Uncooked Pizza Products," soliciting vendors for the 1996-97 school year. Both Petitioner Jukebox Express Drive-In Restaurants of America, Inc. (hereinafter "Jukebox Express"), and Intervenor Velda Farms, Inc. (hereinafter "Velda Farms"), timely submitted bids. The School District opened the bids on September 11, 1996, and determined that Jukebox Express and Velda Farms, as well as five other vendors, had submitted responsive bids. The School District prepared a list of approved vendors for that contract and included Jukebox Express and Velda Farms and the other responsive vendors on that list. The cafeteria manager for each school in the School District can select any vendor from that approved list to supply pizza products to that school. Jukebox Express timely filed its protest to the School District's determination that Velda Farms should be included on the list of approved vendors for pizza products, alleging that the bid of Velda Farms was not responsive and that Velda Farms is not a responsible bidder as to the subject bid. The School District is purchasing pizza products "off-bid" from Velda Farms during the pendency of this proceeding. Velda Farms does not manufacture or prepare the pizza products it currently supplies and would supply pursuant to the School District's Invitation to Bid. It is the distributor. The pizza is manufactured by Mimmo's Gourmet Pizza, a business currently located in Pompano Beach, Florida. During the 1995-96 school year Mimmo's supplied pizza to the School District through Jukebox Express. That pizza was manufactured by Mimmo's in its Fort Lauderdale location. Jukebox Express stopped supplying Mimmo's pizza to the School District in March 1996 due to deficiencies in the quality of the product. On May 7, 1996, Mimmo's Fort Lauderdale facility was inspected by the Florida Department of Agriculture and Consumer Services. Mimmo's received an overall rating of poor, with several critical sanitation items cited for correction within 48 hours. When the Department returned to that Fort Lauderdale facility on May 28, it discovered that Mimmo's was no longer doing business out of that facility. Instead, Mimmo's had begun doing business out of its Pompano Beach facility. It is from that facility that Mimmo's began supplying pizza products to the School District through Velda Farms in June 1996 and continuing through the time of the final hearing in this cause. No evidence was offered as to when Mimmo's obtained a permit to commence construction of its Pompano Beach facility. The records of the City of Pompano Beach reveal that on April 10, 1996, Mimmo's received approval for temporary electrical service for 30 days to test equipment. That approval did not permit operating a business at the site. That approval for temporary electrical service was never extended or renewed. Mimmo's August 6, 1996, request for a temporary certificate of occupancy for its Pompano Beach facility was denied. On September 12, 1996, Mimmo's Pompano Beach facility was "red-tagged" for failure to have a certificate of occupancy. On the following day Mimmo's applied for and received a temporary certificate of occupancy. Mimmo's did not obtain a final certificate of occupancy from the City until November 7, 1996. On September 19, 1996, the City of Pompano Beach received Mimmo's application for an occupational license which represents that Mimmo's opened for business in September 1996. The City issued an occupational license to Mimmo's that same day. Special Condition H.3. of the subject Invitation to Bid provides as follows: Vendors must have a system in place that provides for quality control and the delivery of product at consistent and specified quality levels. Vendors must have in place a system for safety and sanitation inspections assuring the delivery of product that is free from contamination and product degradation. At the time it submitted its bid and through the time of the final hearing in this cause, Velda Farms had no system in place for quality control of Mimmo's product and had no system in place for safety and sanitation inspections of Mimmo's product. Velda Farms performed no investigation of Mimmo's product or manufacturing facility before it commenced supplying Mimmo's product to the School District. Velda Farms relied solely on the fact that Mimmo's pizza was listed as an approved product in the School District's Invitation to Bid. The School District's employee who prepared the Invitation to Bid included Mimmo's pizza in the approved product list pursuant to oral information given by the director of food services that Mimmo's was tested and accepted as an approved product by the School District in May 1996 for the 1996-97 school year. That same employee is not aware of any written test report to that effect. When Velda Farms submitted its bid to the School District, it attached a letter on Velda Farms stationery which read as follows: As per our conversation, Velda Farms [sic] ability to fulfill the obligations of the Pizza Bid No. SB 97C-85R is contingent upon the following: Mimmo's Pizza's ability to supply the required amounts at the agreed pricing. Mimmo's Pizza's ability to meet the nutritional specifications and requirement of the Palm Beach County School District. I appreciate your understanding in this matter. Should you have any questions, please contact me. The statements in that letter are directly contrary to the requirements contained in Special Condition H.3. of the Invitation to Bid. Indeed, the statements in that letter render the bid submitted by Velda Farms only a conditional offer to supply pizza products. Special Condition B of the Invitation to Bid provides that the contract will be awarded to the lowest and best responsive, responsible multiple bidders. Section 6.14 of the School District's Procurement Department Purchasing Procedures were adopted as School Board policy on November 21, 1995. Section 6.14(5) provides, in part, as follows: Responsible bidder or offeror is defined as a person/firm who has the capability, in all respects, to perform the contract requirements fully and the moral and business integrity and reliability to assure good faith performance. Responsive bidder or offeror is defined as a person/firm who has submitted a bid that conforms in all material respects to the invitation for bids or request for proposals. As to the subject bid, Velda Farms is neither a responsible bidder nor a responsive bidder. Its letter attachment to its bid form represents that Velda Farms does not have the capability to fully perform the contract and that Velda Farms will not assure good faith performance. Further, its bid does not conform in all material respects to the subject Invitation to Bid. Although the School District's Procurement Department Manager suggests that the deficiencies in Velda Farms' bid can be waived by the School Board, those deficiencies are not minor. They are material deficiencies in that they involve the quality of the food in the School District's schools and the price of Velda Farms' bid. No other bidder included a condition giving itself the right to cease performance of its agreement to supply pizza products to the School District. No other bidder was advised by the School District's Procurement Department employees that the bidders could condition their bids in such a fashion. At the time Velda Farms submitted its bid and at the time the bids were opened and the School District announced the award, Mimmo's was operating illegally from a building which had not been approved for occupancy and without benefit of an occupational license. Although Velda Farms may not have known that the pizza product it was supplying to the School District at the time of the bid submittals and bid opening was manufactured without the necessary government approvals, General Condition 19 provides as follows: Legal Requirements: Federal, State, county, and local laws, ordinances, rules, and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the bidder will in no way be a cause for relief from responsibility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Intervenor Velda Farms, Inc., is not a responsible or responsive bidder for Respondent The School District of Palm Beach County, Florida's term contract for uncooked pizza products, Bid No. SB 97C-85R, and deleting Intervenor Velda Farms, Inc., from the list of approved multiple bidders under that bid award. DONE AND ENTERED this 31st day of January, 1997, in Tallahassee, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1997. COPIES FURNISHED: Michael B. Small, Esquire Small and Small, P.A. 324 Royal Palm Way, Suite 231 Palm Beach, Florida 33480 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Jim E. Solomon, Esquire Jim E. Solomon and Associates, P.A. 1180 South Powerline Road Suite Nos. 207-209 Pompano Beach, Florida 33069 Dr. Joan Kowal Superintendent of Palm Beach County Schools 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
The Issue Whether Petitioner's protest, challenging Respondent's "identif[ication of] Associated Marine Institute[s], Inc. for potential award(s) [of] the contract" advertised in RFP No. K9018, should be sustained in whole or in part?
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Parties Respondent is a state agency which, pursuant to Section 20.316, Florida Statutes, is "responsible for planning, coordinating, and managing the delivery of all programs and services within the juvenile justice continuum." Petitioner and Intervenor are private providers of social services programs. The Existing Program Since March of last year, Petitioner, through a subsidiary, has operated a 15-bed, moderate risk, residential halfway house program for females in Miami-Dade County (known as the Cove) pursuant to a contract with Respondent. Respondent procured these services from Petitioner on an "emergency" basis without first attempting to obtain competitive sealed proposals. Respondent's Notification of the Anticipated Release of RFP No. K9018 In early January of 2000, Respondent sent to various social service providers, including Petitioner and Intervenor, written notification of Respondent's intention to solicit, through a soon-to-be issued Request for Proposals (identified as RFP No. K9018), proposals to enter into a contract with Respondent to operate a "Fifteen (15) Bed Level 6 Residential Female Halfway House Program in Miami-Dade County" (which contract would replace Petitioner's "emergency" contract with Respondent). The providers notified by Respondent were given a Notice of Availability form, which they were instructed to complete and return to Respondent if they were "interested in receiving a hard copy of this solicitation." On the Notice of Availability form, interested providers were asked to provide the following information: name, address, telephone number, vendor ID number, and contact person's name and title. Petitioner and Intervenor were among those who submitted to Respondent a completed Notice of Availability form indicating a desire to receive a "hard copy" of RFP No. K9018. Drafting of RFP No. K9018 Leonora Javier is employed by Respondent as a contract manager in Respondent's District 11. Ms. Javier was assigned the task of drafting RFP No. K9018 (RFP). She reviewed Respondent's Contract Manager's Manual, as well as previous requests for proposals that Respondent had issued, to determine what to include in the RFP. Ms. Javier prepared a first draft of the RFP, which she circulated for review. After considering the reviewers' comments, she completed a final draft. Issuance of the RFP Respondent issued the RFP on or about January 11, 2000. Petitioner and Intervenor were among those to whom Respondent mailed a "hard copy" of the RFP. Contents of the RFP Section A The first two pages of the RFP (Section A of the RFP) consisted of the standard "State of Florida Request for Proposal Contractual Services Acknowledgment" Form PUR 7033 (Rev. 6-1-98), which provided in pertinent part, as follows: SEALED PROPOSAL: . . . All proposals are subject to the conditions specified herein. Those which do not comply with these conditions are subject to rejection. . . . PROPOSAL OPENING: . . . A proposal may not be altered after opening of the price proposals. PRICE, TERMS AND PAYMENT: . . . (c) MISTAKES: Proposers are expected to examine the conditions, scope of work, proposal prices, extension, and all instructions pertaining to the services involved. Failure to do so will be at the proposer's risk. Total proposed prices based on best value negotiation will govern the award. . . . AWARD: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions, unless their proposal has been evaluated as being responsive. All awards made as a result of this proposal shall conform to applicable Florida Statutes. INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the proposal opening. Inquiries must reference the date of proposal opening and proposal number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any person who is adversely affected by the agency's decision or intended decision concerning a procurement solicitation or contract award and who wants to protest such decision or intended decision shall file a protest in compliance with Chapter 28-110, Florida Administrative Code and State Purchasing Rule 60A-1.006(6), F.A.C. Failure to file a protest within the time prescribed in Section 120.57(3), F.S., shall constitute a waiver of proceedings under Chapter 120, F.S. . . . 11. LEGAL REQUIREMENTS: Applicable provision of the Federal, State, county and local laws, and all ordinances, rules and regulations shall govern development, submittal and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes which may arise between person(s) submitting a proposal response hereto and the State of Florida, by and through its officers, employees and authorized representatives, or any other person, natural or otherwise,; and lack of knowledge by any bidder shall not constitute a cognizable defense against the legal effect thereof. Section B Section B.1. of the RFP described, in general terms, the services sought by Respondent. It provided as follows: The Florida DEPARTMENT of Juvenile Justice (DJJ) requires a Fifteen (15) bed Moderate- Risk Level Six (6) Residential Female Halfway House Program to be located in DJJ District 11, Miami-Dade County. This is an existing program. Section B.3. of the RFP indicated that the contract for the provision of these "services" would have an "effective date" of "July 1, 2000 or the date [the contract was] signed by both parties" and an expiration date of June 30, 2003. Section C. Sections C.1. and C.1.1. contained a detailed description of the work to be performed under the contract. They provided, in pertinent part, as follows: Work Statement The PROVIDER shall design, develop, implement, and operate a Level 6 Residential Female Halfway House residential program with a daily capacity of 15 female youths who are committed to the DEPARTMENT after having been assessed and classified as moderate risk to public safety. The PROVIDER shall provide a staff secured residential commitment program utilizing the moderate risk residential program model, to serve female youth between the ages of 14 to 19 years of age that provides 24 hours per day, 7 days a week secure custody, care, treatment and supervision. All contractual requirements to provide service, support, and related performance shall be available and provided when the female youth enters the program. The anticipated length of stay for each youth is 6 to 9 months. Manner of Service The PROVIDER shall provide program components consistent with program requirements, and Department policies and manuals, which at a minimum, include the following: Case Management Services . . . The PROVIDER shall provide services to the female youth, while she is in the PROVIDER'S care, which shall complement and support the plan for and re-integration into the community or independent living. Care and Custody The PROVIDER shall provide 24-hour daily supervision, custody and care of female youths placed in the program, with required supervision, custody and care. The PROVIDER shall effectively address security issues, creating an environment in which staff and female youth can focus on treatment and behavior change. The PROVIDER shall design and implement program systems, policies and practices that complement physical plant security. The PROVIDER shall submit a staffing proposal including all staff assigned to this program, included in the proposal. The PROVIDER'S security shall include, at a minimum: Levels of staff and staff supervision reflected in staff to female youth ratios; /2 Daily operating security procedures that monitor, control, and document movement of female youth; Scheduled facility resident counts documented daily; Random contraband inspections and/or under circumstances of suspicion; Emergency procedures (written) for female youth disturbances/escapes; Scheduled facility inspections on security features (doors, locks, gates, lights, etc.) Development of Social Skill Enhancement The PROVIDER shall provide female clients with recognized gender specific skills training programs including anger replacement training, social problem-solving and interpersonal communication skills training, coping skills training and self-control training. In its proposal responding to this request for proposal (RFP), the PROVIDER shall specify the manuals and curriculum for its proposed program application. Diagnostic Evaluation Services . . . . Transient Process and Outcome Evaluation . . . . Treatment Modalities The PROVIDER shall provide programs employing well-defined treatment models or theories that are applicable to female offenders. The PROVIDER shall identify and explain the treatment success rate and likelihood of client reoffending. The PROVIDER shall focus on eliminating behaviors that have contributed to the female youth's delinquency, and promote behavior and competencies that encourage pro-social change and self-growth law-abiding behavior. Transportation Services . . . . Health Services . . . . Mental Health Services and Substance Abuse Services . . . . Counseling Services The PROVIDER shall provide counseling techniques intended to resolve individual and family issues having negative impact on female youths. The provider shall provide a comprehensive treatment and counseling program. Female youths shall be provided to a variety of positive and challenging experiences that shall expand awareness and develop a sense of responsibility toward society. Educational Services . . . Pre-Vocational and Vocational Services . . . . Job Training and Placement . . . . Self-sufficiency Planning The PROVIDER shall train female youth to be self-sufficient by completion of the program. The training shall include: financial/money management; employment; education/vocation/ career; medical/mental health; independent living skills; parenting skills, as applicable; and social skills. . . . Gang Identification, Intervention Education and Counseling . . . . Recreational and Leisure Time Activities . . . . Community Involvement Opportunities The PROVIDER shall coordinate and encourage female youth to participate in community projects and activities. These projects and activities include, but shall not be limited to, supervised community work service hours, participating in group community service projects, activity with family members or other adults approved by the program and the DEPARTMENT and participation in school functions. The PROVIDER shall provide programming for female youth to learn teamwork, and hands on supervision of environmental projects to maintain, restore and improve the ecology of the Everglades. The PROVIDER shall work with Federal, State and local government agencies to do a minimum of 240 work hours per month of Environmental Restoration Project such as public clean up, trail building, landscaping, repairing park structures, mosquito abatement, control burns and exhibition development. The PROVIDER shall effect all necessary inspections, investigations and safety precautions necessary to protect all persons entering land requiring restoration. The PROVIDER shall comply with all Occupational Safety and Health Administration (OSHA) and all federal, state and local health standards. Lease is incorporated by reference and is available through the contract manager. Aftercare/Follow-up . . . . Section C.2. of the RFP defined certain "service"- related terms used in the RFP. Among the definitions found in this portion of the RFP were the following: Moderate-Risk Restrictiveness Level- This is one of the five restrictiveness levels authorized in statute. Youth assessed and classified for placement in programs in this restrictiveness level represent a moderate risk to public safety. Programs are designed for children who require close supervision but do not need placement in facilities that are physically secure. Programs in the moderate-risk residential restrictiveness level provide 24-hour awake supervision, custody, care and treatment. Upon specific appropriation, a facility at this restrictiveness level may have a security fence around the perimeter of the grounds of the facility and may be hardware-secure or staff-secure. . . . Quality Assurance (QA)- A statutorily mandated process utilized by the DEPARTMENT for the objective assessment of a program's operation, management, governance and service delivery based on established standards. . . Treatment Model- The formalized intervention provided by a program or facility and which is based on a sound theoretical approach or treatment modality which is applicable to juvenile youths. Examples of formalized intervention or treatment models provided in juvenile justice settings include psycho- dynamic approaches such as individual, group and family therapy; behavioral approaches such as behavioral modification, guided-group interaction and peer culture and milieu therapy; cognitive-behavioral and psycho- educational approaches such as social skills training, problem-solving training and anger replacement training; life skills approaches which include drug/alcohol, academic, vocational and outdoor experiences interventions. . . . Section D. Section D.1. of the RFP addressed the subject of "quality assurance requirements" and provided as follows: The PROVIDER acknowledges that in accordance with Section 985.412, Florida Statutes, the DEPARTMENT shall evaluate the PROVIDER's Program to determine if the PROVIDER is meeting satisfactory levels of performance for the quality assurance standards. The PROVIDER shall meet all satisfactory levels of performance for the quality assurance standards and understands that if a PROVIDER fails to meet the established minimum threshold, such failure shall cause the DEPARTMENT to cancel the PROVIDER'S contract unless the PROVIDER achieves compliance with minimum thresholds within 6 months or unless there are documented extenuating circumstances. In addition, the DEPARTMENT may not contract with the same PROVIDER for the canceled services for a period of 12 months. The PROVIDER shall provide services in accordance with quality assurance standard for Juvenile Justice Residential Programs, December 1, 1998. The PROVIDER shall participate in a minimum of one on-site quality assurance review of a similar type program for each program operated by the PROVIDER in another district during the contract year at the PROVIDER'S expense. Section D.2. of the RFP discussed Respondent's "monitoring" of performance under the contract. Section E. Section E. of the RFP explained how performance would be measured under the contract. Section F. Section F. of the RFP contained information regarding "contract administration." It indicated, among other things that the contract to be awarded by Respondent would be a "fixed unit contract." Section G. Section G. of the RFP contained "special contract requirements." It provided, in pertinent part, as follows: Method of Payment Available Beds/Single Rate The PROVIDER shall provide 15 beds, which shall be available at all times. The DEPARTMENT will pay the PROVIDER $ available bed per day. per The PROVIDER shall make the contracted number of beds continuously available throughout the term of the contract. . . . The invoice shall be submitted directly to the contract manager within ten (10) working days following the end of the month for which services were rendered. . . . G.9. DEPARTMENT Furnished Property The DEPARTMENT shall deliver to the PROVIDER, at the same time and location stated in the contract, the DEPARTMENT Property for facilities use, described below. A facility is defined as a building or series of buildings or other structure(s) including infrastructure for use in connection with this contract. The facility is located at 11000 SW 220th Street, Miami Fl 33170, and is available July 1, 2000, 12:00 a.m. /3 . G.20.1 Residential PROVIDER of BHOS Services The Behavioral Health Overlay Services (BHOS) PROVIDER, as defined by the Agency for Health Care Administration, shall provide all necessary and appropriate treatment services, including mental health and substance abuse, to youth in need of such services. . . . G. 26. Certified Minority Business Enterprise (CMBE) Self Contracting Plan The PROVIDER shall make a good faith effort to provide certified minority business enterprise (CMBEs) opportunity to participate in contract performance. A certified minority business enterprise is defined as a firm certified by the Office of Minority Business Advocacy and Assistance Office within the Department of Labor and Employment Security to be a minority business enterprise. G.27. Minority Business Enterprise Utilization Reporting Procedures The PROVIDER shall submit to the contract manager, along with the monthly invoice, a listing of all payments made for supplies and services to Certified Minority Business Enterprises (CMBE[s]) during the invoice period. The listing shall specify the payments by CMBE code to each CMBE and will be in accordance with the format in Exhibit 4. This clause is not applicable to Certified Minority Business Enterprises. . . Section H. Section H. of the RFP was entitled "RFP Clauses." Among the "clauses" in this section was one which incorporated by reference in the RFP "all applicable state and federal laws, rules and regulations." Section J. Section J. of the RFP contained "representations, certifications, and other statements to offerors," including the following: J.4. Certified and Qualified Minority The Offeror shall include a copy of its current certification as a certified minority business enterprise eligible to do business in the State of Florida, as set forth in Section 287.09451, Florida Statutes, issued by the State of Florida Minority Business Advocacy and Assistance Office. Additionally, the Offeror shall include a copy of the current CMBE certificate for all proposed CMBE subcontractors in order for the proposal to be considered for additional points under Section L.2.5. of the Award Criteria. . . . Section K. Section K. of the RFP set forth the following "instructions, conditions, and notices to offerors," among others: K.1 Form PUR 7033 This is the only fatal criteria item since this form becomes the signature page for the contract. Acceptance of the terms and conditions of this solicitation and any resulting contract is accomplished by signing only the front side of the Request for [P]roposal Acknowledgment Form, PUR 7033. The State of Florida, Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, shall be signed and returned with the proposal by February 10, 2000 at 3:00 p.m. EST to: Leonora Javier, Contract Manager Address 3510 Biscayne Blvd. Suite 312 Miami, Florida 33137 Phone (305) 571-5705 Fax (305) 571-5745 . . . K.4.1. Past Performance Submit documentation to support the following: . . . 6. CMBE prior utilization. {ADD} within the past five years in the State of Florida. K.5. Cost Pricing Proposal The Offeror shall submit a price proposal to support proposal costs. . . . How to Submit a Proposal The Offeror shall deliver the proposal or consecutively numbered volumes by hand, a document delivery service, or certified mail to the contact person. The proposal or consecutively numbered volumes shall be submitted in a sealed envelope . . . . Number of Pages and Copies Required The Offeror's response to the request for proposal shall be submitted in two volumes: 1) Volume I shall consist of the offer for technical, management and organizational capability to deliver the services; and 2) Volume II shall consist of the price/cost offer that describes in detail the cost and pricing data associated with delivering the services. The Offeror's response to the proposal (volumes) shall be limited to 50, 8 1/2" X 11" pages (numbered consecutively), excluding graphic information, and the text pitch shall be no smaller than 10. For each Offeror's response to the proposal (volume), each additional page exceeding the required page limit will be disposed of and will not be considered as part of the proposal response. One original and 9 copies of the proposal (volumes) are required. At least one copy of the proposal of Volume I submitted to the Department shall contain an original signature (on Form PUR 7033) by an agent of the Offeror or an officer of the firm, who is authorized to bind the Offeror or firm to the proposal as submitted. . . . K.7.4. Acceptance of Proposals Changes, modifications or additions to the proposals submitted shall not be accepted by the DEPARTMENT after the deadline for submitting a proposal has passed. Proposals not received at either the specified place, or by the specified date and time, or both, shall be rejected and returned unopened to the Offeror. The DEPARTMENT reserves the right to reject any or all proposals or waive minor irregularities when to do so would be in the best interest of the State of Florida. Failure to deliver services upon award will result in cancellation of the contract and legal proceedings based on the default will be initiated. . . . Pre-Proposal Conference Not applicable to this RFP. Inquiries Copies of responses to written inquiries for clarification and/or amendments to the solicitation (RFP), will be sent by Certified Mail, Return Receipt Requested, to those persons or firms who receive a solicitation, and to other interested persons, who request (in writing) information concerning this solicitation (RFP). Inquiries need to be submitted to the contact person identified in section F.4. of this proposal. The Offeror is encouraged to submit FedEx, Overnite, Airborne or similar such billing number to receive solicitations in a timely fashion. K.7.10. Certified Minority Business Enterprise (CMBE) Subcontracting Plan (Note: A CMBE Offeror in NOT entitled to additional points for utilization of a CMBE subcontractor(s) under Section L.2.5 of the Award Criteria) The Offeror shall include a detailed subcontracting plan in every proposal in excess of $75,000. Each subcontracting plan shall include a percentage of the total proposed contract dollars the Offeror anticipates expending under subcontract to CMBEs as well as the type of services/commodities that will be subcontracted. The subcontracting plan shall be incorporated into the contract. Subcontracting plans shall be evaluated for additional points for non-CMBE Providers subcontracting with CMBE subcontractors. A copy of all CMBE subcontractor's' current CMBE certifications must be submitted with the proposal. Prior utilization of CMBE subcontracting shall be an evaluation factor and shall be used as a measure of Offeror's past performance under Section L.2.4 of the Award Criteria. The total proposed dollar amount of the Contract: $ The total proposed dollar amount of the subcontracted services with CMBE subcontractors is: $ Percentage that will be subcontracted to CMBE subcontractors is: $ The following rating scale shall be used in the evaluation of subcontracting plans for non-CMBE Providers subcontracting with CMBE subcontractors: PROPOSED CMBE RATING FACTOR SUBCONTRACTING 40% or more (of total contract dollar amount) 50 points 30% to 39.99% 40 points 20% to 29.00[sic]% 30 points 10% to 19.99% 20 points Greater than 0% to 9.99% 10 points 0% 0 points Section L. Section L. of the RFP identified the "proposal award criteria." It provided as follows: Chapter 287, F.S., requires that each RFP include the criteria to be used in determining acceptability of the proposal. Each proposal will be evaluated and subsequent award shall be made on the basis of maximum score, best value, and in the best interest of the State utilizing SSET Technical Proposal Evaluation criteria. L.1. Fatal Item A proposal with a "no" response to the following question shall be rejected without further consideration. Did the Offeror submit an original, signed State of Florida, Request for Proposal, Contractual Services Acknowledgement Form (PUR 7033)? Yes No ** If above item is marked "NO" the evaluation process will STOP! L. 2. Award Up to the following Criteria number of Evaluated Points Program Services 250 points Soundness of approach 125 Compliance with Requirements 125 Organizational Capability 100 points Soundness of approach 50 Compliance with Requirements 50 Management approach 100 points Soundness of approach 50 Compliance with Requirements 50 Past Performance 50 points Historical Implementation 10 Educational Achievements 10 Recidivism Rates 10 QA evaluation 10 Community Involvement 5 Prior CMBE Subcontracting 5 Sub Total Score points Maximum Possible Score 500 L.2.5 Additional Points Available Is the Offeror a certified and qualified Minority Business Enterprise registered to do business in the State of Florida? (Current certificate shall be included in the proposal) Included Not Included SCORE (50 points) OR Will the Offeror utilize a certified and qualified Minority Business Enterprise(s) registered to do business in the State of Florida as a Subcontractor? (Certificate(s) shall be included in the proposal) Included Not Included SCORE (up to 50 points) Note: A CMBE Offeror is NOT entitled to additional points for utilization of a CMBE subcontractor under L.2.5. of the Award Criteria. Additional points TOTAL SCORE points Respondent's Responses to Written Inquiries Respondent received "written inquiries for clarification and/or amendments to the solicitation (RFP)," as described in Section K.7.7. of the RFP, from Intervenor, Ramsay Youth Services, Inc., First Corrections Corporation and Alternative Behavioral Services, /4 but not from Petitioner. Ms. Javier drafted (for her supervisor, Maria Cadavid, District 11's contract administrator) written responses to these inquiries. She prepared three separate documents: one containing the inquiries made by Intervenor and the responses thereto (Response to Intervenor), another containing the inquiries made by Ramsay Youth Services, Inc. and the responses thereto (Response to Ramsay), and a third containing the inquiries made by First Corrections Corporation and Alternative Behavioral Services and the responses thereto (Response to First Corrections). Two of these three documents, the Response to Intervenor and the Response to Ramsay, addressed the requirements of Section K.7.2. (dealing with "number of pages"). These two documents read, in pertinent part, as follows: Response to Intervenor Question 18: Define and provide examples of the phrase "graphic information" as listed in Section K.7.2. Response: All exhibits are considered "graphic information" as listed in Section K.7.2. Question 19: Does the Department agree to expand the page limit for each offeror's response to the proposal from 50 pages to 75 pages? Response: No. Please refer to previous response. Response to Ramsay Question 3: Regarding the page limitation, are the following items counted against the page limit? Civil Rights Compliance Checklist PUR 7033 Weekly Schedule Resumes Job Descriptions Staffing Patterns Corporate Documents Table of Contents Response: The following are considered graphic material and do not count against the page limit: Civil Rights Compliance Checklist No PUR 7033 No Weekly schedule No Budget Excel sheets Yes Resumes No Job Descriptions No Staffing Patterns No Corporate Documents No Table of Contents No Respondent opted to use facsimile transmission rather than "Certified Mail, Return Receipt Requested" (as it indicated, in Section K.7.7. of the RFP, it would) to expedite potential proposers' receipt of the written responses Ms. Javier had prepared. After obtaining the "fax" numbers of all those who had submitted completed Notice of Availability forms, Respondent, on or about January 24, 2000, made a good faith effort to send them, by facsimile transmission, copies of these responses. Petitioner, however, received a copy of only the Response to First Corrections. It received a copy of neither the Response to Intervenor, nor the Response to Ramsay. Submission of Proposals Three proposals were submitted in response to the RFP. The three proposers were Intervenor, Petitioner, and Non-Secure Detention Home, Inc. Intervenor's Submission Intervenor's submission consisted of two volumes (Intervenor's Complete Proposal). Volume I of Intervenor's Complete Proposal was a thorough, well organized, and thoughtful "offer for technical, management, & organizational capability" (Intervenor's Technical Proposal). Intervenor's Technical Proposal contained 50 consecutively numbered pages, plus a completed Form PUR 7033, a table of contents, and other "graphic information" (as that term was clarified in the Response to Intervenor and Response to Ramsay). Staffing In its Technical Proposal, on numbered page 9, Intervenor addressed the issue of staffing levels and staff supervision as follows: Care and Custody AMI shall provide 24-hour daily supervision, custody and care of female youths placed in the program, with required supervision, custody and care. . . . AMI shall submit a staffing proposal including all staff assigned to this program, included in the proposal. AMI's security shall include, at a minimum: 1. Levels of staff and staff supervision reflected in staff to female youth ratios. The staffing plan [c]an be found in Section K.4. as required by the RFP. SFAS [South Florida Achievement School, the name of the program proposed by Intervenor] provides 24-hour awake supervision and residential care to students, seven days a week, 365 days a year. To insure a safe and secure environment, [there will be] a 1:10 staff to student ratio during awake hours and 1:12 ratio during sleeping hours. All off site activities will follow a ratio of 1:5. Nighttime supervision is especially critical. The configuration of the student sleeping areas is designed to insure unobstructed supervision of each student. Night Counselors (during sleep time) make an initial check to insure that all students in the bedroom areas are accounted for. The name of any student wishing to use the restroom is entered in the log and again when returning. The restroom area is within line of sight supervision by the Night Supervisor. All students in bed must have their heads showing. Students are not allowed to pull blankets/sheets over their heads. The Night Supervisor makes a formal count of all those under his/her supervision every hour and records this in the log. Intervenor's "staffing plan" was described on numbered pages 47 and 48 of its Technical Proposal as follows: Staffing Plan The major strength of each AMI program is the program staff. The policy of offering opportunities for growth and cross training to current staff provides a ready pool of nearly 1,400 dedicated and trained professionals from which to draw. AMI agrees to maintain all services and requirements in compliance with the standards outlined in the State of Florida manuals that are referenced in the RFP. The programs will insure that all staff possess the proper credentials as outlined in the manuals. As indicated earlier, SFAS will fall under the direct supervision of Regional Director, Ralph Parker. It is important to note that the leadership and exceptional cultural diversity of AMI's staff has created a unique market advantage for us in the states we currently serve. These programs are led by a corporate team of professionals who are trained to understand the importance of residential programming and are willing to "do whatever it takes" to help turn around the lives of juveniles at SFAS. Our principle value is "KIDS FIRST," the diversity of our human resources is unmatched, our strategic plans are carried through to completion, our focus always points to our mission, and at the same time, we allocate our resources to analyzing data and obtaining reliable and measurable results from our programs. The school will be headed by a Program Director, who will also serve as the Licensed Mental Health Professional. To assist with counseling efforts, the Life Skills instructor will also have an MSW degree. Job descriptions for the following positions are available upon request and conform to the requirements of the State. Copies have not been included due to the page limitations set by the RFP. Staff to student ratios are 1:10 (wake hours) and 1:12 (sleeping hours). The table below provides the proposed staffing plan for SFAS: SFAS Staffing Plan Position Title Weekly Hours Program Director 40 Administrative Assistant 40 Education Director 40 ESE Instructor 40 Instructor/Counselor 40 Computer Instructor 40 Life Skills Instructor/ Case Manager (MSW) 40 Food Services Supervisor 40 P.E. Recreational Instructor 16 Environmental Instructor 16 P.E. Instructor 16 Environmental Instructor 16 Night Supervisor 40 Night Supervisor 40 Night Counselor 16 Night Counselor 16 It is not unreasonable to conclude, based upon a review of the foregoing portion of Intervenor's Technical Proposal, that Intervenor has proposed to provide adequate "[l]evels of staff and staff supervision reflected in staff to female youth ratios," as required by Section C.1.1. of the RFP. "Assistance Dog Training Program" On numbered pages 24 and 25 of its Technical Proposal, Intervenor described an "Assistance Dog Training Program," that it proposed to implement at South Florida Achievement School "in partnership with Canine Companions for independence, the largest and longest operating organization training assistance dogs for the disabled." Intervenor noted (in the second paragraph on numbered page 24) that it "has a fully operational Assistance Dog Training Program at the Space Coast Marine Institute . . . in Melbourne, Florida, . . . a Level 6 residential program for males funded by the Department of Juvenile Justice." It then went on to state the following regarding the benefits of an "Assistance Dog Training Program": The Assistance Dog Training Program has a proven track record of dramatic gains in self-confidence, academic progression and the lessening of negative behaviors in at-risk youngsters. Our experience to date has been remarkable. Listed below are the results of a similar assistance dog training program for at-risk youngsters after one year of operation: /5 Enrollees (Students Directly Involved in Training of Dogs) Attendance- Improved by 73.4% Number of referrals for Problem Behavior- Decreased by 89.2% Average GPA- Increased 32.1% Entire School (Dogs Participated in All School Activities) Suspension Rate- Decreased by 51.2% Calls Requiring the School's Resource Officer- Decreased by 26.5% Through contact with and the responsibility for the care and training of assistance dogs, the lives of the students will be enhanced and opportunities will open. On numbered page 25 of its Technical Proposal, Intervenor set forth an "Assistance Dog Training Implementation Plan," which read, in part, as follows: The students of SFAS will begin their Assistance Dog Training experience in the Puppy Raising Program under the supervision of one program staff member who will be trained by Canine Companions for Independence. The students participating in the Puppy Raising Program will be responsible for all of the young dog's care, socialization and the teaching of basic commands. At about one and a half years of age, the dogs are then returned to Canine Companions for Independence Training Center in Orlando, Florida for eight additional months of advanced training. . . . The trained dogs change lives, those of our participating students and the disabled recipients. . . . Statistical results indicate that the benefits to the SFAS students involved in this unique project may result in: An overall 10% increase in self-esteem- Recorded by a pre and post-test that was administered to participating students in other programs. A 50% decrease in absenteeism- This statistic was . . . noted when measured against these same students prior attendance. The Assistance Dog Training Program has an important place within the programs of AMI. Its addition is exciting, new and can make a tremendous difference in youngsters we serve. . . . Frederick D. Kremer, AMI, Director of Corporate Development, is currently responsible for the implementation of our first Assistance Dog Training Program at the Space Coast Marine Institute (SCMI). Mr. Kremer will oversee the SFAS Assistance Dog Training Program. He will insure that this program is successful and is a meaningful experience for the girls. Canine Companions for Independence, through their regional office in Orlando, will oversee the quality and progress of the program at the SFAS Program. The program staff and Mr. Kremer will remain in close contact with CCI. In addition to the increases in self-esteem, academic progression and many other positives of this component, AMI will offer a vocational out growth once this program is implemented. . . . It is Intervenor's intention (as its senior vice- president of corporate and support services, William Hoffman, testified at hearing), should it be awarded the contract advertised in RFP No. K9018, to limit participation in the "Assistance Dog Training Program" to only those SFAS residents for whom participation would be appropriate (those who are not uncomfortable being around dogs and do not have a history of animal abuse) and to have the one or two dogs these residents (in teams of 2 or 3) would care for and train remain at the facility only during the day (and not at night, when they would be housed in a volunteer's or staff member's house). Although Intervenor did not provide these details regarding the program (that were revealed by Mr. Hoffman during his testimony at hearing) in its Technical Proposal, neither did it make any statements in its Technical Proposal indicating that it intended to implement the program in a manner inconsistent with its present plans (as described by Mr. Hoffman). There has been no showing that Intervenor would be prohibited, by operation of local land use law, from implementing its proposed "Assistance Dog Training Program"; nor has it been established that the implementation of the program would not yield the benefits described on numbered pages 24 and 25 of Intervenor's Technical Proposal. CMBEs On numbered page 34 of its Technical Proposal, Intervenor stated that "[it] and its affiliates currently utilize Certified Minority Business Enterprises (CMBEs located throughout the state of Florida" and that "[s]ervices are contracted and provided in the following areas: Travel Agencies, Temporary Employment Agencies, Janitorial Services, Landscaping and Lawn Services, Contractors, Pest Control, Computer Sciences, Florist, Food and Catering, Auto Repairs and Towing." It then went on to list (on that same page and on the following page) "some of the Minority and Women CMBEs currently being used" and to give, where available, the amount (in "total dollars") of business done with these listed CMBEs ("World Express International," "Lawn Company Grass Experts," "A1 Kleaning Klinic," "George Harris Lawn Service," "Snelling Temporary Agency," "Office Temporary Team," "Quality Applique," "Tempwise," "First Rate Pest Control," "Laser Action Plus," and "Diane's Creations"). On numbered page 37 of its Technical Proposal, Intervenor advised that, "[s]ince [it] is a non-profit organization and does not fall into a realm of being owned by any specific group, individual or organization, [it is] not eligible for certification as a CMBE. Intervenor's "Certified Minority Business Enterprise (CMBE) Subcontracting Plan" was set forth on numbered page 50 of Intervenor's Technical Proposal. It provided as follows: Subcontracting plans shall be evaluated for additional points for non-CMBE providers subcontracting with CMBE subcontractors. A copy of all CMBE subcontractors' current CMBE certifications must be submitted with the proposal. Several of these certificates are available in Appendix 12. The total proposed dollar amount of the contract $465,375.00 The total proposed dollar amount of the subcontracted services with CMBE subcontractors is $88,421.00 Percentage that will be contracted to CMBE subcontractors is 10-19.99% Appendix 12 of Intervenor's Technical Proposal contained certifications for the following "CMBE subcontractors": Snelling Personnel Services; A-1 Kleaning Klinic, Inc.; StaffWorks, Inc.; Consultis (Computemp of Tampa, Inc.); D & A Building Services, Inc.; Excel Business Products; Thomas Janitorial and Cleaning Service; Data America (Ashlyn Corporation); Have Broom Will Travel; Aasys Group, Inc.; Bowen Travel Service (Varsity Enterprises, Inc.; TempWise, Inc.; and Tomlin Temporary Services, Inc. It can be gleaned from a review of these certificates and the other documents included in Appendix 12 of Intervenor's Technical Proposal the "type[s] of services/commodities" the following of these "CMBE subcontractors" offer: StaffWorks, Inc. ("permanent" and "temporary" staffing and "consulting" in "information systems," "sales and marketing," "administrative" matters, "accounting," and "clerical" matters); Consultis (Computemp of Tampa, Inc.)("information technology staffing solutions"); D & A Building Services, Inc.("janitorial services, window cleaning, pressure cleaning, caulking and other building services"); Excel Business Products (business products); Thomas Janitorial and Cleaning Service (cleaning services); Data America (Ashlyn Corporation)("computer hardware, software, service, training, and computer supply items"); Have Broom Will Travel (cleaning and janitorial services); and TempWise, Inc. ("temporary and permanent staffing" services). The names of the remaining "CMBE subcontractors" whose certifications were included in Appendix 12 of Intervenor's Technical Proposal, with the exception of Aasys Group, Inc., suggest what "type[s] of services/commodities" they may offer. Petitioner's Submission Petitioner's submission consisted of two volumes (Petitioner's Complete Proposal). Volume I of Petitioner's Complete Proposal contained the "technical" component of its submission (Petitioner's Technical Proposal). Volume II of Petitioner's Complete Proposal contained its "price/cost offer" (Petitioner's Cost Proposal). Petitioner's Complete Proposal contained 47 consecutively numbered pages (which included a completed Form PUR 7033 and a table of contents), plus "exhibits" that were appended thereto. Staffing On numbered page 11 of its Complete Proposal, Petitioner stated the following regarding "supervision and staffing": Close supervision is absolutely and critically essential. The young women committed to the facility are designated as moderate risk. Close and consistent supervision is a vital ingredient in ensuring the program's success and acceptance within the community. Twenty-four (24) hour, awake, sight and sound supervision with the prescribed staff to client ratio (1 staff per 8 youth during waking hours, /6 1 staff per 12 youth during sleeping hours, 1 staff per 5 youth while transporting) is provided on a continuous basis by direct-care staff who are in constant sight and sound of the residents. All staff are trained and alerted to female specific issues of supervising young women. Managers provide direct supervision to direct-care staff. This approach supports the policy of security being an integral part of treatment and avoids the typical treatment-security dichotomy. The Program Director and designated supervisory staff [are] responsible for on-call coverage. Numbered page 35 of Petitioner's Complete Proposal contained an organizational chart for the Cove. The chart reflected that Sara Leidtke "LMHC" reports directly to the Director of Adolescent Services, Amy Bejarano. The following page (numbered page 36) contained an organizational chart for Agape Family Ministries, the entity (of which Petitioner is the parent) that operates the Cove. It reflected that the Cove employs a "LMHC." The "resumes for professional staff members" were set forth on numbered pages 37 and 38 of Petitioner's Complete Proposal. Among these "resumes" was that of the "therapist," which read as follows: The qualifications for this position is a Master's Degree in a human services discipline such as social work, mental health counseling, marriage and family therapy, psychology, rehabilitation, counseling, etc. plus two years relevant work experience; or a Doctoral Degree plus one year relevant work experience. A license is required. Duties and responsibilities include providing all B- HOS services which include counseling to individuals, groups, and families using recognized therapeutic techniques, behavioral planning, evaluation of client needs, development and coordination of treatment plans, may prepare diagnostic evaluation and administer psychological tests, may participate in community education programs, may develop and/or deliver in-service training to other service staff, provides clinical supervision to other clinical staff, may be responsible for coordination of certain services or projects within a program. This is a full time position. Numbered page 39 of Petitioner's Complete Proposal set forth a "staffing plan," which gave the "name," "title," and "weekly hours" of those who would be members of the Cove staff. Among those named was Sara Leidtke. Next to her name (under "title") was "LMHC" and "40 (BHOS)" (under "weekly hours"). According to the "staffing plan," the total "weekly hours" for all staff members combined would be 384. (Intervenor's "staffing plan" reflected that there would be a total of 496 "weekly hours" for all staff members combined.) CMBEs On numbered pages 39 and 40 of its Complete Proposal, Petitioner discussed its "past performance." In its discussion, Petitioner made no mention of any "CMBE prior utilization." Petitioner's "subcontracting plan" was included as a one-page, unnumbered exhibit appended to its Technical Proposal and Cost Proposal. The first paragraph of this "subcontracting plan" was a verbatim recital of the first paragraph (following the "note") of Section K.7.10. of the RFP. The remainder of the "subcontracting plan" read as follows: The total proposed dollar amount of the contract: $408,843.00 The total proposed dollar amount of the subcontracted services with CMBE subcontractors is: $13,920.00 The percentage that will be subcontracted to CMBE subcontractors is: 3.4% Nowhere else in its Complete Proposal did Petitioner provide any other information or documentation (such as certifications) relating to its CMBE "subcontracting plan." Source Selection Evaluation Team A Source Selection Evaluation Team (SSET) was formed to evaluate the technical proposals that had been submitted in response to RFP No. K9018. Three District 11 employees were selected to serve on the SSET: Joan Berni, Michael Burns, and Terri Evans. Each of these employees had the necessary qualifications, in terms of his or her experience and knowledge, to competently discharge his or her duties as a SSET member. Ms. Berni is a program administrator in District 11 in charge of special projects. She has been employed by Respondent since 1998, during which time she has served as an evaluation team member on multiple occasions. From 1968 to 1986, Ms. Berni was employed by Respondent's predecessor, the Department of Health and Rehabilitative Services (HRS). During this period, she served as an intake specialist and manager in HRS' Division of Children, Youth and Families, and as a deputy district administrator (in District 10). While serving in these positions, she "reviewed hundreds of proposals." Mr. Burns is now, and has been for the last ten years (a portion of which time he worked for HRS), a commitment manager. As a commitment manager, he conducts commitment conferences and makes recommendations to the court concerning delinquent youth committed to Respondent. Ms. Evans is a senior juvenile probation officer. As such, she supervises delinquent youth on community control. She has been in her present position for one year and has been an employee of Respondent since May of 1996. The February 17, 2000, Meeting of the SSET The SSET members met as a group on the morning of February 17, 2000, with the new contract manager for RFP No. K9018, Jounice Dunson, and her supervisor, Ms. Cadavid. At the meeting, the SSET members were each given copies of the RFP, the "technical" components of the three proposals submitted in response to the RFP, a document entitled "Briefing for Source Selection Evaluation (SSET) Team Members and Advisors," a "SSET Technical Proposal Evaluation Score Sheet," a "Department of Juvenile Justice Conflict of Interest Questionnaire," and a memorandum from Ms. Cadavid, which described the "recommended review process." /7 In addition, at the meeting, SSET members were provided with verbal instructions, among which was the following (as described in the minutes of the meeting): "if a [CMBE] certification is not seen hold for verification when the team meets again." SSET Technical Proposal Evaluation Score Sheet The SSET Technical Proposal Evaluation Score Sheets (Score Sheets) that were distributed to the SSET members directed them to "[u]se the following rating scores to rate the . . . evaluation criteria" (as described in Section L.2.1 through L.2.4. of the RFP): if "[t]he proposal exceeds all technical specifications and requirements for all program components" and "is innovative, comprehensive, and complete in every detail," it should receive a "rating" of "excellent" and a "score" of 5; if "[t]he proposal meets all technical specifications and requirements for all program components," "is comprehensive and complete in every detail," and "contains some innovative details for some of the program components," it should receive a "rating" of "very good" and a "score" of 4; if "[t]he proposal meets all technical specifications and requirements for all program components," it should receive a "rating" of "adequate" and a "score" of 3; if "[t]he proposal does not meet all technical specifications and requirements for all program components, or it does not provide essential information to substantiate the offeror's ability to provide the service," it should receive a "rating" of "poor" and a "score" of 2; if "[t]he proposal: 1. Contains errors and/or omissions in major areas of the program components; 2. Demonstrates the offeror's lack of understanding of the technical specifications and requirements for program components; or 3. Fails to substantiate the offeror's ability to provide the service," it should receive a "rating" of "unsatisfactory" and a "score" of 1; and if "[t]he offeror's proposal addresses none of the program components," it should receive a "rating" of "not addressed" and a "score" of 0. The Score Sheets further instructed that, for each "score" above 3, the evaluator give (in the space provided) a "narrative description" of the "strengths" of the proposal (with respect to the evaluation criterion in question) and, for each score below 3, the evaluator give (in the space provided) a "narrative description" of the "weaknesses" of the proposal (with respect to the evaluation criterion in question). The Score Sheets contained the following instructions with respect to the scoring for "evaluation criterion" L.2.5: QUESTION 1. Is the Offeror a Certified Minority Business Enterprise, as verified by its certification of its conducting business in the State of Florida as a CMBE which is included in its proposal or as verified on the Florida Department of Labor website, as referenced by J.4. of the RFP. ANSWER: Circle one of the following: YES NO (If the answer to this question is YES, give a score of 5 and stop here. If the answer to the question is NO, give a score of 0 and go on to question 2.) QUESTION 2. If the Offeror is a non-CMBE provider, did the offeror include with its proposal the subcontracting plan for all proposed CMBE subcontractors, as required by K.7.10. ANSWER: Circle one of the following: YES NO (If the answer to this question is NO, give a score of 0. If the answer to this question is YES, then use the following rating scale for the score. If the total CMBE subcontract dollars are equal to 40% or more of the total proposed contract price, use "5." If the total CMBE subcontract dollars are from 30 to 30.99% /8 of the total proposed contract price, use "4." If the total CMBE subcontract dollars are from 20 to 20.99% /9 of the total proposed contract price, use "3." If total CMBE subcontract dollars are from 10 to 19.99% of the total proposed contract price, use "2." If total CMBE subcontract dollars are greater than 0 to 9.99% of the total proposed contract price, use "1." If the total CMBE subcontract dollars are 0% of the total proposed contract price, use "0." The Scoring of Proposals Each member of the SSET, without collaboration with any other member of the team, reviewed and evaluated the "technical" components of the three proposals that had been submitted in response to RFP No. K9018 and entered their scores on the Score Sheets they had been provided for that purpose. In discharging their duties as SSET members, they made a good faith effort to evaluate the proposals based upon what they understood the RFP to require. (Ms. Cadavid attempted to help them better their understanding by providing them with her interpretation of certain evaluation criteria.) SSET members acted honestly and without any unfair bias, partiality, or favoritism. They turned in their completed Score Sheets after meeting individually with Ms. Dunson and Ms. Cadavid on February 23, 2000. The following are the scores that Petitioner and Intervenor received: For Program Services (Soundness of Approach): Petitioner- 4 (from Ms. Berni), 3 (from Mr. Burns), and 5 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), 5 (from Mr. Burns), and 3 (from Ms. Evans) For Program Services (Compliance with Requirements) Petitioner- 4 (from Ms. Berni), 2 (from Mr. Burns), and 4 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), 2 (from Mr. Burns), and 3 (from Ms. Evans) For Organizational Capability (Soundness of Approach) Petitioner- 3 (from Ms. Berni), 3 (from Mr. Burns), and 5 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), 4 (from Mr. Burns), and 3 (from Ms. Evans) For Organizational Capability (Compliance with Requirements) Petitioner- 3 (from Ms. Berni), 3 (from Mr. Burns), and 4 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), 3 (from Mr. Burns), and 3 (from Ms. Evans) For Management Approach (Soundness of Approach) Petitioner- 3 (from Ms. Berni), 3 (from Mr. Burns), and 3 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), 4 (from Mr. Burns), and 3 (from Ms. Evans) For Management Approach (Compliance with requirements) Petitioner- 3 (from Ms. Berni), 3 (from Mr. Burns), and 3 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), 3 (from Mr. Burns), and 3 (from Ms. Evans) For Past Performance Historical Implementation Petitioner- 4 (from Ms. Berni), 4 (from Mr. Burns), and 5 (from Ms. Evans) Intervenor- 5 (from Ms. Berni), 3 (from Mr. Burns), and 3 (from Ms. Evans) Educational Achievements Petitioner- 2 (from Ms. Berni), 3 (from Mr. Burns), and 4 (from Ms. Evans) Intervenor- 5 (from Ms. Berni), 3 (from Mr. Burns), and 3 (from Ms. Evans) Recidivism Rates Petitioner- 4 (from Ms. Berni), 3 (from Mr. Burns), and 4 (from Ms. Evans) Intervenor- 3 (from Ms. Berni), 3 (from Mr. Burns), and 3 (from Ms. Evans) QA evaluation Petitioner- 3 (from Ms. Berni), 3 (from Mr. Burns), and 3 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), 3 (from Mr. Burns), and 3 (from Ms. Evans) Community Involvement Petitioner- 4 (from Ms. Berni), 3 (from Mr. Burns), and 5 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), 3 (from Mr. Burns), and 4 (from Ms. Evans) Prior CMBE Subcontracting Petitioner- 0 (from Ms. Berni), 0 (from Mr. Burns), and 0 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), 3 (from Mr. Burns), and 3 (from Ms. Evans) Additional Points Available (CMBE Offeror or Use of CMBE Subcontractors) Petitioner- 1 (from Ms. Berni), 1 (from Mr. Burns) and 1 (from Ms. Evans) Intervenor- 2 (from Mr. Berni), 2 (from Mr. Burns), and 2 (from Ms. Evans) On the Score Sheet he used to evaluate the "technical" component of Petitioner's proposal, in the space provided for "strengths and weaknesses," next to the score (2) he gave for the criterion, "Program Services, Compliance with Requirements," /10 Mr. Burns wrote: "No assurance of Licensed Mental Health Professional on campus 40 hrs/wk." Mr. Burns was unclear as to what the reference to "LMHC" in Petitioner's proposal meant. Had he known, at the time that he was evaluating Petitioner's proposal, that "LMHC" was an acronym for licensed mental health counselor, he "may have" (as he testified at hearing) scored Petitioner's proposal higher than he did for the criterion, "Program Services, Compliance with Requirements," but he would not have given Petitioner a score (for that criterion) any higher than a 3. The Tabulation of the SSET Members' Scores Ms. Dunson and Ms. Cadavid tabulated the points on Ms. Berni's, Mr. Burns', and Ms. Evans' Score Sheets; determined (in light of the provisions of Section L. of the RFP) the "weight" to be given the scores for each evaluation criterion; and then prepared charts (Technical Evaluation Scoring Summaries) which showed that Petitioner had received "weighted" total scores of 358, 422, and 284 from Ms. Berni, Ms. Evans, and Mr. Burns, respectively, for an average "weighted" total score of 354.67, and that Intervenor had received "weighted" total scores of 421, 331, and 366 from Ms. Berni, Ms. Evans, and Mr. Burns, respectively, for an average "weighted" total score of 372.67. The Technical Evaluation Scoring Summary of the scores Intervenor received should have reflected that Ms. Evans had given Intervenor a 3 (not a 2) for the "Additional Points Available" (CMBE Offeror or Use of CMBE Subcontractors) criterion /11 and that, therefore, the total number of points Intervenor had received from Ms. Evans (when properly "weighted") was 321 (not 331) and Intervenor's average "weighted" total score was 369.33 (not 372.67). This error, however, did not have an effect on the ultimate outcome of the evaluation of the "technical" components of the proposals. Even if this error had not been made, Intervenor would still have had the highest average "weighted" total score. There has been no showing that any other errors were made by Ms. Dunson and Ms. Cadavid in preparing the Technical Evaluation Scoring Summaries. On February 24, 2000, Ms. Cadavid sent the following memorandum to Ron E. Williams, a senior juvenile justice manager with Respondent: The SSET Committee composed of Joan Berni, PA; Terri Evans, SJPO; and Michael Burns HSPM; completed the Evaluation/Scoring of all proposals submitted for RFP K9018, 15 Bed Level 6 Female Residential Halfway House Program, that closed on February 10. 2000. Please note that no proposals were rejected. The bid tabulations for all proposals are as follows: Proposer Name Points Awarded Associated Marine Institute[s], Inc. 372.67 South Florida Jail Ministries 354.67 Non-Secure Detention Home Inc. 261.00 The Proposal evaluation SSET committee recommends an award to Associated Marine Institute[s], Inc If you have any questions please advise Mr. Williams "concurred" with the recommendation Notice of Posting and Contract Award Thereafter, Respondent issued a Notice of Posting and Contract Award, which provided, in pertinent part, as follows: The department opened proposals received in response to Request for Proposal number K9018, titled 15 Bed Level 6 Residential Female Halfway House Program, Miami-Dade County on February 10, 2000 at 3:05 p.m. Pursuant to Chapter 120.57(3), Florida Statutes, the posting of this Notice of Intent to Contract will commence on February 29, 2000, at 9:05 a.m. and continue for 72 hours until March 3, 2000, at 9:05 a.m. The department's selection team, according to Chapter 287.057(15), Florida Statutes, has identified Associated Marine Institute[s], Inc. for potential award(s) for the contract. The following list identifies offerors who submitted proposals in response to this competitive procurement and provides the total score and ranking for each. Offeror's name Points Awarded Associated Marine Institute[s], Inc. 372.67 South Florida Jail Ministries 354.67 Non-Secure Detention Home Inc. 261.00 Failure to file a protest within the time prescribed in s. 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. All bids/proposals accepted by the State are subject to the State's terms and conditions and any and all additional terms and conditions submitted by the bidders/proposers are rejected and shall have no force and effect. Offers from provides listed herein are the only offers received timely as of the above opening time and date. . . . . Petitioners' Protest Petitioner timely protested the decision announced in Respondent's Notice of Posting and Contract Award. Evaluation of Cost Proposals An evaluation of cost proposals has yet to be conducted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent issue a final order rescinding its "identif[ication of] Associated Marine Institute[s], Inc. for potential award(s) [of] the contract" advertised in the RFP on the ground that such action was premature in the absence of any determination as to which of the proposals submitted in response to the RFP offered the "best value," but not granting any of the other relief sought by Petitioner except for the correction of the Technical Evaluation Scoring Summary of the scores Intervenor received to reflect that Ms. Evans gave Intervenor a 3 (not a 2) for the "Additional Points Available" (CMBE Offeror or Use of CMBE Subcontractors) criterion and that, therefore, the total number of points Intervenor received from Ms. Evans (when properly "weighted") was 321 (not 331) and Intervenor's average "weighted" total score was 369.33 (not 372.67). DONE AND ENTERED this 23rd day of June, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2000.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether the Petition to Establish the Myakka Ranch Community Development District (Petition) meets the criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code. The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue The issue for determination is whether Petitioner is entitled to creditable service in the Florida Retirement System for service in the Florida Virtual School from September 15, 2001, through June 30, 2002.
Findings Of Fact Petitioner is a regular class member of the Florida Retirement System (FRS). On October 23, 2003, Petitioner entered the Deferred Retirement Option Program (DROP) and left her employment on June 30, 2004. Petitioner worked most of her career as a teacher and an administrator for the Pasco County School Board (School Board). The School Board is a local education association (LEA) and a local agency employer within the meaning of Subsection 121.021(42)(a), Florida Statutes (2001). Beginning with the 2001-2002 school year, Petitioner undertook additional employment by working in the Florida Virtual School (FVS) in accordance with former Section 228.082, Florida Statutes (2000).1 Petitioner undertook additional employment to increase the average final compensation (AFC) that Respondent uses to calculate her retirement benefits. From September 15, 2001, through June 30, 2004, Petitioner worked for the LEA and served in the FVS. During the 2001-2002 school year, Petitioner was a full-time employee for the LEA and also served part-time in the FVS. Beginning with the 2002-2003 school year, Petitioner served full-time in the FVS and also worked for the LEA during the summer. The LEA paid Petitioner annual salaries as a full-time employee for all relevant school years and made the necessary contributions to the FRS. The AFC includes compensation Petitioner received from the LEA, and that compensation is not at issue in this proceeding. With one exception, the AFC includes the compensation Petitioner received for service in the FVS. The AFC does not include $6,150 (the contested amount) that Petitioner earned during her first year of service in the FVS from September 15, 2001, through June 30, 2002 (the contested period).2 Sometime prior to April 2004, Petitioner requested that Respondent include the contested amount in her AFC. In a one- page letter dated April 6, 2004 (the preliminary denial letter), Respondent notified Petitioner that Respondent proposed to deny the request. The grounds for denial stated that Petitioner earned the contested amount in a temporary position and that FVS did not join the FRS until December 1, 2001. In relevant part, the preliminary denial letter states: . . . you filled a temporary instructional position as an adjunct instructor whose employment was contingent on enrollment and funding pursuant to Section 60S- 1.004(5)(d)3, F.A.C., copy enclosed. As such, you are ineligible for . . . FRS . . . participation for the time period in question. The School joined the FRS on December 1, 2001 and past service was not purchased for you since you filled a temporary position. Effective July 1, 2002, you began filling a regularly established position with the Florida Virtual High School and were correctly enrolled in FRS. The School has reported your earnings from July 1, 2002, to the present to the FRS. Respondent's Exhibit 2 (R-2). A two-page letter dated June 23, 2004 (the denial letter), notified Petitioner of proposed final agency action excluding the contested amount from her AFC. The only ground for denial stated that Petitioner earned the contested amount in a temporary position. The denial omits any statement that FVS did not join the FRS until December 1, 2001. However, the denial letter includes a copy of the preliminary denial letter and is deemed to include, by reference, the stated grounds in the preliminary denial letter. In relevant part, the denial letter states: By letter dated April 6, 2004 (copy enclosed). . . [Respondent] advised you filled a temporary instructional position as an adjunct instructor from September 15, 2001 through June 30, 2002. We have reviewed the information submitted in your recent letter and maintain our position that you were an adjunct instructor from September 2001 through June 2002, pursuant to Section 60S-1.004(5)(d)3, F.A.C. (copy enclosed). Your employment with the Florida Virtual School during the time period in question was contingent on enrollment and funding. Since you filled a temporary position, the School was correct in excluding you from the [FRS]. This notification constitutes final agency action. . . . R-3 at 1. The legal definition of a temporary position varies depending on whether the employer is a state agency or a local agency. If the employer is a state agency, a position is temporary if the employer compensates the position from an account defined as "an other personal services (OPS) account" in Subsection 216.011(1)(dd), Florida Statutes (2001) (OPS account). If the employer is a local agency, a position is temporary if the position will exist for less than six consecutive months; or as otherwise provided by rule. § 121.021(53), Fla. Stat. (2001). The distinction is based, in relevant part, on the practical reality that local agencies do not maintain OPS accounts for "the fiscal affairs of the state." § 216.011(1), Fla. Stat. (2001). The employer that paid Petitioner the contested amount was not an LEA. Three different employers may have been responsible for payment of the contested amount. Some evidence supports a finding that the employer was the Board of Trustees of FVS (the Board). Contracts of employment for service in FVS identify the employer as the Board.3 The Board has statutory authority over personnel serving FVS and has statutory authority to govern FVS. Other evidence supports a finding that the employer that paid Petitioner the contested amount was FVS. The record evidence identifies the employer that enrolled in FRS and made contributions on behalf of Petitioner as FVS. Finally, there is evidence that the Orange County School Board, acting as the statutorily designated fiscal agent for FVS (the fiscal agent), was the employer that paid Petitioner the contested amount. The contested amount was paid from funds administered by the fiscal agent in the name of FVS. The Board, FVS, and the fiscal agent each exemplify distinct characteristics of a state agency defined in Subsection 216.011(1)(qq), Florida Statutes (2001). The Board consists of seven members appointed by the Governor for four-year staggered terms. The Board is a public agency entitled to sovereign immunity and has authority to promulgate rules concerning FVS. Board members are public officers and bear fiduciary responsibility for FVS. The Board has statutory authority to approve FVS franchises in each local school district. §§ 228.082, Fla. Stat. (2000) and 1002.37, Fla. Stat. (2001). FVS is administratively housed within an office4 of the Commissioner of Education, as the Head of the Department of Education (Commissioner). The fiscal year of FVS is the state fiscal year. Local school districts cannot limit student access to courses offered statewide through FVS.5 The fiscal agent of FVS is a state agency. The fiscal agent receives state funds for FVS and administers those funds to operate FVS for students throughout the state. The Board, FVS, and the fiscal agent each satisfy judicial definitions of a state agency pursuant to "territorial" and "functional" tests discussed in the Conclusions of Law. Each agency operates statewide in accordance with a statutory mandate to serve any student in the state. Each serves students in public and private schools; in charter schools; in home school programs; and in juvenile detention programs. Unlike an LEA, the scope of authority and function of the employer that paid the contested amount to Petitioner was not circumscribed by county or other local boundaries; regardless of whether the employer was the Board, FVS, or the fiscal agent (collectively referred to hereinafter as the employer). The employer did not pay the contested amount from an OPS account. The fiscal agent for FVS is the presumptive repository of funds appropriated for FVS. The fiscal agent is organically structured as a local agency even though it functions as a state agency in its capacity as fiscal agent. Unlike a state agency, an organic local agency does not maintain an OPS account, defined in Subsection 216.011(1)(dd), Florida Statutes (2001), for the "fiscal affairs of the state." The legislature funded FVS during the contested period in lump sum as a state grant-in-aid provided in a line item appropriation pursuant to Subsection 228.082(3)(a), Florida Statutes (2000). The legislature subsequently began funding of FVS through the Florida Education Finance Program (FEFP). Each FVS student with six-credit hours required for high school graduation is included as a full-time equivalent student for state funding. Each student with less than six-credit hours counts as a fraction of a full-time equivalent student. A local LEA cannot report full-time equivalent student membership for courses that students take through FVS unless the LEA is an approved franchise of FVS and operates a virtual school. As student enrollment in FVS increased, the legislature changed the funding formula to avoid paying twice for students in FVS; once to fund FVS and again to fund local LEAs that were authorized to earn FTE funding for students enrolled in FVS. The employer that paid the contested amount to Petitioner was a state agency that did not compensate Petitioner from an OPS account defined in Subsection 216.011(1)(dd), Florida Statutes (2001). Petitioner did not earn the contested amount in a temporary position within the meaning of Subsection 121.021(53)(a), Florida Statutes (2001), and Florida Administrative Code Rule 60S-6.001(62). Respondent argues that Petitioner earned the contested amount in a temporary position in a local agency defined in Subsection 221.021(42), Florida Statutes (2001), and Florida Administrative Code Rule 60S-6.001(36). A temporary position in a local agency is generally defined to mean a position that will last less than six months, except as otherwise provided by rule. By rule, Respondent defines a temporary position to include temporary instructional positions that are established with no expectation of continuation beyond one semester. Fla. Admin. Code R. 60S-1.004(5)(d)3. Respondent supports its argument with limited documentary evidence (the documents). The documents consist of several items. An undated FVS Information Sheet indicates the employer started Petitioner as an adjunct instructor on September 15, 2001. An FVS memorandum dated several years later on March 16, 2004, indicates Petitioner started an adjunct position on September 6, 2001, and includes a parenthetical statement that it was seasonal employment.6 The employer paid Petitioner $3,150 during 2002 as miscellaneous income and reported it to the Internal Revenue Service (IRS) on a "Form 1099-Misc." An undated letter of intent for the 2002-2003 school year, which requests submission before March 8, 2002, indicates that Petitioner intended to continue her adjunct employment status and requested a full-time position if one became available.7 Use of labels such as "adjunct" to describe employment status during the contested period would be more probative if the duties Petitioner performed were limited to the duties of a part-time, on-line instructor. As discussed hereinafter, Petitioner earned the contested amount while occupying a dual- purpose position in which she performed both the duties of an instructor and significant other duties unrelated to those of an instructor. The trier of fact would be required to disregard a substantial body of evidence to find that Petitioner's position was limited to that of a part-time, on-line instructor. The IRS requires taxpayers to report miscellaneous income paid to independent contractors on Form 1099-Misc. Neither the denial letter nor the preliminary denial letter includes a statement that Petitioner occupied a non-employee position as an independent contractor. Judicial decisions discussed in the Conclusions of Law give little weight to the use of IRS Form 1099-Misc in cases such as this one where there is little other evidence of independent contractor status or where the evidence establishes an employer-employee relationship. The record evidence discussed hereinafter shows that Petitioner and her employer enjoyed a continuing employment relationship within the meaning of Florida Administrative Code Rule 60S-6.001(32)(f). Respondent was not a party to the employment contract and did not witness the employment relationship between Petitioner and her employer. Nor did Respondent call a witness from FVS who was competent to testify about events that occurred during the contested period. The testimony of Petitioner is supported by the totality of evidence. In relevant part, Petitioner disclosed to her supervisors at FVS at the time of her employment that she sought employment to enhance her retirement benefits. The proposed exclusion of the contested amount from the AFC is inconsistent with a material condition of employment. Respondent asserts that the documents satisfy requirements for notice and documentation of a temporary position in Florida Administrative Code Rule 6.1004(5). The rule requires an employer to notify an employee at the time of employment that the employee is filling a temporary position and cannot participate in the FRS; and to document the intended length of the temporary position. However, the terms of the documents from Respondent are ambiguous and insufficient to provide the required notice and documentation. The documents did not expressly notify Petitioner she was filling a temporary position that did not qualify as a regularly established position in the FRS. None of the documents use the term "temporary" or "temporary position." The notice and documentation requirements of the rule must be satisfied, if at all, by implication from terms on the face of the documents such as "adjunct," "adjunct position," and "adjunct employment status." Unlike the term "temporary position," neither the legislature nor Respondent defines the term "adjunct." One of the several common and ordinary uses of the term "adjunct" can mean, "Attached to a faculty or staff in a temporary . . . capacity." The American Heritage Dictionary of the English Language, at 21-22 (4th ed. Houghton Mifflin Company 2000). The employer used an undefined term such as "adjunct" as an ambiguous euphemism for a temporary position. The ambiguity of the term "adjunct" is underscored when each document from Respondent is considered in its entirety. The letter of intent form requested Petitioner to indicate whether she intended to continue her "adjunct employment status" and whether she would be interested in "a full-time position." The form did not refer to either a "temporary position," or a "part-time position." Petitioner reasonably inferred that "adjunct employment status" was the part-time alternative to "a full-time position." The inference was consistent with the announced purpose for serving in FVS and the evidence as a whole. Respondent also does not define part- time employment to exclude a regularly established position. The FVS utilized different contracts for adjunct and part-time instructors. The contracts of record pertaining to Petitioner are not contracts for adjunct instructors (adjunct contracts). The contracts are annual contracts. Even if Petitioner were to have signed a contract for adjunct instructors, the contract used for adjunct instructors was ambiguous. In relevant part, the adjunct contract included a caption in the upper right corner labeled, "Terms of Agreement for Part-Time Instructional Employment." (emphasis supplied) As previously found, a part-time position may be a regularly established position. Use of the term "part-time employment" on a contract for an adjunct instructor supported a reasonable inference that the employer was using the terms "adjunct" and "part-time" synonymously to differentiate part-time employment from full-time employment. The employer required Petitioner, unlike adjunct instructors, to sign in on an instructor log sheet and to attend training sessions and staff meetings. Petitioner attended training sessions on September 8 and 22, and October 24, 2001. Petitioner attended other training sessions on February 26 and 27, 2002, and on March 27 and April 10, 2002. The employer also issued office equipment to Petitioner that the employer did not issue to adjunct instructors. Petitioner performed significant duties in addition to those required of a part-time instructor. Petitioner wrote grant applications and assisted in writing a procedures manual for FVS. By November 30, 2001, Petitioner had completed and submitted a federal "Smaller Learning Communities Grant" for $230,000. On December 27, 2001, Petitioner began working on the procedures manual, finalized the work on January 3, 2002, and was listed in the credits in the manual. The additional duties assigned to Petitioner continued through the second semester of the contested period. On February 26 and 27, 2002, FVS asked Petitioner to develop their "FCAT" course for the eighth grade. Petitioner wrote and developed the course. By May 30, 2002, Petitioner had written and submitted three more grant applications and was a member of a team that developed strategies for additional fundraising. For the 2002-2003 school year, Petitioner entered into an annual contract for a full-time non-instructional position, as Grants Manager, and a separate contract for employment in a part-time instructor position. Each contract was terminable only for "good cause" within the meaning of Subsection 1002.33(1)(a), Florida Statutes (2002). The expectation of continued employment is further evidenced by the general business experience of FVS leading up to the contested period. In the 1997-1998 school year, approximately 25 students were enrolled statewide in FVS. In the next three years, enrollment grew to 5,564. Professional staff grew from 27 teachers to 54 full-time teachers. Legislative funding was adequate for the growth FVS experienced, and the legal contingency of enrollment and funding was not a realistic condition of continued employment. There was nothing temporary in the expectations of the employer and Petitioner during the contested period. FVS staff had legitimate business reasons to expect continued student enrollment and legislative funding during the contested period. The employer also had legitimate reasons to expect continued employment of Petitioner based on the individual experience the employer enjoyed with Petitioner, the ongoing and continuous nature of Petitioner's work, and the significant additional duties assigned to Petitioner. The employer, in fact, employed Petitioner continuously after the contested period. When FVS enrolled in the FRS on December 1, 2001, some employees purchased past credit. Petitioner was not on the list of employees for whom past credit was purchased. That omission is consistent with Petitioner's understanding that she was already receiving FRS credit. By rule, Respondent required the employer to make an affirmative disclosure that Petitioner did not occupy a position qualifying for FRS credit. After FVS enrolled in the FRS on December 1, 2001, FVS was required to make contributions to the FRS on behalf of Petitioner for approximately 208 days during the remainder of the contested period. FVS did not make the required contributions to the FRS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order including in the AFC that portion of the contested amount earned on and after December 1, 2001, and excluding the remainder of the contested amount from the AFC. DONE AND ENTERED this 25th day of March, 2005, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2005.
The Issue Respondent's motion to dismiss is based on the argument that DPR has no authority to refile a case it previously dismissed, absent a new finding of "probable cause" by the Board of Medicine.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a final order be entered dismissing the complaint in case #92-2202. DONE and ENTERED this 16th day of September, 1992, at Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1992. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Brooten, Jr., Esquire 660 West Fairbanks Avenue Winter Park, FL 32789 Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Are the February 13, 2014, letters of Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), requiring totalisator reports to "identify the Florida [permitholder] in reports as both host and guest when applicable," statements that amount to a rule, as defined in section 120.52(16), Florida Statutes (2013).1/
Findings Of Fact Florida permits and regulates betting on greyhound racing,2/ jai alai games,3/ quarter horse racing,4/ and harness racing.5/ The Division is responsible for administration of Florida's statutes and rules governing this betting. JKC and OPKC are separate, individually permitted facilities. Jacksonville Greyhound Racing owns and operates both the JKC and the OPKC. It is not, however, a party to this proceeding. The betting system is a pari-mutuel system. This "means a system of betting on races or games in which the winners divide the total amount bet, after deducting management expenses and taxes, in proportion to the sums they have wagered individually and with regard to the odds assigned to particular outcomes."6/ Each race, contest, or game is an "event."7/ The aggregate wagers called "contributions" to pari-mutuel pools are labeled "handle." § 550.002(13), Fla. Stat. An "intertrack wager" is "a particular form of pari-mutuel wagering in which wagers are accepted at a permitted, in-state track, fronton, or pari-mutuel facility on a race or game transmitted from and performed live at, or simulcast signal rebroadcast from another in-state pari-mutuel facility."8/ The JKC offers intertrack wagering at its permitted facility located in Jacksonville, Florida. It does not offer live events. The OPKC offers intertrack wagering and wagering on live events conducted at its permitted facility in Orange Park. The Racetracks are host tracks when they transmit live greyhound racing to other in-state and out-of-state facilities for off-track wagers.9/ They are guest tracks when wagers are made at their separate permitted locations on pari-mutuel races or games conducted at third-party facilities.10/ Florida statutes and the Division's rules require detailed reports from permitholders to the Division and other permitholders, including tables of wagers, pool data, and winnings.11/ These reports are generated by "totalisators." A totalisator is "the computer system used to accumulate wagers, record sales, calculate payoffs, and display wagering data on a display device that is located at a pari-mutuel facility."12/ The Division's Form DBPR-PMW-3570 requires host permitholders to report intertrack wagering "handle" by guest on a monthly basis. The host permitholders must sign and attest to the accuracy of the information submitted in the form. Also, Florida Administrative Code Rule 61D-7.023(2) requires generation of reports for each pool within each contest to be printed immediately after the official order of finish is declared. On March 9, 2012, the Division issued a letter to AmTote International ("AmTote"), a licensed totalisator company, and copied Jacksonville Greyhound Racing, notifying AmTote that Florida permitholders and the Division would need a breakdown of the handle of the Racetracks in order to pay appropriate purses, taxes, or other liabilities. It sent a similar letter to other totalisator companies. This was an effort to be accommodating and flexible. The letter concluded: "Please continue to provide handle information broken down by source, which is required by rule to all those in the state of Florida who have been users of that information in the past." The Racetracks rely upon AmTote to provide their totalisator services. Between March 2012 and March 2014, AmTote commingled the Racetracks' wagering data into a single "community," reporting all wagering as coming from the OPKC in order to reduce interface fees paid for the totalisator service. The guest track wagering data and reports exchanged with the other totalisator companies from the Racetracks show up on the AmTote settlement files as OPKC. The reports do not differentiate between wagers made at each of the Racetracks. Before March 1, 2012, AmTote segregated wagering data as coming from either JKC or OPKC. During the two years reported by the Racetracks as a single community, the Racetracks separately provided Florida host tracks a supplemental report breaking down the sources within the common community. The Racetracks provided these supplemental reports--via email or other means--to assist Florida host tracks with reporting requirements. They did not provide them simultaneously with the other reports and data. There were frequently errors that had to be identified and corrected. In an effort to be flexible and work with the Racetracks, the Division tolerated this method of reporting for two years. But it created problems for both the Division and for the other permitholders in the state. On February 13, 2014, the Division prepared and issued correspondence to AmTote, as well as the two other Florida totalisator companies, announcing that it intended to require proper reporting of the data required by rule, including reports of each permitholder. The letter states: This letter is to address the issue of proper and complete identification of each individual permitholder in totalisator reports. Rule 61D-7.024(1), Florida Administrative Code, requires all Florida pari-mutuel permitholders to use an electronically operated totalisator. Rule 61D-7.023(9), F.A.C. states in part, ". . . Each report shall include the permitholder's name . . .," and Rule 61D-7.024(4), F.A.C. states in part, ". . . reports shall be kept logically separate . . . ." Further, Rule 61D-7.023(1), F.A.C. states, "The totalisator licensee shall be responsible for the correctness of all tote produced mutual accounting reports. " In accordance with Florida Administrative Code, the division requires each permitholder to be properly and uniquely identified by totalisator reports provided to the division and to the permitholders. In addition, the totalisators are responsible for the correctness of all tote produced mutual accounting reports. Reports provided after February 28, 2014 must properly identify the Florida Permitholder in reports as both host and guest when applicable. Improper identification of permitholders will be considered a violation of the Florida Administrative Code. On March 11, 2014, AmTote began segregating wagering data from the Racetracks in compliance with the February 13, 2014, letter. The Racetracks will incur additional financial costs if AmTote ends the reporting of all wagering data as coming from OPKC for purposes of reports provided to other totalisator companies licensed in Florida and begins segregating their wagering data by individual permitholders. These costs stem from additional interface fees incurred outside the regulatory jurisdiction of Florida. The only evidence of these costs is the testimony of Matthew Kroetz, vice-president of Operations for Jacksonville Greyhound Racing. The testimony of Mr. Kroetz about the cost of the required change is confusing because he mingles assumed costs for a third closed track as if it were reactivated and operational. Bayard Raceways is that track. The Racetracks' parent company owns it. But the likelihood and timing of that reactivation is speculative. In addition, Bayard is not a party to this proceeding. Neither is the parent company. Mr. Kroetz' testimony establishes that the current cost for the two petitioners is a total of $1,500 per month. He projects that costs for reporting, as the letter requires, would be $4,500 per month for the two Petitioners and the track that may reopen in the future. That testimony is unrebutted and consistent with his testimony that the recurring fees for all three tracks would total over $50,000 annually. It is accepted as accurate. But the $3,000 increase from $1,500 to $4,500 per month is not due solely to the reporting requirement. It is also due to lumping in the non-active track. The evidence does not support including that track, the opening of which is speculative. The monthly fee for the two operating tracks is $1,500 divided by two or $750. Subtracting that, as the current cost for an existing track, from the $3,000 increase, lowers the estimated increase to $2,250. Dividing that by three gives the increased monthly cost per track, or $750 per track. This results in the projected annual cost increase for each of the Racetracks of $9,000. Although Mr. Kroetz testified in summary that the changes would result in an increased cost of "about a thousand dollars per month per facility," that testimony is not persuasive. It is inconsistent with the more detailed testimony relied upon above and would require the improbable and unsupported conclusion that the monthly increase would be more than the existing fees.
The Issue Whether Petitioner was eligible for membership in the Florida Retirement System (FRS) during the effective dates of the Client Service Agreement (Agreement) between Petitioner and ADP TotalSource Services, Inc. (TotalSource).1 Whether Respondent is estopped to deny Petitioner’s request to purchase retirement credit for the subject employees during the seven-month period during which the Agreement was in effect.
Findings Of Fact TCT is an independent special taxing district of local government established pursuant to Section 1.01(A)(11) of the Miami-Dade County Home Rule Charter; Ordinance No. 02-247, Sections 1-11 (adopted December 3, 2002); and Section 125.901, Florida Statutes, et. seq., for the provision of children’s services. TCT is devoted to funding “improvements for the children of Miami-Dade County in the areas of health, safety, parental responsibility, community responsibility and other necessary and important services.” Miami-Dade County Code Art. CIII, §§ 2-1521-2-1531. Other special taxing districts for services in the State of Florida participate in the FRS. On July 23, 2003, officials from TCT contacted DOR to communicate TCT’s desire to participate in FRS and request instructions on how to enroll its employees for FRS retirement benefits. On July 24, 2003, Ms. Smith, acting in her capacity as a benefits administrator employed by Respondent, forwarded to TCT an FRS membership package which included a Resolution relating to FRS membership to be approved by TCT’s Board and two accompanying FRS Agreements. On July 30, 2003, Resolution #2003-01, Resolution Relating to Membership into the FRS, was adopted by TCT’s Board. On September 1, 2003, after receiving TCT’s Notice of Employer Identification Number from the Internal Revenue Service on August 27, 2003, Mr. Abety, in his capacity as the president and CEO of TCT, signed the two FRS Agreements. On September 9, 2003, Mr. Abety sent a letter to Ms. Smith enclosing the two FRS Agreements, TCT’s Resolution Relating to Membership into the FRS, and the IRS Notice of Employer Identification Number, fully expecting that FRS coverage would be initiated on October 1, 2003. Mr. Abety again corresponded with Ms. Smith on September 17, 2003, to advise that TCT would make its retirement contributions to FRS by check and asked if FRS preferred bi- weekly or monthly payments. On September 5, TCT entered into the Agreement with TotalSource to provide TCT with payroll, health insurance, life insurance, short and long-term disability insurance, and dental and vision coverage. TotalSource did not provide TCT employees with any retirement benefits. After reviewing TCT’s Agreement with TotalSource, FRS advised TCT on September 23, 2003, that because it appeared the employees covered under the Agreement would be under the control and direction of TotalSource, they were employees of a private company and thus ineligible for FRS benefits. Following Respondent’s denial of participation in FRS, TCT began the process of entering into a new agreement for the provision of personnel services with a vendor other than TotalSource. On February 18, 2004, TCT emailed DOR a new proposed agreement between TCT and AlphaStaff for the provision of payroll, insurance and other human resources services in order to determine if the agreement would permit FRS benefits to begin for TCT employees. On April 20, 2004, FRS determined that the agreement between TCT and AlphaStaff would not bar the workforce of TCT from participating in FRS because AlphaStaff provided only “routine personnel services” to TCT.3 After approving the agreement between TCT and AlphaStaff, DOR accepted TCT as an FRS member effective May 1, 2004. On April 22, 2004, TCT transmitted to DOR the County Ordinance creating TCT, two FRS Agreements, a Resolution Relating to Membership in FRS, TCT’s federal employer tax identification number, and a notification that a fully executed agreement between TCT and AlphaStaff would be forwarded on April 26, 2004. The two FRS Agreements, the Resolution, and the employer tax identification number were identical to those sent to FRS in September 2003. The agreement between TCT and AlphaStaff that had been approved by FRS was fully executed on April 26, 2004. On April 29, 2004, DOR signed and approved the FRS Agreement to commence FRS benefits effective May 1, 2004. Per letter dated May 7, 2004, DOR advised TCT that “since your agency did not qualify for FRS membership until May 1, 2004, past service cannot be purchased prior to the amendment date.” Per letter dated May 27, 2004, Mr. Abety requested the FRS effective date be changed to October 1, 2003. Throughout the period TCT attempted to secure FRS membership. TCT did not participate in any other retirement plan. After being informed in September 2003 that its contract with TotalSource precluded participation in FRS, TCT was engaged in the process of entering into an agreement for personnel services that DOR would find acceptable. On June 23, 2004, TCT received notice of a final agency action from DOR in which DOR rejected TCT’s request to purchase past service and advised TCT of its appeal rights. TCT filed its Petition to review final agency action requesting an evidentiary proceeding on July 15, 2004. Past FRS benefits are being requested for the seven- month period beginning October 1, 2003 and ending May 1, 2004. The 18 TCT employees affected are:4 Modesto E. Abety Lilia R. Abril Emily Cardenas Dwight Danie Robin J. Douglas David C. Freeman Lisete Fuertes K. Lori Hanson Andrea Harris Chareka Hawes Christine Muriel Jeanty Jolie C. Jerry Jean S. Logan Susan B. Marian Eric R. Pinzon Diana Ragbeer Deborah Robinson Margaret L. Santiago The six employees who are vested in the FRS are: Modesto E. Abety Dwight Danie Andrea Harris Jolie C. Jerry Diana Ragbeer Deborah Robinson. TotalSource is a licensed employee leasing company under Part XI of Chapter 468, Florida Statutes. “Employee leasing” is defined by Section 468.520(4), Florida Statutes, as being “. . . an arrangement whereby a leasing company assigns its employees to a client and allocates the direction and control over the leased employees between the leasing company and the client ”5 TCT is referred to as the “client” in the Agreement between TotalSource and TCT. Section (1) of the Agreement, styled “The Parties Relationship,” provides as follows: The parties intend to create an arrangement so that TotalSource, as the Professional Employer Organization (PEO), can provide human resource services to Client. As provided by the Florida legislature, TotalSource shall have sufficient authority so as to maintain a right of direction and control over Worksite Employees (defined in Section 2) assigned to Client’s location, and shall retain the authority to hire, terminate, discipline, and reassign Worksite Employees. Client shall, however, retain sufficient direction and control over the Worksite Employees as is necessary to conduct Client’s business and without which Client would be unable to conduct its business, discharge any fiduciary responsibility that it may have, or comply with an applicable licensure, regulatory, or statutory requirement of Client. Such authority maintained by Client shall include the right to accept or cancel the assignment of any Worksite Employee. Additionally, Client shall have sole and exclusive control over the day to day job duties of Worksite Employees and over the job site at which, or from which, Worksite Employees perform their services. Client expressly absolves TotalSource of liability which results from control over the Worksite Employee’s day-to-day job duties and the job site at which, or from which, Worksite Employees perform their services. Further, Client retains full responsibility for its business products and services, worksite premises, property, and any actions by an third party, contractor, independent contractor or non-Worksite Employee. Client acknowledges that TotalSource has the right to retain and reassign a Worksite Employee who has been terminated by Client. Section 2 of the Agreement, styled “TotalSource Relationship to the Worksite Employees,” provides as follows: The term “Worksite Employees” means individuals hired by TotalSource, assigned to Client’s worksite, after the individuals [have] satisfactorily completed TotalSource pre-employment paperwork [and] background screens as necessary. Client agrees to submit to TotalSource the completed TotalSource pre-employment paperwork no later than two (2) business days after the Client selects the person for employment. The term excludes 1) those employees hired by TotalSource to perform services for TotalSource and not assigned to any Client Worksite (i.e., TotalSource Corporate Employees), and 2) Independent contractors or individuals who may be providing services to Client through any other arrangement entered into solely by Client. TotalSource will notify all Worksite Employees in writing about the PEO arrangement at the beginning and end of this Agreement. During the Agreement, both Client and TotalSource will employ each Worksite Employee. This Agreement does not change the underlying employment relationship between any Worksite Employee and Client that existed prior to or may be created after the Effective Date. Further, this Agreement does not create any rights for any Worksite Employee that did not previously exist (e.g., creating an employment contract with the Worksite Employee). In Section 5(F) of the Agreement, the parties acknowledge that the Client exercises control over the primary terms and conditions of employment for the subject employees. Miguel Masedo was the General Manager for the Southeastern operations for TotalSource when it entered into the Agreement with TCT. Mr. Masedo did not negotiate the Agreement between his company and TCT, but he did sign the Agreement, and he testified as to the manner in which his company operated with TCT. Mr. Masedo’s deposition was admitted as Joint Exhibit 17. On page 22, beginning at line 12, the following Questions from Ms. Arista-Volsky and Answers from Mr. Masedo appear: Q. Okay. Earlier you told me and we discussed that The Trust employees in fact were hired by The Trust before they contracted with your services, correct? A. Yes. Q. So basically when they entered into this contract and were put on the payroll for the purposes of payroll processing, that’s when you make the determination, or you’re saying that they became . . . [sic] A. We actually hired them into ADP TotalSource, they signed new documentation, I-9s, W-4s, they gave us their employment information, so we literally hired them on to ADP TotalSource.[6] On page 23, beginning at line 13, the following Questions from Ms. Arista-Volsky and Answers from Mr. Masedo appear: Q. And the Client Services Agreement did not change the underlying employment relationship between The Trust and its employees; correct? A. What the Client Services Agreement did was it defined us as another employer for these employees, so we are under a co- employment relationship, so certain employment responsibilities would have been the responsibilities of The Trust and would have remained, and other employment responsibilities would have transferred over to ADP TotalSource. TotalSource was the named employer on each employee’s W-2 forms. For each subject employee, TotalSource also paid social security taxes and provided workers’ compensation coverage. TotalSource issued salary warrants to each employee. These payments were to be from funds TCT was required by the Agreement to pay to TotalSource. TotalSource was, by the terms of the Agreement, responsible for the payment of the subject employees even if TCT failed to make its required payments to TotalSource. Although by the terms of the Agreement, TotalSource had legal authority to hire, supervise, and discipline the subject employees, TotalSource rarely exercised those rights in dealing with a client and it did not do so in its dealings with TCT. TotalSource never attempted to control or run the affairs of TCT. It never attempted to exercise any direction or control over Mr. Abety or any other subject employee. TCT initially recruited and hired all of the subject employees. At no time during the period at issue did a TotalSource corporate employee come to the TCT worksite for the purposes of supervising or monitoring the activities of the subject employees. TCT controlled the daily activities of the subject employees at all times relevant to this proceeding. At all times relevant to this proceeding, Mr. Abety and his staff set the terms and conditions of employment for the subject employees and supervised the day-to-day operations of TCT. At no time relevant to this proceeding did Mr. Abety, acting on behalf of TCT, intend for TotalSource to exercise any control over the subject employees. Mr. Abety intended only that TotalSource provide human resources services in the forms of payroll services, worker’s compensation coverage, and a benefits package (excluding a retirement plan). Mr. Abety testified that he did not construe the Agreement as being a contract to lease the subject employees from TotalSource. Based on the findings that follow, it is found that Mr. Abety knew or should have known that he was entering into an employee leasing agreement with TotalSource. As set forth above, in the Agreement, TotalSource refers to itself as a Professional Employer Organization, which is a term for an employee leasing company. The Agreement provides that TotalSource shall have “. . . sufficient authority so as to maintain a right of direction and control over Worksite Employees . . . and shall retain the authority to hire, terminate, discipline, and reassign Worksite Employees. ” Moreover, in the final paragraph of the Agreement, under the heading of “Additional Client Representation” the following appears: “Client understands that, pursuant to Florida law, it may not enter into a PEO (sometimes referred to as an employee leasing) agreement with TotalSource if Client owes a current or prior PEO any money pursuant to any service agreement which existed between that current or prior PEO and Client, or if Client owes a current or prior insurer any premium payments. . . . DOR denied TCT’s request for past service because, under the terms of the Agreement, and Part XI of Chapter 468, Florida Statutes, the subject employees appeared to be employees of TotalSource. In its letter dated June 23, 2004, with the style of “Final Agency Action”, DOR advised Mr. Abety that TCT “. . . joined the FRS effective May 1, 2004 and is ineligible to purchase past service since prior to that date the employees were employed by ADP TotalSource Services, Inc., a private company.” While the Agreement was in effect, the subject employees were employees of both TCT and TotalSource for certain purposes. Under the Agreement between TotalSource and TCT, TotalSource and TCT were dual or joint employers. There was a co-employment relationship. DOR agrees that TCT and TotalSource were co-employers or joint employers. In paragraph 25 of its Proposed Recommended Order, DOR submitted the proposed finding of fact that during the effective dates of the Agreement, the subject employees were “. . . dual or joint employers. There [was] a co-employment arrangement.” In paragraph 53 of its Proposed Recommended Order, DOR proposed the following conclusion of law: 53. However, the totality of the evidence establishes that TotalSource and Children’s Trust are, as Mr. Masedo testified, ‘under a co-employment relationship.’ Children’s Trust and TotalSource were inextricably linked as co-employers, or joint or dual employers. They both shared attributes of being an ‘employer.’ Prior to entering into the Agreement, staff of TCT contacted staff of DOR to inquire what needed to be done for TCT employees to become members of the FRS. DOR staff advised that a membership package would be mailed and that the TCT employees would become part of the FRS after the membership package was processed. For service performed by TCT employees prior to the date TCT became part of the FRS, DOR staff advised that TCT employees could purchase credit for that prior service period if TCT did not participate in another retirement plan. TCT maintains that the information provided by DOR staff that TCT could participate in FRS as long as TCT did not participate in another retirement plan was misleading. TCT further maintains that it detrimentally relied on that misleading information from DOR and that DOR should be estopped to deny the right to purchase credit for the seven-month period at issue in this proceeding. TCT did not disclose to DOR that they were contemplating entering into the Agreement with TotalSource prior to doing so. Consequently, DOR had no reason to discuss with TCT its position that the Agreement would preclude TCT’s membership in FRS. DOR staff gave TCT staff accurate advice based on the information provided to DOR by TCT. TCT would not have executed the Agreement had it known that the terms of the Agreement would disqualify it from membership in FRS. Most of the subject employees were initially recruited by TCT because they were experienced government employees. It was important to TCT from its inception that its employees continue to be eligible for FRS benefits. TCT made diligent efforts to locate a suitable human resources provider to replace TotalSource after it learned from DOR that the terms of the Agreement disqualified the subject employees from membership in FRS. It took TCT almost the entire seven-month period at issue in this proceeding to locate the replacement provider (AlphaStaff).
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order providing that TCT be granted membership in FRS effective October 1, 2003, and that it be permitted to purchase retirement credit for the subject employees for the seven-month period beginning October 1, 2003, and ending April 30, 2004. DONE AND ENTERED this 28th day of April, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2006.
