The Issue The issue presented here concerns the entitlement of the Petitioners to be granted licenses to work in the Mutuels Department of the Fronton, Inc., a Florida Jai Alai concession located in West Palm Beach, Florida. More specifically, the matter to be resolved concerns the Respondent's refusal to license the named Petitioners in the aforementioned capacity based upon the alleged activities of those Petitioners during the 1977 season of the New Port Rhode Island Jai Alai Fronton. The Petitioners are alleged to have conspired to commit a fraudulent or corrupt practice in relation to the game of jai alai and committing fraud or corruption in relation to the game through conspiring to use and using positions as handicappers in misleading the public for the Petitioners' benefit, contrary to Rule 7E-3.12, Florida Administrative Code. It is further alleged that the Petitioners have violated Rule 7E-3.05, Florida Administrative Code, by associating with their fellow co-Petitioner with a knowledge that the co-Petitioner has violated State of Florida's rules and regulations related to jai alai by conspiring to commit and committing a corrupt and fraudulent practice in relation to the game of jai alai as specified in the discussion of Rule 7E-3.12, Florida Administrative Code. The Respondent also claims that it has information, to include the information related in the discussion of the two rules provisions, which information is a prima facia indication that the Petitioners are not of good moral character as required by Chapter 550, Florida Statutes, because of their conduct in the relation to the game of jai alai, which conduct would cause a reasonable man to have substantial doubt about the Petitioners' honesty, fairness and respect for the rights of others and would erode the public's confidence and the honest outcome of jai alai matches in the State of Florida. 1/
Findings Of Fact Prior to the season for the jai alai known as the Fronton, Inc., located in West Palm Beach, Florida, for the years 1980-81, the Petitioners In the above-styled actions made application for an occupational license to be granted by the Respondent. The licenses requested were to work as employees of the Fronton, Inc., in the mutuels department. The applications for licensure on the part of the Petitioners concerned re-licensure for the upcoming jai alai season in West Palm Beach, Florida. The Petitione'rs had never been denied an occupational license by the Respondent in the past. After reviewing the license applications, the Division Director of the Division of Pari-Mutuel Wagering issued letters on November 4, 1980, directed to the named Petitioners, denying their license requests. A copy of that correspondence may be found as Respondent's Composite Exhibit No. 1, admitted into evidence. The grounds for license denial were as set forth In the issues statement of this Recommended Order. The letters of denial indicated the Opportunity for the Petitioners to request a Section 120.57, Florida Statutes, hearing and the Petitioners availed themselves of that opportunity. Subsequent to the request for a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, the Respondent forwarded the case to the Division of Administrative Hearings for a formal hearing. That hearing was conducted on the dates as stated in the introductory portion of this Recommended Order. At the time of the hearing, and continuing to the point of the entry of this Recommended Order, the parties are still desirous of being granted the subject occupational licenses. These licenses are required by the terms and conditions set forth in Section 550.10, Florida Statutes (1980). The Petitioners have complied with all procedural requirements for licensure and are entitled to be licensed unless the grounds for license denial as stated in the November 4, 1980, correspondence are well-founded. During the 1977 jai alai season at the Rhode Island Jai Alai in New Port, Rhode Island, Petitioner Gallo was employed as a sellers" This employment involved punching tickets in the mutuels area of the Fronton where tickets are issued to bettors. Petitioner Barth also worked at the Fronton in the calculating room as an employee of the Fronton. This is the area where the money is collected from the bettors and tabulated. In that racing season, while employed by the Fronton in Rhode Island, Gallo, Barth and one Robert Fusco, were involved as partners in a venture known as "list betting." Each of the partners had contributed five to six thousand dollars ($5,000.00 to $6,000.00) for the purpose of conducting "list betting." In particular, the "list betting" involved the placement of numerous combinations of numbers on each jai alai game in an effort to win the trifecta portion of the wagering on the individual games. To be successful in the trifecta wager, it was necessary that the three-number combination which constitutes an individual wager comport with the individual team performance for win, place and show. As example, if the individual number combination bet was 8-1-2, then the number (8) team would need to win, the number (1) team would need to place, and the number (2) team would need to show. The partnership was betting from a list of trifecta combinations which were the result of research conducted by the partnership on the subject of other jai alai seasons. The list of those numbers utilized in the betting may be found as Petitioners' Exhibit No. 4, admitted into evidence. The partnership utilized the "list betting" system for all games during the 1977 season up to August 24, 1977, when the partnership was dissolved. The philosophy of the "list betting" was to win often enough and in sufficient amounts of money to offset the cost of high volume betting. In this pursuit, the partnership leaned toward the utilization of trifecta combination numbers which would grant the largest return in a winning payoff, as opposed to being concerned with the frequency of the payoff of the chosen combination trifecta number. In addition, the skill of the players in the jai alai game was not a critical factor. The amount of money being spent on the individual games varied from five, to, eight hundred dollars ($500.00 to $800.00) and, as a result of the "list betting" activities of the partnership, the partnership realized a profit. The money that was won was constituted of the proceeds from the trifecta pool In a given game less cost deductions extracted by the State and the Fronton. The money pool that remained after these cost items had been deducted was divided between the winning ticket holders in the trifecta pool on an equal basis. Therefore, the fewer winning tickets, the larger the monetary return. After August 24, 1977, the Petitioners still continued to make trifecta bets, but not as part of the partnership. One of the other functions that the Petitioners performed together with another Fronton employee, Thomas F. Dietz, was the position as handicapper. (Dietz was a statistician at the Fronton.) Dietz and the Petitioners each would pick a single combination of three numbers to be placed on the game programs for each of the games during the meet under a code identification. Gallo was under the heading Massachusetts; Barth, Rhode Island; and Dietz, Connecticut. Dietz, In turn, made a determination about the "consensus" of the handicappers and made a three-number combination entry on the program under the heading "consensus." These handicap, picks, are depicted in copies of the racing programs which are found in the Respondent's Composite Exhibit No. 4, admitted into evidence. Gallo stopped making handicap selections some three or four days after August 24, 1977, and Dietz stopped his handicap selections on September 15, 1977. Barth made handicap selections for the entire season. It is not certain what the Fronton intended in having the handicappers place their "handicap line" on the game programs; however, the only compensation which the handicappers would receive from the Fronton for their efforts was a. monetary prize of twenty-five dollars ($25.00) to be awarded at the end of each month for that handicapper who selected the most quiniela predictions. (A quiniela nick is a combination of three numbers in which the successful bettor must have selected the win and place numbers in his three-number selection, without regard for the order of selection. As an example, if the quiniela picked by the bettor was the combination 1-2-3, and the winning number was (2) and the place number was (3), the bettor would win the quiniela selection.) There was no testimony on the subject of the betting public's perception of the "handicap line" found on the programs and nothing about those programs identifies the intended purpose. An analysis of those number combinations on the program, which are picks of a combination of three numbers within the range of (1) through (8)(the numbers representing the players in their game position), leads to the conclusion that the numbers could have been utilized by the betting public as trifecta or quiniela bets. The successful utilization of those numbers as a trifecta pick would always entail success as a quiniela selection, but a successful quiniela bet would not always be a successful trifecta bet. The established breakdown of betting patterns in the jai alai season shows that 55 to 60 percent of bets were made as quinielas. Management expressed no Opposition during the course of the season to the fact that the Petitioners were "list bettors"; employees of the Fronton and handicappers during the same time period. Moreover, it was not, per se, a violation of the regulatory statutes and rules in Rhode Island for an employee to be a "list bettor." It is the juxtaposition of "list bettor/employee/handicapper, which has put the question of the Petitioners' current request for licensure in Florida at issue. In this regard, the witness Dietz' testimony establishes the fact that on numerous occasions, during the 1977 jai alai season in Rhode Island, Gallo requested that Dietz change the numerical order of his picks in his position as handicapper for the individual games as appeared on the programs, because Gallo was of the persuasion that the Dietz selections interfered with the Opportunity for Gallo and Barth to be successful in their trifecta "list betting." Whether the fact of Dietz' changes in his "handicap line" brought about greater success for the Petitioners "list betting" system was not established in the course of the hearing. It is apparent that there was a substantial difference in the utilization of the numbers in Petitioners' Exhibit No. 4 (constituted of "list betting" combination numbers), in Barth's program selection In the "handicap line" several weeks prior to August 24, 1977, and several weeks beyond that point, the August date being the date that the partnership was dissolved. The comparison of these numbers demonstrates that Barth utilized the number combinations found in Petitioners' Exhibit No. 4, four times as much in the several week period beyond August 24, 1977, as contrasted with the several week period prior to August 24, 1977. Gallo had stopped handicapping some three or four days after August 24, 1977, so a comparison of the utilization of numbers in Petitioners' Exhibit No. 4, as a basis for handicap selections is limited to three or four days prior to August 24, 1977, and three or four days beyond that date. Again, Gallo used the numbers from the list for handicap selections subsequent to August 24, 1977, for that three or four day period as compared to the three or four day period prior to that date, roughly four times as frequently. A similar comparison of Dietz' handicap selections from several weeks prior to August 24, 1977, and several weeks after August 24, 1977, in the sense of the utilization of number combinations that were found in the Petitioners' Exhibit No. 4; shows that Dietz used those number combinations essentially with the same frequency prior to and after August 24, 1977. This analysis of the matter takes into account the fact that Gallo and Barth, on a few occasions, did not act as handicappers. An analysis of the Gallo, Barth and Dietz choice of handicap numbers and the comments of Gallo made to Dietz about changing Dietz' number combinations when Dietz was handicapping, leads to the conclusion that the Petitioners felt that there was some relationship between exempting the numbers from their list in Petitioners' Exhibit No. 4 from the handicap selections and Dietz altering his numbers on the handicap selections and success in the Petitioners' "list betting" pursuit. This is further substantiated by the fact that around August 24 or 25, 1977, Dietz asked Gallo why the nature of his selections in handicapping had changed and Gallo replied to the effect that he, Gallo, had stopped his "list betting" activities so he could now use "good numbers' without hurting his winnings. The evidence in this case does not reveal the success that the Petitioners had in this pursuit due to the choice not to use numbers from their list in their handicap selections and due to the change of Dietz' handicap selections promoted by the Petitioner Gallo. The lack of data on the question of the overall effect of removing the Petitioners' numbers in their Exhibit No. 4, from the "handicap line" and the further lack of testimony on the question of the public's utilization of the "handicap numbers," does not allow factual conclusions to be drawn on the question of the effect of the Petitioners' action on the outcome of betting; and the possible additional money to be realized by the Petitioners through the implementation of their technique of withholding the numbers from their list and influencing Dietz to change his numbers on order of finish, which caused the public to use the "handicap numbers" for trifecta betting, thereby decreasing the general public's opportunity to be successful In the trifecta bet.
Recommendation Based upon a full consideration of the facts found and the conclusions of law reached herein, it is RECOMMENDED: That Richard Joseph Barth and John Randy Gallo he denied occupational licenses to work in the mutuels department of the Fronton, Inc., West Palm Beach, Florida, for the 1981-82 season and that this recommendation he effectuated by the entry of a final order agreeing with the findings of fact, conclusions of law and recommendations set forth. DONE and ENTERED this 2nd day of November, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1981.
The Issue Whether Leroy Smith and/or Alice Longwood are entitled to the $5,000.00 prize for a winning lottery ticket presented by Leroy Smith to the Lottery for collection?
Findings Of Fact On March 7, 1988, Mr. Smith completed a Lottery Winner Claim Form (hereinafter referred to as the "Form") and submitted the Form and a Cool Million instant-winning lottery ticket (hereinafter referred to as the "Ticket"), number 02-114569-303, good for a prize of $5,000.00 for collection. On the back of the Ticket Mr. Smith listed his name and address on the spaces provided for the person claiming the prize and signed the Ticket. The space on the back of the Ticket where the first name of the person claiming the prize was to be listed had been covered with a "white-out" material and "Leroy" written in. At the bottom of the Form Mr. Smith indicates that this was done to replace his first name for a nickname that had previously been entered on the ticket. Mr. Smith also listed his name, Social Security Number, address and phone number on the Form. Mr. Smith signed the Form as the "Claimant." In a letter dated March 8, 1988, DHRS notified the Lottery that Mr. Smith owed $7,478.20 in Title IV-D child support arrearages and $150.00 in court-ordered costs, a total of $7,628.20, as of March 8, 1988. By letter dated March 18, 1988, Mr. Smith was notified that the $5,000.00 prize for the Ticket he submitted was being transferred to the Comptroller for possible payment of his Title IV-D child support arrearages and court costs. The $5,000.00 prize was forwarded from the Lottery to the Comptroller on March 22, 1988. Mr. Smith was notified by the Comptroller by letter dated March 23, 1988, that the Comptroller intended to apply the $5,000.00 prize toward his unpaid obligation. Mr. Smith requested a hearing to contest the proposed action of the Comptroller. The Title IV-D child support arrearages and court costs owed by Mr. Smith are related to two child support cases involving Mr. Smith. First, on December 1, 1981, Mr. Smith was ordered to pay child support to Deidah Brown in an Order of Dependency and Support issued by the Circuit Court, Seventh Judicial Circuit, in and for Flagler County, Florida. On November 6, 1984, Mr. Smith was ordered to pay child support to Patti Victoria Smith by the same court. Mr. Smith's total obligation as of the date of the formal hearing was $7,348.20: $3,578.20 in public assistance arrearage, $3,620.00 in non-public assistance arrearage and $150.00 in court-ordered costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, It is RECOMMENDED that a final order be Issued providing for payment of the $5,000.00 prize attributable to the Ticket to DHRS. DONE and ENTERED this 22nd day of November, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1743 The Petitioners have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioners' Proposed Findings of Fact Proposed Finding Paragraph number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1-2 1. 3 1-4. 4 5. 5 6. 6 7-8. 7 10. 8 Statement of law COPIES FURNISHED: Jo Ann Levin Senior Attorney Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Leroy Smith Post Office Box 1465 Bunnell, Florida 32010 Patrick Loebig, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Louisa Hargrett, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32301 Alice Longwood Post Office Box 1753 Bunnell, Florida 32010 Rebecca Paul, Secretary Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32301 Tom Bell, General Counsel Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32301
The Issue Whether the State of Florida, through its agencies, collected the money owed it by the Petitioner prior to receipt of a letter from her doctor certifying her disability.
Findings Of Fact On or about June 21, 1990, the Petitioner, Therese L. Hodge, applied for a student loan to pursue educational courses at Career City College in Gainesville, Florida. The loan applied for was a Stafford Loan, a student loan administered by the Department of Education (DOE) through the Office of Student Financial Assistance (OSFA). Under the Stafford Loan program, DOE through OSFA, serves as the guarantee agent performing its responsibilities in accordance with regulations promulgated by the United States Department of Education (USDOE). The essential elements and operation of the loan program are that a participating bank or financial institution agrees to make a loan to a student on the condition that the DOE will issue a written guarantee that it will repay the loan to the lender if the student defaults on the loan. When DOE repays a defaulted loan to the lender, DOE acquires the promissory note and the right to collect from the student. DOE is required by USDOE to pursue collection in order to receive reimbursement from USDOE of the amount paid to the lender. On or about July 7, 1990, OSFA issued its guarantee of a student loan to the Petitioner, and Florida Federal loaned her $1,213.00. While enrolled in her first term at college, the Petitioner suffered a stroke. The Petitioner was observed at the hearing and it was apparent that she had some moderate limitations on her ability to communicate, comprehend, and remember. Petitioner lives on Social Security disability income. Her brother- in-law, who had accompanied her to the hearing, assisted in presentation of Petitioner's case without objection from the Respondents. After the Petitioner defaulted on her student loan, the Petitioner won $5,000 in a Florida lottery game. The Petitioner made demand for payment of the prize money. The Department of Lottery checks winnings of more than $600 to determine if the winner owes any money to the State. In the course of its comparison, the Department of Lottery determined that the Petitioner owed the State money on the defaulted student loan. The Department of Lottery confirmed the indebtedness with the Department of Education, and it was determined that the Petitioner owed $1,231.98 including interest on the defaulted student loan. On January 9, 1993, the Department of Lottery forwarded the $5,000 to the Office of the Comptroller, and notified the Petitioner of her right to request a formal hearing to controvert the Department's collection of the indebtedness. On January 12, 1993, the Petitioner called the Department of Lottery and advised the Department that she was disabled. The Department forwarded to the Petitioner medical forms on January 20, 1993. Subsequently, the Petitioner's physician certified to the state that she was totally and permanently disabled. Documents introduced at hearing show that the Petitioner advised the lending bank on June 17, 1991 that she was disabled due to a stroke and unable to work. The bank sent the Petitioner medical forms in order for her to have her disability certified. The Petitioner did not return the forms due to her financial inability to obtain the required physical. After the Department of Education had repaid the student loan and had turned the matter over to a collection agency, the Petitioner advised the collection agency that she was disabled and the collection agency sent her medical certification forms which she did not have completed due to her financial inability. After she had won the lottery, the Petitioner had the medical certification forms which were forwarded to her by the Department of Education completed by a physician and these were returned to the State after the end of January, 1993 certifying that the Petitioner was totally and permanently disabled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Office of the Comptroller return to the Petitioner the amount $1,231.98. DONE AND ENTERED this 16th day of June, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 June, 1993. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-1218 The Petitioner's sister wrote a letter in the Petitioner's behalf which was read and considered, and is treated as a final argument. The Department of Education filed a proposed order which was read and considered. The following proposed findings were adopted, or rejected for the reason stated: Respondent's (DOE) Proposed Findings: Recommended Order: Paragraph 1-6 Adopted Paragraph 7 Irrelevant Paragraph 8 Adopted Paragraph 9 The Department was on notice of the Petitioner's disability. Total and permanent disability is a medical determination based upon medical certification. The lender was on notice of Petitioner's disability on June 17, 1991. The purpose of the bank sending Petitioner the medical forms was to confirm the medical determination. Paragraph 10-15 Adopted COPIES FURNISHED: Therese L. Hodge and 5855 West Wood Lawn Street Post Office Box 36 Dunnellon, FL 34433 Ocklawaha, FL 32179 Charles S. Ruberg, Esquire Department of Education 325 West Gaines Street Tallahassee, FL 32399-0400 Louisa Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, FL 32301 Leslie A. Meek, Esquire Office of the Comptroller The Capitol, Room 1302 Tallahassee, FL 32399-0350 Gerald Lewis, Comptroller Department of Banking and Finance Tha Capitol Tallahassee, FL 32399-0350
The Issue Whether the Respondent, the Florida Department of the Lottery, discriminated against the Petitioner, Oscar Jacobs, on account of his race in denying him equal opportunity for training, compensation, use of new equipment, time off from work, leave, retention and advancement?
Findings Of Fact The Parties. The Petitioner, Oscar Jacobs, is an Afro-American. His race is black. The Respondent, the Florida Department of the Lottery (hereinafter referred to as the "Department"), is an agency of the State of Florida. District 2 of the Department. In the fall of 1987 the Department created a district office in Panama City, Florida. The Panama City office of the Department was part of District 2 (hereinafter referred to as the "District"). The District consisted of Bay, Calhoun, Gulf, Jackson, Holmes and Washington Counties. Steve Sumner was hired as the District Manager for the District in October of 1987. Mr. Sumner hired the staff of the District in November of 1987. The District had the following type of positions: District Manager. The District Manager was in charge of the District office and was the immediate supervisor of the employees in the District. Among other things, the District Manager was responsible for: (1) the assignment of the geographic areas LSRs were responsible for including the designation of retailers located therein that the LSRs were to service; (2) the approval of leave; and (3) the assignment of vans. Lottery Sales Representative II (hereinafter referred to as an "LSR II"). LSR IIs were responsible for inventorying lottery ticket stock sold at retail locations, settling accounts with retailers for all lottery tickets sold, ordering lottery ticket books, reviewing settlement calculations, training retailers, completing paperwork necessary for retailers to become a lottery outlet, completing paperwork upon the termination of a retailer as a lottery outlet, ensuring that retailers operated within Department rules, soliciting, conducting and monitoring retailer promotions and recruiting new retail accounts. See Petitioner's exhibit 4 for a complete description of an LSR II's job description. Lottery Sales Representative I (hereinafter referred to as an "LSR I"). LSR Is were responsible for delivering lottery tickets, picking up redemption envelopes from retailers and comparing them with issuance/settlement forms, assisting retailers, maintaining paperwork and daily activity reports and filling in for, and assisting, LSR IIs. See Petitioner's exhibit 4 for a complete description of an LSR I's job description. Each LSR I was assigned to work with one particular LSR II. Storekeepers. Storekeepers were responsible for receiving, verifying and sorting incoming orders for lottery tickets, receiving and verifying ticket redemption envelopes and ticket returns, and insuring that materials were distributed. See Petitioner's exhibit 4 for a complete description of a Storekeeper's job description. A Receptionist. An Accountant I. An Administrative Assistant I. Clerical positions. Relevant History of Mr. Jacobs' Employment at the District. In November of 1987, Mr. Sumner hired three LSR IIs (Sandra Doll, Linda Gray and Debra Chason). All three are white. Mr. Sumner also hired two LSR Is. On November 15, 1987, Mr. Sumner hired the Mr. Jacobs as an LSR I. John Stevens was the other LSR I. Mr. Stevens is white. Danny Edwards was hired in 1987 as the Storekeeper, and Mary Jane Silcox was hired as an Administrative Assistant. Mr. Edwards and Ms. Silcox are white. At the time that Mr. Jacobs was hired, he was married. Mr. Jacobs' wife's race is white. Although Mr. Jacobs subsequently separated and eventually obtained a divorce from his wife, Mr. Sumner was not aware of these events until sometime after he had hired Mr. Jacobs. Mr. Sumner was responsible for evaluating Mr. Jacobs' performance. For the fiscal years November 16, 1987 to November 16, 1988, November 16, 1988 to November 16, 1989 and November 1989 to November 1990, Mr. Sumners rated Mr. Jacobs' performance with an overall rating of "Exceeds At Least One Standard." The possible ratings, from lowest to highest, were "Below Standards," "Achieves Standards," "Exceeds at Least One Standard," "Exceeds Most Standards," and "Sustained Superior Performance." In April of 1988, Mr. Edwards was promoted by Mr. Sumner from Storekeeper to LSR I. In May of 1988, Larry Kissinger was hired by Mr. Sumner as the Storekeeper. Mr. Sumner also hired Hannah Davis as an LSR I. Mr. Kissinger and Ms. Davis are white. In March of 1990, one of the LSR IIs, Sandra Doll, went on maternity leave. Mr. Sumner selected Mr. Jacobs to fill the LSR II position of Ms. Doll during her absence. Mr. Jacobs was selected out of the three LSR Is then working for the District. Mr. Sumner arranged for Mr. Jacobs to receive a 10 percent increase in pay. The increase in pay was to be payable while Mr. Jacobs temporarily filled the LSR II position. At about the same time that Ms. Doll went on maternity leave, another LSR II, Ms. Gray, resigned. Mr. Sumner assigned Ms. Gray's duties jointly to one of the other LSR Is, Ms. Davis, and the Storekeeper, Mr. Kissinger. Ms. Davis and Mr. Kissinger did not receive any increase in pay for their services. During the time that Mr. Jacobs served as a temporary LSR II, he performed satisfactorily, with assistance from other District staff. Prior to August of 1990, Ms. Doll resigned. In August of 1990, Mr. Sumner decided to promote Mr. Jacobs permanently to the position of LSR II. The Department's Personnel Office, however, informed Mr. Sumner that Mr. Jacobs did not appear to meet the minimum qualifications for the position. Therefore, Mr. Sumner assisted Mr. Jacobs to supplement his resume by expanding the description of his prior sales experience in order for Mr. Jacobs to meet the minimum requirements. Mr. Jacobs was subsequently determined to be qualified and Mr. Sumner's decision to promote Mr. Jacobs was accepted. Mr. Jacobs' salary was reduced to the amount he had been paid before he was given the temporary 10 percent increase. Mr. Sumner recommended, and Mr. Jacobs received, a permanent 7 percent increase, the maximum pay increase he could be awarded upon his permanent promotion to LSR II. As of August of 1990, Mr. Jacobs became the highest paid LSR II in the District. Mr. Jacobs remained the highest paid LSR II while he was employed as an LSR II and as an LMR. Mr. Kissinger, the Storekeeper, was promoted in August of 1990 to fill the LSR I position vacated by Mr. Jacobs. Ms. Davis was promoted in September of 1990 to fill the other LSR II position. Ms. Silcox, the Administrative Assistant, was promoted to fill Ms. Davis' LSR I position in September of 1990. Charles Frederick, whose race is black, was hired by Mr. Sumner in February of 1991, as the Storekeeper. In December of 1990, Mr. Jacobs remarried. The woman that Mr. Jacobs married in December of 1990 was white. From the time that Mr. Sumner hired Mr. Jacobs until approximately May of 1991, Mr. Sumner was satisfied with Mr. Jacobs' performance. In March of 1989 Mr. Sumner nominated Mr. Jacobs to the Department as the District employee of the month. In approximately May of 1991, however, Mr. Sumner began to lose faith in Mr. Jacobs. Mr. Jacobs believes that Mr. Sumner's attitude toward him began to change in 1991 and he attributes this change to the fact that he had married a white woman in December of 1990. Mr. Jacobs' belief is not, however, supported by the record. In light of the fact that Mr. Jacobs was married to a white woman when Mr. Sumner initially hired him and during at least part of the time that Mr. Sumner found Mr. Jacobs' performance to be satisfactory, Mr. Jacobs' belief is unfounded. A more logical explanation for the change in the relationship of Mr. Sumner and Mr. Jacobs is Mr. Jacobs' decline in performance and Mr. Sumner's criticism of Mr. Jacobs' performance as an LSR II. After being promoted to the permanent LSR II position, Mr. Sumner found Mr. Jacobs' performance to be lacking. In September of 1990, Mr. Sumner wrote four critical memorandums to Mr. Jacobs. Mr. Jacobs, based upon these memoranda and other comments from Mr. Sumner, began to believe that Mr. Sumner was treating him unfairly. This combination of lesser performance and criticism at least contributed to the rift between Mr. Sumner and Mr. Jacobs. By approximately May of 1991 Mr. Sumner concluded that Mr. Jacobs' performance had noticeably deteriorated and he seemed to lose interest in his job. In September of 1991 Mr. Jacobs and his wife became foster parents of two infants. The infants both suffered from severe medical problems. Mr. Jacobs' relationship with Mr. Sumner became more strained as a result of the stress on Mr. Jacobs caused by the children's condition. In the summer of 1991, a new sales director for the District was hired by the Department. SEE 23. For the November, 1990 to November, 1991 fiscal year, Mr. Sumner evaluated Mr. Jacobs' performance as "Achieves Standards." This rating was one rating lower than the previous ratings Mr. Jacobs had received from Mr. Sumner. The rating was for Mr. Jacobs' first full year as an LSR II and reflected the drop in his performance as an LSR II. The following comment, among others, was made by Mr. Sumner on the evaluation: Over the past years Jake has been an enthusiastic and productive worker. This previous year has seen a deterioration of skills that he is normally capable of doing. I feel this maybe [sic] in part to environmental pressures outside of work. Many changes have been made to improve work environment, yet employee doesn't appear to enjoy his work. This change became more evident after first full year as an LSR II. Petitioner's exhibit 11. At the time of the 1990-1991 evaluation of Mr. Jacobs, Mr. Sumner was not aware that changes in the number of LSR positions in the District would be made by the Department in 1992. Effective January 1, 1992, the Department eliminated the LSR I and LSR II classifications. A single classification, Lottery Marketing Representative (hereinafter referred to as "LMR"), was created. The evidence failed to prove that Mr. Sumner was involved in the decision to make this change. Mr. Jacobs, Ms. Chason and Ms. Gray were reclassified from LSR II to LMR. Mr. Edwards, Mr. Kissinger and Ms. Silcox were reclassified from LSR I to LMR. In March of 1992 Mr. Sumner was notified by the Department that the sales staff of the District was being reorganized. As a consequence, the District LMR positions were to be reduced from six positions to four. As a part of the reorganization, the District was to receive one new position: a Telemarketing Representative, a newly created employee classification. As a result of the reorganization, Mr. Sumner was faced with reclassifying/demoting one LMR and possibly terminating one LMR. Mr. Sumner was only given two weeks to make the changes. In order to minimize the impact of the reorganization on employees of the District, Mr. Sumner successfully convinced the Department to locate the new Telemarketing Representative position at the District office. Mr. Sumner informed the LMRs of the reorganization and sought volunteers to take the Telemarketing Representative position in a meeting of all LMRs. Ms. Silcox subsequently volunteered to take the Telemarketing Representative position. At the time that Mr. Sumner was deciding how to comply with the Department's reorganization, the Administrative Assistant position in the District became vacant. Ms. Silcox subsequently agreed to take the Administrative Assistant position when Mr. Sumner asked her to. As a result of Ms. Silcox taking the Administrative Assistant position, Mr. Sumner did not have to terminate any LMR. The person in the other LMR position eliminated could move into the Telemarketing Representative position. Mr. Sumner spoke to the remaining four LMRs seeking a volunteer to take the Telemarketing Representative position. Mr. Edwards indicated that he would consider taking the position but delayed a decision over night. Mr. Jacobs did the same. Ultimately, none of the remaining five LMRs volunteered to take the Telemarketing Representative position. Mr. Sumner was required to select one of the five LMRs (Ms. Chason, Mr. Edwards, Ms. Gray, Mr. Jacobs or Mr. Kissinger) to be placed in the Telemarketing Representative position. Mr. Sumner decided that Mr. Jacobs should be reassigned/demoted to the Telemarketing Representative position. Mr. Jacobs was informed of the decision and was given the choice of accepting the Telemarketing Representative position with no reduction in salary or moving to Gainesville or Tampa as an LMR. Mr. Jacobs elected to take the Telemarketing Representative position so that he would not have to move. Mr. Jacobs was placed in the Telemarketing Representative position and continued to be paid the same salary he was receiving as an LMR. Mr. Jacobs received no reduction in pay or benefits. The Basis for Mr. Sumner's Decision to Reassign/Demote Mr. Jacobs. Mr. Sumner's decision to place Mr. Jacobs in the Telemarketing Representative position was based on his perception of the performance of the four other remaining LMRs (after Ms. Silcox had agreed to take the Administrative Assistant position) under Mr. Sumner's supervision compared to Mr. Jacobs' performance. Mr. Sumner took into account the past performance of each of the five LMRs and their progress in the various positions they had held under Mr. Sumner's supervision. Mr. Sumner did not base his decision on or consider seniority. Mr. Sumner selected Mr. Jacobs based upon the decline in Mr. Jacobs' performance since being promoted to LSR II, and his perception of the relatively slower development of Mr. Jacobs' abilities as an LSR II when compared with the other LMRs. All of the LMRs (while employed in the various positions under Mr. Sumner's supervision) had experienced problems in their performance and had been criticized by Mr. Sumner. There were no exceptions. Except for Mr. Jacobs, all of the LMRs had received consistently high evaluations of "Exceeds at Least One Standard" or "Exceeds Most Standards" each year while under Mr. Sumner's supervision. These ratings were based on their overall performance and the evidence failed to prove that the ratings were not reasonable. Only the rating given to Mr. Jacobs for his last evaluation period prior to his assignment to the Telemarketing Representative position had declined below those ratings. Two of the five LMRs had held LSR positions for a shorter period of time than Mr. Jacobs: Mr. Edwards: Storekeeper from 1987 to April of 1988, LSR I from April of 1988 to January of 1992, and LMR from January of 1992; and Mr. Kissinger: Storekeeper from May of 1988 to August of 1990, LSR I from August of 1990 to January of 1992 and LMR from January of 1992. Mr. Edwards and and Mr. Kissinger were not selected to be placed in the Telemarketing Representative position because of their consistently high evaluations and because they had both continued to progress and improve in their performance consistently after being employed in the District. Mr. Jacobs had not continued to progress and improve. The Impact of Routes on Mr. Jacobs' Performance. In the fall of 1987, the District was divided into three geographic areas (hereinafter referred to as "Routes"), by Mr. Sumner. Each LSR II was assigned to one of the three Routes and was responsible for servicing the retailers located therein. Each of the three Routes contained a part of Panama City, the largest city in the District, and a part of the rural areas of the District. Ms. Doll was assigned the eastern portion of the District, Ms. Gray was assigned the western portion and Ms. Chason was assigned the rest. Mr. Jacobs was assigned to work with Ms. Chason on the Route assigned to her. When Ms. Doll left the District and Mr. Jacobs was temporarily assigned to replace her, Mr. Jacobs took over Ms. Doll's Route plus a part of Ms. Gray's Route. Mr. Jacobs satisfactorily performed his duties as an LSR I on Ms. Chason's Route and while temporarily replacing Ms. Doll as an LSR II on Ms. Doll's Route. These Routes did not adversely affect Mr. Jacobs' performance. In September of 1990, when Mr. Jacobs was permanently promoted to LSR II and Ms. Davis was promoted to an LSR II position, the Routes were restructured by Mr. Sumner. Mr. Jacobs continued to serve the eastern portion of the District previously serviced by Ms. Doll and by him as a temporary LSR II, Ms. Chason was assigned Panama City Beach and the accounts along part of the Florida border with Georgia and Alabama, and Ms. Davis was assigned the western portion of the District. All three Routes continued to include portions of the greater Panama City area (Lynn Haven, Parker, Callaway and Springfield). The accounts on Panama City Beach were more productive during the summer months. The accounts along the Florida border also tended to be more productive. Ms. Chason was assigned these more productive accounts because she had evidenced greater skills in sales/marketing than the other LSR IIs. Not because she was white. The Routes were not totally restructured again until the January, 1992 consolidation of LSR positions. Prior to January of 1992 changes were, however, made to the Routes. These changes were made because of frequent changes in retailers participating in lottery sales and, on a few occasions, when Mr. Sumner was requested to make changes by the LSR IIs, including Mr. Jacobs. The Route assigned to Mr. Jacobs in September of 1990 was more rural than the other Routes and Mr. Jacobs was required, on average, to drive more miles than the other LSR IIs. The last relevant restructuring of Routes took place in January of 1992 after the consolidation of LSR I and II positions. At that time, the three Routes served by the LSR IIs were divided essentially in half, creating six Routes, one for each LMR. Each LSR II was allowed to select the half of the Route he or she was previously responsible for and the other half was assigned to the LSR I that had previously been assigned to the Route. Immediately prior to January of 1992, Mr. Jacobs was assisted by Ms. Silcox. When their Route was divided, Mr. Jacobs selected the half of the Route he desired and Ms. Silcox was assigned the other half. The evidence failed to prove that Mr. Sumner's evaluation of Mr. Jacobs was unfairly affected by the Route he was assigned to or that Mr. Sumner treated Mr. Jacobs unfairly in the assignment of Routes based upon his race. Sales figures contained on evaluations performed by Mr. Sumner were not always seen by Mr. Sumner when he completed an evaluation. In at least one year, those figures were added to the evaluation after Mr. Sumner completed his part of the evaluation. The suggestion that Mr. Jacobs' Route adversely impacted his evaluations was contradicted by the fact that for three years, Mr. Jacobs and Ms. Chason, who allegedly had the most favorable Route, received the same overall evaluation: "Exceeds at Least One Standard." In the first full year that Mr. Jacobs served as an LSR II, although his overall evaluation declined, the "Other Category," which included Route statistics, on Mr. Jacobs' evaluation was rated "Exceeds at Least One Standard." The suggestion that some LSRs were able to dictate their Routes was also not supported by the evidence. All of the LSRs had some input into the Routes that they handled. For example, Mr. Jacobs and Ms. Davis both requested the assignment of retailers near the Florida border. These requests were honored by Mr. Sumner. Mr. Jacobs was assigned Bascom and Malone, Florida, and Ms. Davis was assigned Campbellton, Florida. Mr. Jacobs accepted the new accounts despite the fact that the mileage he was required to travel increased. All of the LSRs were also allowed to choose between half of their prior Routes in 1992. These incidents did not prove that white LSRs were allowed to select their Routes. Sales generated in each Route had minimal impact on Mr. Sumner's evaluation of Mr. Jacobs or the other LSR's performance. No sales quotas were established and LSRs were not compensated on the basis of their sales during the period of time relevant to this proceeding. While sales had to be taken into account to some extent, performance was evaluated based upon each person's general marketing skills and efforts. Sales goals were established during the summer of 1991 by the new sales director. Each LSR was assigned a sales quota based upon a percentage increase from their last year sales figures. If an LSR failed to meet the quota, there was no consequence. Employees were commended if they did achieve their quota. LSRs were given quotas of new retailers they were to attempt to add each month. All LSR Is were given a quota of one new retailer and all LSR IIs were given a quota of two new retailers. Recruitment of retailers was not necessarily a product of the length of a Route. See Petitioner's exhibit 36. The evidence failed to prove that the Routes assigned to Mr. Jacobs adversely impacted Mr. Sumner's evaluation of his ability to recruit. Based upon the weight of the evidence, Mr. Jacobs failed to prove that the assignment of Routes was made in a discriminatory manner or that Mr. Jacobs' Routes adversely affected his performance because of difficulty caused by the Routes in meeting sales or recruitment quotas. Leave Policies. Mr. Sumner's policy concerning requests for annual leave made was that District employees should request approval at least two weeks in advance of when the employee intended to be off work. The two week notice policy was well known to all employees, including Mr. Jacobs. Mr. Sumner issued several memoranda setting out the policy. Mr. Sumner also notified employees that a telephone call was all that was necessary to take annual leave if there was an emergency. Mr. Sumner's policy concerning giving two weeks notice was not strictly adhered to or enforced. Mr. Sumner recognized there were reasonable circumstances when an employee was not able to request permission to take annual leave two weeks or more in advance. As long as an employee made a reasonable effort and the operation of District would not, in Mr. Sumner's opinion, be harmed by an employee's absence, Mr. Sumner approved leave even when two weeks notice was not given. The two week notice requirement was waived for virtually every employee, including Mr. Jacobs. On one occasion Mr. Sumner denied a request by Mr. Jacobs for annual leave. The evidence failed to prove that Mr. Sumner denied the request without just cause or based upon Mr. Jacobs' race. During the period between April of 1990 and April of 1992, Mr. Sumner approved approximately 400 hours of leave, annual and sick, for Mr. Jacobs. The evidence failed to prove that Mr. Jacobs was treated differently because of his race with regard to leave requests he made while employed by the Department. Part of the leave taken by Mr. Jacobs was attributable to the illness of his two foster care infants. Mr. Jacobs had taken time off on numerous occasions due to their poor health. Mr. Jacobs had been required to take annual leave, rather than sick leave, for the infants because the Department's personnel office had informed Mr. Sumner and Mr. Jacobs that State leave policies did not allow sick leave for foster care children. Mr. Sumner did not strictly enforce the notice policy for annual leave when Mr. Jacobs took annual leave for the foster care children. Nor did Mr. Sumner give Mr. Jacobs any reasonable reason to expect that Mr. Sumner would not approve the use of annual leave when the children were ill because Mr. Jacobs had not given two weeks advance notice. Nor was it reasonable for Mr. Jacobs to not realize that a simple telephone call to the office to inform the office of an emergency with the children would not be sufficient. Between March 17, 1992 and March 18, 1992, one of Mr. Jacobs' foster care infants became extremely ill. This was not the first time that the child had experienced the type of problem experienced at that time, but the problem was more severe. Although Mr. Jacobs could have simply telephoned the office the next morning and reported that there was an emergency, Mr. Jacobs reported to work. Mrs. Jacobs took the infant to a hospital where it was to be determined whether the child would be admitted to the hospital. After arriving at the office, Mr. Jacobs, who was visibly shaken, spoke with Mr. Sumner. What took place during that discussion was disputed by Mr. Jacobs and Mr. Sumner. Mr. Jacobs testified that Mr. Sumner was clearly informed that he wanted to go to the hospital to be with the child but was told he had to attend to his Route first. Mr. Sumner testified that Mr. Jacobs did not specifically request time off, that he had indicated he might be require to go to the hospital sometime during the day, and that Mr. Sumner told Mr. Jacobs to service his five biggest accounts scheduled for that day and then take the rest of the day off even if it was not necessary for him to go to the hospital. Shortly after the conversation between Mr. Sumner and Mr. Jacobs, and after Mr. Jacobs had left on his Route, the child died. Mr. Jacobs was informed at his first stop and he left for the hospital. Based upon the weight of the evidence, it is concluded that Mr. Jacobs, who was tired from the events of the night before and under a great deal of stress because of his concern for the child, was not denied approval of leave by Mr. Sumner to immediately go to the hospital and was not told that he had to complete his Route. At most, there appears to have been an unfortunate miscommunication between Mr. Jacobs and Mr. Sumner about the urgency of the situation. Mr. Sumner's belief that the matter was not as urgent as it turned out to be was supported by the fact that the infants had experienced similar difficulties in the past; the fact that the child had not been taken to the hospital earlier; the fact that Mr. Jacobs had come to the office that morning instead of telephoning; and the fact that Mr. Mr. Jacobs did not insist on going to the hospital immediately. Assignment of Department Vehicles. LSRs were assigned Department vehicles, (vans) for use in servicing Routes. In approximately November of 1987, the District was temporarily assigned one less van than needed. Mr. Jacobs volunteered to drive his personal vehicle, for which he was reimbursed by the State. Mr. Jacobs drove his personal vehicle until approximately December 24, 1987, when he received a new van. Other LSRs were required to use their personal vehicles on occasion, for which they were also reimbursed by the State. Pursuant to a replacement schedule instituted by the Department, 1/3 of all vans were to be replaced every year. In this way, every van would be used a maximum of three years. This schedule was based upon estimates of the time necessary for vans to have accumulated sufficient mileage (80,000 miles) to warrant replacement. To insure that a van was ready for replacement at the end of three years, it was Department policy to assign vans with lower mileage after a year or two years use to high mileage drivers. In November of 1991, five vans in the District exceeded 80,000 miles and were to be replaced with new vans. The District, however, only received three new vans. The other two vans were replaced with two lower mileage vans scheduled to be replaced the next fiscal year. Consistent with Department policy Mr. Sumner was suppose to assign the new vans to persons who drove less miles and the older vans should have been assigned to persons who drove greater miles. In November of 1991, the mileage driven in the previous year by each LSR was as follows: Silcox 16,327 miles Chason 16,426 miles Davis 21,000 miles Jacobs 23,717 miles Edwards 24,000 miles Kissinger 30,000 miles Pursuant to Department policy, the new vans should have been assigned to Ms. Silcox, Ms. Chason and Ms. Davis. The new vans, however, were assigned to Ms. Chason, Ms. Davis and Mr. Kissinger. The vans assigned to Ms. Chason and Ms. Davis were assigned consistent with Department policy. Ms. Silcox, Mr. Jacobs and Mr. Edwards were assigned older vans. The assignment of an older van to Ms. Silcox was inconsistent with Department policy. The assignment of older vans with less mileage to Mr. Jacobs and Mr. Edwards was consistent with Department policy. Had Department policy been followed completely and the third new van had been assigned to Ms. Silcox and not Mr. Kissinger, Mr. Jacobs would still not have received a new van. Mr. Sumner asked Mr. Kissinger and Mr. Edwards if they would drive to another district to pick up two vans. Mr. Sumner indicated that one of the new vans would be assigned to one of them if they agreed. They agreed, and Mr. Sumner awarded a new van to Mr. Kissinger. Mr. Sumner did not give Mr. Jacobs or Ms. Wilcox the opportunity to pick up the two vans located in another district. Marketing Promotions. LSRs, as part of their marketing responsibility, could conduct various types of promotions at retailers intended to increase sales of lottery tickets. LSRs were expected to conduct promotions. Quotas were assigned to each LSR II. They were expected to conduct one promotion per month. Promotions generally did not require much of a financial investment by the retailer and smaller retailers were generally as interested in conducting promotions as larger retailers. The evidence failed to prove that the Route assigned to Mr. Jacobs adversely affected his ability to conduct promotions. The evidence also failed to prove that Mr. Sumner's evaluations of Mr. Jacobs' performance while supervised by Mr. Sumner were adversely impacted by a lack of promotions caused by Mr. Jacobs' Route. Mr. Sumner believed that Mr. Jacobs performed a sufficient quantity of promotions but that he was slow about doing them. Conducting some promotions required overtime. Overtime, however, was required to be requested and approved in writing. Approval of overtime came from the Department and not Mr. Sumner. Mr. Jacobs was aware of this requirement. In December of 1991, Mr. Jacobs requested permission to conduct a promotion which involved the giving away of coffee mugs with the Department logo on them to each customer that bought a minimum number of lottery tickets. This promotion did not involve overtime and none was requested by Mr. Jacobs. Mr. Jacobs claimed that the promotion was changed to one that would require overtime, and that he was told by Mr. Sumner that approval would be obtained from the Department. The weight of the evidence failed to support this claim. In August of 1991, Ms. Chason sought approval to conduct a promotion at a seafood festival to be held in October of that year. The festival required overtime for two employees plus Ms. Chason. Ms. Chason asked for volunteers and accepted the first two persons. Mr. Jacobs did not volunteer and, consequently, was not one of the two persons selected by Ms. Chason. The evidence failed to prove that Mr. Sumner was involved in the failure to select Mr. Jacobs, that the failure to select Mr. Jacobs was somehow unfair or that Mr. Jacobs was not selected by Ms. Chason because of his race. Mr. Jacobs also claimed that he was not given credit for two new retailers he obtained because the forms signing up the retailers were lost. The evidence, however, proved that, although the retailers were lost as Department customers, Mr. Jacobs was given credit for signing them up by Mr. Sumner. The evidence failed to prove that Mr. Sumner was involved with the loss of the forms signing up the retailers or that they were lost to cause Mr. Jacobs to fail to meet his quota for new retailers. The evidence failed to prove that Mr. Sumner or the Department awarded bonuses or that Mr. Jacobs was denied bonuses because of his race. Miscellaneous Charges. The evidence failed to prove that Mr. Jacobs was denied training provided to white employees because of his race. The evidence failed to prove that Mr. Jacobs was denied the use of new equipment provided to white employees because of his race. Mr. Jacobs' Charge of Discrimination. Mr. Jacobs filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Mr. Jacbos alleged that he had been discriminated against based upon his race. On March 29, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Mr. Jacobs filed a Petition for Relief with the Commission requesting a formal administrative hearing. In the Petition for Relief filed with the Commission Mr. Jacobs alleged, in response to questions 3, 4 and 5 on the Petition for Relief, the following: Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below: My supervisor, Steve Sumner has systematically and intentionally denied me equal opportunities because of my race (black) for training, compensation, use of new equipment, time off from work, leave and retention and advancement in my position as an LSR. See the attached charge of discrimination incorporated herein. The disputed issues of material fact, if any, are as listed below: Mr. Sumner allowed every other LSR (all who are white) to pick their own routes which were the best routes, leaving the most difficult to me. He has also allowed other LSR's to work for bonuses during promotions but has not allowed me to do so. Mr. Sumner has misplaced some new applications for lottery retailers that I obtained so that my quotas of achievement would be lower. Mr. Sumner retained a coworker in the LSR position when he had been promoted to LSR long after me. Mr. Sumner denied my taking leave when one of my foster children was critically ill and the child died while I was at work. The ultimate facts alleged and entitlement to relief are as listed below: I wish to have a formal post-investigative proceeding. I wish to be reinstated in my LSR position with seniority back to the date of my demotion or receive adequate compensation for the harms I have suffered and reasonable attorneys fees and costs. I am a member of a protected class and Mr. Sumner has singled me out for arbitrary and negative treatment based on my race (black). All the responses Mr. Sumner has provided are pretextual or simply not true. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Mr. Jacobs. At the commencement of the proceeding, Mr. Jacobs indicated that he was seeking a "general injunction", an apology from the Department, monetary compensation for damages in the form of payment for pain and suffering, attorney fees and reinstatement as an LSR II. Alleged Race Discrimination. The evidence in this case failed to prove that any action of Mr. Sumner or the Department was based upon Mr. Jacobs' race. He was not held to any standard or requirement based upon his race and he was not treated in a manner different from the treatment afforded employees of other races. The evidence proved that Mr. Sumner had hired Mr. Jacobs, that Mr. Sumner had given him high evaluations for the first three years he worked, he had temporarily promoted Mr. Jacobs to a higher position with a temporary increase in pay not afforded white employees, he had promoted him with a permanent increase in pay which made Mr. Jacobs the highest paid employee in his class at the District, and he had assisted Mr. Jacobs in insuring that he was qualified for the promotion. Only after Mr. Jacobs' performance began to decline did Mr. Sumner take actions which were somewhat adverse to Mr. Jacobs. Those actions did not take place until after three years of working together. The reasons for taking those actions were reasonably explained by Mr. Sumner and the Department. Mr. Jacobs was unable to explain the foundation for his belief that Mr. Sumner began treating him differently in 1991 on the basis of his race.
The Issue At issue in this proceeding is whether petitioner's lottery prize is subject to an outstanding debt to any state agency or owing child support collected through a court.
Findings Of Fact On June 16, 1993, petitioner submitted a claim to the Department of Lottery (Lottery) on a Black Jack Instant Ticket she held. Such ticket reflected that petitioner was eligible for a prize of $1,000.00. On June 17, 1993, the Department of Health and Rehabilitative Services (DHRS) certified to the Lottery that petitioner owed $1,224.00 in Aid to Families with Dependent Children benefit overpayments and $675.00 in Food Stamp benefit overpayments, for a total of $1,899.00. Thereafter, pursuant to Section 24.115(4), Florida Statutes, the Lottery transmitted the prize amount to the Department of Banking and Finance (DBF). By letter of June 28, 1993, DBF notified petitioner that it was in receipt of her prize from the Lottery and that it intended to apply the entire $1,000.00 toward the unpaid claim owing DHRS. Such letter, likewise, advised petitioner of her right to request a hearing to contest such action. By letter of July 13, 1993, petitioner requested a formal hearing to contest DBF's action, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. At hearing, the proof demonstrated that the only state warrants actually negotiated by petitioner, which represented an overpayment of benefits for Aid to Families with Dependent Children, totalled $612.00. All other state warrants which had been issued to petitioner, and upon which DHRS had initially calculated the debt owing to it from petitioner for overpayments of Aid to Families with Dependent Children and Food Stamp benefits, had been returned, unnegotiated, to the state. Accordingly, the total debt shown to be owing DHRS by petitioner was $612.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Banking and Finance enter a final order applying $612.00 of petitioner's lottery prize of $1,000.00 to satisfy the debt owing DHRS, and remit the balance of $388.00 to petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of October 1993. COPIES FURNISHED: Debra J. Ihasz 1529 61st Trail South West Palm Beach, Florida 33415 WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October 1993. Scott C. Wright Assistant General Counsel Office of the Comptroller Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Katrina M. Saggio Department of Health and Rehabilitative Services 1335 23 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Louisa Warren Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 The Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
The Issue The issue is whether the word, "internal," in Florida Administrative Code Rule 61D-14.041(1) is an invalid exercise of delegated legislative authority because Respondent exceeded its grant of rulemaking authority or because this word enlarges, modifies, or contravenes the law implemented, in violation of sections 120.56(3) and 120.52(8)(b) and (c). In sum, Petitioner and Intervenor challenge rule 61D-14.041(1) only to the extent that this rule requires that each slot machine contain an internal random number generator.
Findings Of Fact Background On March 12, 1991, the Department of Lottery (Department) issued Request for Proposal No. 91-007-LOT/TEN/P entitled "Request for Proposal for the Provision of Advertising and Related Services to the Florida Lottery" (hereafter "the RFP"). The deadline for submitting sealed proposals in response to the RFP was established as April 22, 1991, but extended to April 29, 1991, by Amendment 3 to the RFP. At the time of the deadline, ten proposals had been filed, including those of petitioner, Bozell, Inc. (Bozell), and intervenors, Earle Palmer Brown (EPB) and BBDO South (BBDO). By "Notice of Selection of Finalists," dated May 1, 1991, and posted at the Department's headquarters, the Department advised all bidders that: After review of written proposals submitted in response to the subject RFP, the Florida Department of the Lottery's Evaluation Committee has ranked the responsive proposals in the following order of preference: Ogilvy & Mather Earle Palmer Brown BBDO South Bozell W.B. Doner Fahlgren Martin Benito West & Company Beber Silverstein LMPM The Ad Team In accordance with Section 5.3 of the RFP, the Department intends to conduct oral presentations with the following firms for the purpose of determining final rankings: Ogilvy & Mather Earle Palmer Brown BBDO South Bozell W.B. Doner Pursuant to Florida Statute and Rule 53ER87-16, failure to file a formal written protest and the bond required by Section 287.042(2)(c), Fla. Stat., with the Secretary within 72 hours shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Here, there was no showing that any protest was timely filed to contest the Department's selection of the five finalists. The five finalists made oral presentations to the evaluation committee on May 7 and 8, 1991, and their cost proposals were opened and scored on May 8, 1991. At the conclusion of its work, the committee awarded EPB an average total score of 174.550 and Bozell an average total score of 171.150; 200 points was the maximum total possible. By notice dated Wednesday, May 8, 1991, at 8:07 p.m., the Department issued its "Notice of Intent to Negotiate a Contract" ranking the top five firms in the following order of preference: (1) EPB, (2) Bozell, (3) Ogilvy & Mather; BBDO; and (5) W.B. Doner. Bozell filed its formal written protest and petition for formal administrative hearing with the Department of Monday, May 13, 1991, at 4:29 p.m. The Request for Proposals The RFP consists of the original RFP issued by the Department, three amendments, and the Department's response to various written questions submitted by potential bidders. Pertinent to this case, the RFP provided: SECTION 1: GENERAL INFORMATION Introduction. This Request for Proposal ("RFP") has been issued by the Florida Department of Lottery ("Lottery") to obtain sealed proposals from qualified firms for the provision of advertising and related services to the Florida Lottery. This RFP, and all other activities leading toward the execution of a contract per this RFP, are conducted under the Lottery policies set forth in Rules 53ER87-10 through 53ER87-19, Florida Administrative Code, and Chapter 24, Fla. Stat. The Lottery considers it in the best interest of the State of Florida to procure the commodities/services described herein through a competitive process. All responding firms should read and be familiar with the Florida Public Education Lottery Act [Chapter 24, Fla. Stat.] to ascertain an understanding of the purposes and requirements placed on the Lottery. A copy of Chapter 24, Fla. Stat., is attached to this RFP. This proposed purchase is a Major Procurement as defined in Section 24.103, Fla. Stat. (1989). Glossary of Terms. * * * Responsive Proposal - Refers to a proposal which contains, in the manner required by this RFP, all documentation, drawings, information, plans, materials, certifications and affirmations, regardless of which section of the RFP sets forth the particular requirements. * * * Questions About This RFP. * * * If revisions to this RFP are necessary after the closing date for submitting proposals, the revisions will be provided to only those Respondents who have submitted Responsive Proposals and have met the basic requirements of this RFP. Such Respondents will then have the opportunity to modify their proposals in conformance with the revisions. Timetable The following timetable will be strictly adhered to in all actions relative to this procurement. * * * All proposals will be opened by Lottery employees at 2:00 p.m. on April 22, 1991 [extended to April 29, 1991, by Amendment 3] in the Purchasing Office at the aforesaid Lottery Headquarters. The public may attend the opening but may not review any proposals submitted. The evaluation process will begin immediately following the proposal opening. The Evaluation Committee will rank the proposals in order of preference based on the evaluation of the technical proposals in accordance with the criteria specified herein. Notice of selection of finalists shall be posted at the Lottery's headquarters. If more than five Responsive Proposals are submitted, at least the five top firms which have submitted Responsive Proposals will be selected for oral presentations to be made in Tallahassee, Florida, at the Lottery's Headquarters. Oral presentations are tentatively scheduled for the week of April 29, 1991 [extended to the week of May 6, 1991, by Amendment 3] . . . . The Evaluation Committee will score the oral presentations and then open and score the cost proposal. The final rankings will be determined based on the evaluation of the technical proposals, oral presentations and cost proposals. Notice of Intent to negotiate with the highest ranked firm will be posted at the Lottery's headquarters. If negotiations with the highest ranked firm are not successful, the Lottery may negotiate with the other listed firms in descending order of rank. Upon successful conclusion of negotiations with a Respondent, a Notice of Award of Contract will be posted at the Lottery's headquarters. * * * 1.12. Proposal Submission. It is the Respondent's responsibility to ensure that its proposal is delivered by the proper time at the place of the proposal opening.... * * * 1.14 Correction or Withdrawal of Proposal. A correction to, or withdrawal of, a proposal may be requested within 72 hours after the proposal opening time and date. Requests received in accordance with this provision may be granted by the Lottery upon proof of the impossibility to perform based upon an obvious error. The Lottery, in its sole discretion, will determine whether a bid may be corrected or withdrawn. Interpretations/Disputes. Any questions concerning conditions and specifications of this RFP shall be directed in writing to the Issuing Officer in the manner provided in Sections 1.8 and 1.9 of this RFP. Inquiries must reference the bid number and the date of proposal opening. No interpretation shall be considered binding unless provided in writing by the Lottery. Any prospective Respondent who disputes the reasonableness or appropriateness of the terms, conditions, and specifications of this RFP shall file a formal written protest in appropriate form within 72 hours of the availability of answers to questions as provided in Section 1.9 of this RFP. Any Respondent who disputes the Lottery's Notice of Selection of Finalists, Notice of Intent to Negotiate, or Notice of Award of Contract, shall file a formal written protest in appropriate form within 72 hours of the notices. Any person who files a formal written protest shall, at the time of filing the formal written protest, post a bond as set forth in Section 287.042(2)(c), Fla. Stat. Failure to file both a protest and bond within the time prescribed in Rule No. 53ER87-16, Florida Administrative Code, shall constitute a waiver of proceedings under Chapter 120, Fla. Stat. Legal Requirements. Applicable provisions of all federal, state, county, and local laws and administrative procedures, regulations, or rules shall govern the development, submittal and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes which may arise between persons submitting a proposal hereto and the Lottery. Lack of knowledge of the law or applicable administrative procedures, regulations or rules by any Respondent shall not constitute a cognizable defense against their effect. * * * Purpose and Overview. A. In accordance with Chapter 24, Fla. Stat., the Florida Department of the Lottery has been charged with the responsibility "to operate the state lottery . . . so as to maximize revenues in a manner consonant with the dignity of the state and the welfare of its citizens." The Contractor will support the Lottery in its mission by providing the advertising services set forth in Section 2.2. The goal of these services is to maximize the sale of tickets, enhance the public image and visibility of the Lottery, and assist in communicating the intent that Lottery proceeds enhance education . . . . Scope of Services. The Contractor shall be the principal advisor and provider to the Lottery for the following advertising and services: Development of strategic advertising plan; Creative strategy, creation and production of all advertising (including television, radio, print, transit and outdoor); Placement of all print, radio, television, transit and outdoor advertising at the lowest competitive rate; Coordination of and contracting for televised broadcasts of lottery drawings; Ticket design; Creation and production of point-of- sales material; Media plans; Educational, promotional and other related activities as directed. The Technical Proposal. The objective of the technical proposal is to demonstrate the Respondent's understanding and proposed method of rendering the requested services. Each Respondent shall provide a written statement of the firm's understanding of the services requested herein as well as a detailed written plan outlining how the firm proposes to go about providing the services set forth in Section 2.2. At a minimum, the technical proposal shall consist of the following information and materials: * * * E. Firm Qualifications. At a minimum, each Respondent must provide the following information which demonstrates the Respondent's ability to provide the services requested: * * * 4. Resumes not to exceed one page each in length of all personnel who would be assigned major roles in the fulfillment of the work obligation outlined in Section 2.2, with a statement identifying the percentage of time, calculated annually, of each person who will work on the Lottery account. * * * 12. Certified financial statements in customary form for the last three (3) fiscal years including an auditor's report. Certified financial statements must be the result of an audit of the Respondent's records in accordance with generally accepted auditing standards by a certified public accountant . . . . * * * 18. List of type and number of additional employees that may be needed if awarded contract. * * * 33. Disclosure information required by and listed in Section 24.111, Fla. Stat. * * * Section 3: INFORMATION REQUIRED FROM RESPONDENT 3.1. GENERAL INSTRUCTIONS. * * * D. Technical proposals must include the following information, be limited to not more than 100 pages (not including cover sheet, table of contents, divider pages, creative materials or resumes) and be presented in the following sequence: * * * Vendor Information Form (Attachment B). * * * Performance bond commitment letter required by Section 6.6. All material or information required to be submitted as part of the technical proposal required by Section 2.3. * * * 13. Any other material or information required by this RFP. * * * 3.4 Use of Subcontractors. If a Respondent proposes to use one or more subcontractors, the proposal must identify the contemplated subcontractor(s) and the scope of the subcontractor's services, and must include evidence of each subcontractor's ability to fulfill its respective duties on behalf of the Respondent. Respondent must also provide the information required by Section 24.111(2), Fla. Stat., for each subcontractor as if the subcontractor were itself a vendor. * * * 3.6 Additional Information and Comments. Respondent shall not submit with their written proposals material beyond that which is covered in the 100-page technical proposal (not including cover sheet, table of contents, divider pages, creative materials or resumes), plus creative comps and samples, resumes of key personnel and the separate cost proposals. The Lottery reserves the right to request additional information from a Respondent in order to make a thorough review and fair comparison of all proposals submitted.... Section 4: MANDATORY REQUIREMENTS Terms. The Lottery has established certain mandatory requirements which must be included as part of any proposal. The use of the terms "shall," "must" or "will" (except to indicate simple futurity) in this RFP indicate a mandatory requirement or condition. The words "should" or "may" in this RFP indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature will not by itself cause rejection of a proposal. 4.2 Non-responsive Proposals. Proposals which do not meet all material requirements of the RFP or which fail to provide all required information, documents, or materials will be rejected as non- responsive. Material requirements of the RFP are those set forth in Section 3.1 and without which an adequate analysis and comparison of proposals is impossible. The Lottery reserves the right to determine which proposals meet the material requirements of the RFP and to accept proposals which deviate from the requirements of the RFP in a minor or technical fashion as determined by the Lottery. SECTION 5: PROPOSAL REVIEW AND CRITERIA FOR SELECTION 5.1. Proposal Submission. Only proposals submitted in the time frame stated herein and with the content required above will be reviewed and considered by the Lottery. A copy of Chapter 24, Florida Statutes, was attached to the RFP, and Section 24.111, Florida Statutes, was specifically referenced in Sections 2.3.E.33 and 3.4 of the RFP. The vendor information form itself referenced the requirements of Section 24.111(2), Florida Statutes. In accordance with RFP Section 1.8, EPB submitted the following question, among others, to the Department: "Does Attachment B [Vendor Information Form] need to be completed by all company officers?" The Department answered "Yes, see question #8, BBDO Atlanta, letter dated March 26, 1991." The referenced answer to BBDO Atlanta emphasized that "a vendor information form must be completed by each person listed in the instructions on the form [all officers, all directors, all owners, all partners, all trustees, all stockholders holding five percent or more, executive director and chairman of the board]." Even section 1.27 of the RFP required that vendor information forms be submitted to the Department prior to or at the time of submitting the proposal. Responsiveness of proposals Under the terms of the RFP, Sections 5.1 and 5.2, the Department was not to consider and evaluate non-responsive proposals. Non-responsive proposals are defined by Section 4.2 of the RFP as follows: Proposals which do not meet all material requirements of this RFP or which fail to provide all required information, documents, or materials will be rejected as non- responsive. Material requirements of the RFP are those set forth in Section 3.1 and without which an adequate analysis and comparison of proposals is impossible. The Lottery reserves the right to determine which proposals meet the material requirements of the RFP and to accept proposals which deviate from the requirements of the RFP in a minor or technical fashion as determined by the Lottery. At the time it submitted its proposal, EPB did not submit the vendor information forms required by subsections 2.3E33, 3.1 and 3.4 of the RFP and by Section 24.111(2), Florida Statutes, for at least three of its corporate officers or directors (Sally Brown, Louise Smoak, and Robert Morse), and did not submit any vendor information forms for its designated subcontractor, Premier Maldonado & Associates. The Department, through its counsel, first requested submission of these forms from EPB on May 8, 1991, the date on which the Notice of Intent to Negotiate was posted. EPB did not supply the missing forms for Premier Maldonado & Associates until May 14, 1991, and for the three corporate officers or directors until on or about May 29, 1991. The RFP required that the vendor information forms be submitted with the proposal, and Section 24.111(2), Florida Statutes, provided in mandatory language that: The Department shall investigate the financial responsibility, security, and integrity of any person who submits a bid proposal or offer as part of a major procurement. Any person who submits a bid proposal or offer as part of a major procurement must, at the time of submitting such bid proposal or offer, provide the following: A disclosure of the vendor's name and address and, as applicable, the name and address of the following: If the vendor is a corporation, the officers, directors, and each stockholder in such corporation, except that in the case of owners of equity securities of a publicly traded corporation, only the names and addresses of those known to the corporation to own beneficially 5 percent or more of such securities need be disclosed. If the vendor is a trust, the trustee and all persons entitled to receive income or benefit from the trust. If the vendor is an association, the members, officers, and directors. If the vendor is a partnership or joint venture, all of the general partners, limited partners, or joint ventures. If the vendor subcontracts any substantial portion of the work to be preformed to a subcontractor, the vendor shall disclose all of the information required by this paragraph to the subcontractor as if the subcontractor were itself a vendor. (Emphasis added) The Department, at hearing offered proof that it did not consider the language of the RFP or Section 24.111(2), Florida Statutes, to require that all such forms be submitted at the time the proposal is submitted, and that it had been the Department's policy to allow bidders to submit additional forms after bid submission. The articulated rationale for such policy is that based solely on the proposals or, stated differently, absent investigation, the Department is unable to assure itself that forms for all required individuals are submitted with any proposal. Accordingly, the Department considers the omission of such forms a technical deficiency that can be cured up to the point of contracting, and limits its investigation to the successful bidder. While the Department may find it difficult, absent investigation, to assure itself that the vendor information mandated by section 24.111(2) is submitted with the proposal, the mandate of section 24.111(2) and the RFP is clear and unequivocal: such information "must" be submitted with the proposal. Notably, under the provisions of the statute and RFP, the onus is on the bidder, the party privy to such information, to assure that its disclosure is complete and where, as here, its disclosure is not complete its bid is non-responsive, since it is at variance with the mandate of section 24.111(2) and the RFP. Importantly, under the requirements of section 24.111(2), the Department is precluded from contracting with any bidder who fails to submit the required vendor information. Accordingly, a successful bidder who, wittingly or unwittingly, failed to make the required disclosure (such as EPB in the instant case) could subsequently decline to provide the Department with the information and thereby effectively withdraw its bid, contrary to the provisions of section 1.14 of the RFP. Such renders the failure to submit the required information at the time of bid submittal a material defect, since it accords such bidder an advantage not enjoyed by other bidders that submitted the required information. In accordance with subsection 3.1D9 of the RFP, each bidder was required to submit with its technical proposal the performance bond commitment letter required by section 6.6 of the RFP. Section 6.6, as amended by Amendments 1 and 3, provided, in pertinent part: The successful Respondent shall be required, at the time of executing the Contract with the Lottery, to post an appropriate performance bond or other security acceptable to the Lottery in the amount of $2.5 million . . . The other acceptable forms of security are: irrevocable letter of credit; Certificate of Deposit assigned to the Lottery (which must be obtained from a financial institution having its principal place of business in the State of Florida) . . . . Respondents must submit with their proposal evidence that they will be able to provide the performance bond or other security. Such evidence may include, but is not limited to, a letter from an authorized agent of a bonding company committing to provide the performance bond or indicating that the bond underwriter is processing a request to provide the bond and stating unequivocally that the bond will be available upon execution of the Contract. At the time it submitted its proposal, EPB submitted an April 25, 1991, letter addressed to it from Sovran Bank as evidence of its ability to provide the required security. That letter provided: As follow up to our conversation yesterday, the company can restrict its revolving line of credit by $2,500,000 (Two Million Five Hundred Thousand Dollars) for a Letter of Credit of the same amount. The alternative is to apply for the Letter of Credit as a separate facility. The particular terms and conditions of the Letter of Credit would be worked out at the time of application . . . . While of the opinion that the Sovran letter evidenced EPB's ability to provide the required security, the Department likewise felt that the letter failed to evidence any commitment on EPB's part to restrict its line of credit to secure the subject letter of credit. Accordingly, it requested additional information from EPB, and by letter of May 1, 1991, EPB responded: This is to clarify the language in the Sovran Bank letter of April 25, 1991, included as Page 9 in Earle Palmer Brown's Proposal . . . Should Earle Palmer Brown be a successful respondent we will, at the time of executing the contract with the Lottery, either restrict our revolving line of credit with Sovran Bank by $2,500,000.00 for an irrevocable letter of credit, or will provide the Lottery with a surety bond for a like amount. The letter of May 1, 1991, adds more confusion than enlightenment regarding EPB's commitment to provide a letter of credit. Clearly, under the provisions of subsection 6.6 of the RFP, EPB's bare assurance that it would, alternatively, provide the Department with a surety bond was not acceptable evidence of its ability to provide such bond. As importantly, by phrasing its proposal as an alternative, to be exercised at its discretion, EPB lent confusion to the issue of what form of security it would provide. Notwithstanding, the requirement of the RFP was that the bidders "submit with their proposals evidence that they will be able to provide the . . . security," and the letter of April 25, 1991, while perhaps sparse, is facially adequate in that regard. Notably, the proof in this case confirms that EPB does have an adequate credit line with Sovran Bank which could be so restricted for a $2.5 million irrevocable letter of credit. In accordance with section 2.3E12 of the RFP, each bidder was required to submit with its technical proposal "certified financial statements in customary form for the last three (3) fiscal years including an auditor's report." In response to a question submitted pursuant to section 1.8 of the RFP, which asked: "If a company does not have certified financial statements for the last three years as required by Section 2.3.E.12 of the RFP, will it be disqualified from submitting a proposal?", the Department answered: "No. Although the absence of certified financial statements would render the proposal nonresponsive." At the time EPB submitted its proposal, it submitted certified financial statements for fiscal years 1986, 1987, 1988 and 1989. As EPB's fiscal year is the calendar year, its auditors had not yet completed their audit for fiscal 1990 by the response deadline. When EPB's certified financial statement for its fiscal 1990 became available on May 14, 1991, it promptly delivered a copy to the Department. While the RFP required financial statements for the last three fiscal years, the Department understood that a bidder's ability to provide such statements would depend on when its fiscal year closed. In this regard, it is common for an independent audit to require up to six months following the close of a fiscal year. Here, EPB was faced with exactly such a dilemma, specifically disclosed such dilemma in its proposal, and provided the financial statements for the last four fiscal years that were available to it. Under such circumstances, it cannot be concluded that the Department departed from the essential requirements of law when it declined to declare EPB's proposal non- responsive for its failure to include a certified financial statement for fiscal 1990, and accepted, as satisfying the requirements of the RFP, financial statements for the last three fiscal years that were reasonably available to EPB. In accordance with the RFP, each bidder was to identify all personnel who would be assigned major roles in the fulfillment of work under the contract. Pertinent to this case, subsection 2.3E provided: At a minimum, each Respondent must provide the following information which demonstrates the Respondent's ability to provide the services requested: * * * 4. Resumes not to exceed one page each in length of all personnel who would be assigned major roles in the fulfillment of the work obligation outlined in Section 2.2, with a statement identifying the percentage of time, calculated annually, of each person who will work on the Lottery account. * * * 18. List of type and number of additional employees that may be needed if awarded contract. At the time EPB submitted its proposal, it identified twenty-four key positions in account service, creative, media and several other categories. As to the management supervisor, the employee is identified as "selected," and as to an account executive and public relations supervisor, the employee is identified as "TBD" (To Be Determined). All other positions were identified with specific individuals and resumes were included for each. Here, Bozell contends that EPB's proposal is non-responsive because EPB did not name and include resumes for the foregoing three positions. Such contention is, however, unpersuasive. Section 2.3E18 clearly contemplated that some bidders would have to hire additional personnel if awarded the contract, and EPB complied with that section of the EPB by identifying such positions. Accordingly, EPB's proposal was not at material variance from the RFP in this regard. Although the Department's "Notice of Selection of Finalists," dated May 1, 1991, discussed supra, purported to rank the "responsive proposals" in order of preference, the proof demonstrates that the evaluation committee, who was charged with such responsibility, did not, by consensus or otherwise, ever determine the responsiveness of any proposal. Here, for the reasons heretofore set forth, EPB's proposal was non-responsive to the RFP, and the committee's failure to address the issue of responsiveness prior to scoring the proposals, for reasons discussed infra, materially affected the fairness of the evaluation process. Bozell's proposal was, however, responsive to the RFP. 2/ The evaluation committee Pursuant to Rule 53ER87-13(5)(i)(2), Florida Administrative Code, and Section 5.3 of the RFP, the Secretary of the Department appointed an evaluation committee, consisting of six members, to evaluate the proposals which were received from interested firms. Regarding the composition of such committee, the Department advised all prospective bidders, in response to a question posed pursuant to Section 1.8 of the RFP, that: The Evaluation Committee will be comprised of Lottery staff and volunteers from a cross- section of Florida business and academic communities. Subsequently, by notice of April 16, 1991, the Department advised all prospective bidders that the members of the evaluation committee would be as follows: Bernard Edwards Deputy Secretary Marketing Department of the Lottery Tallahassee, Florida Ben Johnson Newspaper Columnist Homles Beach, Florida Robert W. McKnight Assistant Secretary Department of Lottery Tallahassee, Florida Richard Mizerski Professor Tallahassee, Florida John Ruchalski Retired Businessman Jupiter, Florida Alan Sawyer Professor Gainesville, Florida Of the six committee members, only two, Bernard Edwards and Robert W. McKnight, were employees of the Department. No objection to the composition of the committee was lodged until the filing of the subject protest; however, there was likewise no point of entry provided by the Department to challenge the composition of the committee. Robert W. McKnight, who chaired the committee, has been employed by the Department as Assistant Secretary since March 4, 1991, and in such capacity has been responsible for the day-to-day operations of the Department. Mr. McKnight holds a B.S. and M.B.A. degree in business administration, with concentrations in advertising, and has in excess of fifteen years experience in marketing. Throughout the course of such employments, as well as his tenure as a Florida legislator, he has had the opportunity to monitor or supervise the work of advertising agencies employed to advance his products or person. Bernard Edwards, currently Deputy Secretary for Marketing of the Department, has been with the Department since 1988. During that tenure, he has filled, at various times, all three deputy secretary positions (operations, administration and marketing), and has participated in the advertising operations of the Florida lottery. Prior to his employment with the Department, Mr. Edwards was Executive Director of the Washington, D.C., lottery, and from 1983 to 1987 Deputy Executive Director of the Pennsylvania State lottery. During the course of such employments, Mr. Edwards has acquired significant experience in the marketing of lottery products, and the advertising incident thereto. Alan Sawyer is a Professor of Marketing and Chairman of the Department of Marketing of the University of Florida in Gainesville, and holds a Ph.D. from Stanford University in marketing. In addition to his teaching and research, Dr. Sawyer has worked with the Federal Trade Commission, as well as numerous other clients, on advertising matters, including matters of advertising deception, and is a recognized expert in advertising and marketing. Ben Johnson is a Doctoral Teaching Associate and Adjunct Professor at the University of South Florida where he teaches upper division and graduate College of Education courses in methods of teaching English, reading, and learning skills. In addition to teaching, Mr. Johnson has, for some years, been researching the lottery operations of various states. As a consequence of the knowledge he has gained concerning those operations he has written a book, The Lottery Book, scheduled for publication in September 1991, which provides general information for players of various state lotteries, and has a nationally syndicated newspaper column called "The Lottery Column" wherein he answers readers' questions regarding lottery operations. From such experience, Mr. Johnson has developed a knowledge of lottery operations, as well as an appreciation for effective lottery marketing and advertising. John Ruchalski, currently retired, holds a degree in business and marketing, and has 35 years of retail management experience. Of those years, 17 were spent as Senior Vice President of Burdines, three as Chief Executive Officer of Bullock's, and two as president of Bloomingdale's. Mr. Ruchalski's past activities have also included service as president of the Florida Chamber of Commerce and chairman of the board of the Florida Retail Federation. In all, the proof shows that Mr. Ruchalski has a strong marketing background, and a familiarity with the advertising needs incident to such operations. The final member of the committee, Richard Mizerski, is a Professor of Marketing at Florida State University, and holds a Ph.D. from the University of Florida in Economics and Business Administration, with a major concentration in marketing and a minor concentration in advertising. Dr. Mizerski, like Dr. Sawyer, has, in addition to his teaching and research, extensive consulting experience in marketing and advertising, and is a recognized expert in the field. Overall, the proof demonstrates that the composition of the evaluation committee was appropriate for the work it was tasked to do, and that it had adequate time to perform an appropriate evaluation. Each committee member had experience and knowledge in marketing, and advertizing incident thereto, and lent to the evaluation process common and diverse experiences in such areas which helped provide a balanced consideration of the proposals. As importantly, each was shown to be committed to the integrity of the process, and complied with the provisions of Section 286.011, Florida Statutes, by assuring that all committee meetings at which official acts were to be taken were conducted publicly, and by not discussing any matter pertaining to their evaluations with any other member except during meetings that had been properly noticed. Market research data Prior to reviewing the proposals, one or more of the committee members requested information from the Department that would accord them insight into the program area. In response to such request, the Department provided each committee member with the market research data it had available. Such data provided demographic insight into Florida lottery marketing operations. At hearing, Bozell complained that it was never informed that the market research data had been provided to the committee, and offered proof, if credited, that had it known such fact it would have drafted its proposal differently. Such proof was not, however, persuasive, nor was the provision of such information to the committee inappropriate. Here, the proof demonstrates that the data provided by the Department was a matter of public record, and many of the committee members, through their research and training, were already familiar with it prior to their appointment. Bozell, as the current provider of advertising services to the lottery, was very familiar with the data, its subcontractor had complied it, and Bozell used it extensively in its proposal. In sum, Bozell was not disadvantaged by the provision of such data to the committee, and it was not treated any differently than any other bidder in this regard. As importantly, the provision of such information to the committee to lend insight into the program area for which services were being sought was quite appropriate to the evaluation process. Technical proposed evaluation Section 2.3 of the RFP describes the items required to be submitted with a firm's technical proposal, and was designed to assess a firm's understanding and proposed method of rendering the services requested by section 2.2 of the RFP. It provides that, "at a minimum," the proposal shall contain the information and materials requested by subsections 2.3A through 2.3E. Subsection 2.3A required submittal of a proposed advertising approach for the Florida lottery which addresses a three-year summary outline advertising plan, to include recommendations for advertising and promotion, and a proposed one-year timetable for advertising, showing development of creative, production, approval, placement and run-time. Subsection 2.3B required comprehensive artistic representations consisting of a detailed media plan for an eight-week Florida lottery instant game within a $1,250,000 budget; a name, ticket design and prize structure for the instant game; a 30-second radio spot for the instant game; a print ad for newspaper or magazine placement for the game; and a point- of-sale example for the game. Subsection 2.3C required one complete advertising campaign representative of the firm's work, including budget, creative strategy, positioning, media strategy and execution, and post-buy analysis. Subsection 2.3D required creative samples previously produced by key members of the proposed creative team consisting of TV ads, radio ads, print ads, outdoor campaigns, and point-of-sale samples. Finally, subsection 2.3E, entitled "firm qualifications," required, "at a minimum," information concerning 33 specific items, "which demonstrates the [firm's] ability to provide the services requested." Among the items for which information was required were the following: 3. Brief and concise statement of Respondent's advertising philosophy, taking into consideration the following points and others that you may feel are appropriate: Method the Respondent uses for developing advertising. How the Respondent currently measures the effectiveness of its advertising. * * * Evidence of any work done for a state, multi-state, national or provincial lottery. Information regarding any advertising or other experience with state agencies and other governmental entities. * * * 12. Certified financial statements in customary form for the last three (3) fiscal years including an auditor's report . . . . * * * 29. Discussion of contributions that your firm could make toward the growth of the Lottery. Section 5.4 of the RFP set forth the general criteria by which a firm's response to subsections 2.3A-E would be evaluated. Such general criteria were the overall qualifications, experience and abilities of the firm, its staff, and contractors to provide timely and professional advertising and related services, determined by evaluating the information contained in subsection 2.3E; and, the relative creativity, approach, quality and thoroughness of the firm's proposed plans directed toward subsections 2.3A-D of the RFP. Such section concluded: "The evaluation worksheet for the technical proposal is attached as Attachment F." Attachment F to the RFP set forth the specific criteria by which a firm's response would be evaluated. That attachment provided as follows: This evaluation considers information submitted in the technical proposal. Emphasis is placed on the firm's qualifications and ability to do the work, which is addressed in the Technical Proposal. A total of 80 points is obtainable. The Technical Proposal shall be evaluated in accordance with the following criteria: Overall Ability - 40 points maximum Do the resumes of the account team support the Respondent's competency to provide the services required by Section 2.2? Proposed Account Team: Is the team make-up appropriate for the work? Do the team members have experience with comparable work? Are there any sub-contracted firms involved? Are minority sub-contractors utilized? Are the hours assigned to the various team members for each task appropriate? Has the Respondent provided advertising services of the scope required in the past? Experience of the Respondent and staff providing advertising service within the State of Florida. Experience of the Respondent and staff in providing Lottery, pari- mutuel, or other gaming related advertising. Financial stability of the firm and financial capability to provide the entire scope of services. Experience of the firm in providing advertising services to accounts in excess of $10 million. Experience of the firm in placing large volumes of electronic media in all media markets in Florida. Based on 1-3, award points, as follows: 20-30 points for exceptional experience 10-20 points for average experience 0-10 points for minimal experience Has the Respondent provided advertising services to other state or governmental entities? If the work was acceptable, award up to 3 points. If the firm has not done such work, award zero points. Does the Respondent possess unique abilities which would make a noticeable (positive) impact on the project? If the answer is yes, award up to points and note reasons. If the answer is no, award zero points. Does the team composition and each member's percentage of involvement, the use of subcontractors (if any), office location, and/or information contained in the proposal indicate that the Respondent will meet time and budget requirements? If the answer is yes, award up to points and note reasons. If the answer is no, award zero points. Does the Respondent's current workload make it likely the Respondent can provide timely and complete service? If the answer is yes, award up to 2 points and note reasons. If the answer is no, award zero points. Advertising approach and creative samples required by Sections 2.3A-D = 40 points The relative creativity, approach, quality and thoroughness of the firm's proposed plan for providing the requested services required by Section 2.3(A). Value: 10 points The relative creativity, approach, quality and thoroughness of the comprehensive artistic representations required by Section 2.3(B). Value: 10 points The relative creativity, approach, quality and thoroughness of the advertising campaign required by Section 2.3(C). Value: 5 points The relative creativity, approach, quality and thoroughness of samples required by Section 2.3(D). Value: 15 points The criteria for evaluating the creativity, approach, quality and thoroughness of above items B-1 through B-4 are as follows: Creativity Were the ideas and approach exciting and interesting? Did the samples evoke positive and appropriate emotions? Did the samples capture and hold attention? Did the samples demonstrate fresh and original thought or were they banal and mundane? Approach Was the approach germane and appropriate? Was the approach unified and integrated? Was the approach clear, direct and unambiguous? Quality Were images crisp, sharp, and distinct except where the intention is clearly otherwise? Was the production professional? Was sound free of distortion and visual free of unnecessary clutter? Thoroughness Did the advertising show an appropriate consideration for all facets of the market? Was the advertising comprehensive and balanced? Did the advertising use a full range of tools and techniques to ensure maximum penetration and retention? By memo to all committee members, entitled "Instructions and Timetable for Evaluation Committee Members," and again at the commencement of their deliberations, all committee members were advised that they must evaluate the proposals based on the criteria set forth in the RFP, and to utilize their own individual expertise in applying the criteria. In this regard, the proof demonstrates that the members of the committee abided such directive, and scored the proposals based on the established criteria, except as hereinafter discussed, as applied through their own background and experience. 3/ At the commencement of their deliberations, the committee members agreed that the format they would follow in evaluating the technical proposals would be to first review all the proposals, and then score the proposals individually. This procedure was followed although, not unexpectedly, some members made preliminary assessments as they progressed through the various proposals. Upon completion of their review, the members then scored each proposal and, as appropriate, made adjustments to preliminary assessments they had made based on the perspective they had acquired after their review of all the proposals. Here, Bozell complains that the RFP did not permit the scoring of proposals relative to each other but, rather, required that the proposals be evaluated and scored solely by applying the criteria independently to each proposal, and that the failure of all committee members to so evaluate the proposals is a fundamental flaw in the evaluation process. Bozell's complaint is not, however, persuasive. Here, the RFP required, among other things, a determination of the relative creativity, approach, quality and thoroughness of a firm's plans for providing the services requested by subsections 2.3A-D of the RFP. Under such circumstances, considering the subjective nature of the evaluation, it would not be unreasonable to assign points based on relative merit. And, considering the fact that the proposals were not scored until all proposals had been reviewed that, more likely than not, is what was done by each committee member, consciously or subconsciously. As importantly, each member of the committee scored the proposals independent of any other member of the committee, and was consistent with the approach he took as to each firm's proposal. 4/ Accordingly, it cannot be concluded, based on the proof in this case, that the evaluation process was fundamentally flawed because of the manner in which points were awarded. However, because points were awarded on a relative basis, the inclusions of non-responsive proposals in the evaluation process could have materially affected the scoring of proposals and the Department's failure to exclude non-responsive proposals from the scoring process, as required by section 5.1 of the RFP, was a material departure from the requirements of the RFP. Bozell also complains that Mr. Johnson evaluated the technical proposals in light of his knowledge about the success of other states' lottery advertising. The application of such expertise to the criteria contained in the RFP was, however, appropriate, as discussed supra. As noted by Mr. Johnson: . . . That's my frame of reference against which I measured all of the companies. I could tell that some of the companies really didn't know what they were talking about, because they were suggesting things that were failing in other states. And I was aware of that from my general information background. [Tr. 471] As heretofore noted, selection of committee members with knowledge of the program area, and the exercise of that expertise in applying the criteria, is most appropriate to a reasoned evaluation of a proposal. Finally, with regard to the evaluation of the technical proposals, Bozell offered proof that some committee members failed to apply specific criteria mandated by the RFP, or otherwise scored the proposals in a manner at variance with that called for by the RFP. In this regard, the proof demonstrates that while proposals were to be evaluated, at least in part, based on the different games and formats that were presented in the technical proposals (see subsection 2.3B of the RFP), Mr. Ruchalski did not do so because he had no knowledge upon which to base a decision. Regarding subsections A5-8 of Attachment F (the scoring criteria), Mr. Johnson did not award points in the manner mandated by each subsection. Finally, notwithstanding that an evaluation of the overall ability of the applicant, as set forth in section A of Attachment F to the RFP, required an examination of the "financial stability of the firm and financial capability to provide the entire scope of services," no evaluation of the financial integrity and responsibility of any of the firms was made, and such criteria were not applied in the evaluation process. 5/ In its proposed recommended order, the Department suggests that it would be unnecessarily burdensome to require a detailed financial review by the agency at the initial bid analysis stage since, ultimately, only one firm will be awarded the contract, and because security and financial investigations will be done before a contract is awarded. While such may be the case, it was the Department's election to provide for an analysis of financial stability and capability as part of the review criteria. Oral presentation evaluation The second phase of the evaluation process was the scoring of the oral presentations. Pertinent to this case, section 5.3 of the RFP provided: . . . The oral presentations must be made by the account service, creative and media personnel who would work on the account. There will be no limitation on the information and materials pertinent to this RFP which may be utilized . . . . Section 5.5 of the RFP provided that presentations would be scored based on the following general criteria: Understanding of services requested -- up to 20 points, account team -- up to 25 points, responsiveness to questions -- up to 15 points, and overall impression -- up to 20 points. Finally, Attachment G to the RFP provided that the evaluation relative to the account team would be scored as follows: Account Team = 25 points maximum Did the proposed account team participate? Creativity, quality, uniqueness demonstrated by account team? Respondent's advertising philosophy demonstrated, long term image building? Did account team members prepare samples submitted? EPB's oral presentation was made by Jeb Brown, the chief executive officer of EPB; Craig Davis, the president of EPB's Florida operations; Mike Knaisch, account group head; Kandi Kirkland, account supervisor; Bruce Ayers, media director; Scott Mackey, associate creative director; Pat Hanlon, creative director; Tom Hall, chairman of EPB; and Jeff Tucker, president of public relations. Each of the presenters were identified by EPB as key personnel to be assigned to the Florida lottery account, except Jeb Brown and Tom Hall. As part of its oral presentation, EPB utilized a video tape, which presented favorable comments by the head of the Virginia lottery concerning EPB's performance for it. Addition-ally, EPB included in such video a character it utilizes for the Virginia lottery, "Lady Luck," who also said "nice things" about EPB. Here, Bozell complains that the participation of Jeb Brown and Tom Hall, in the oral presentation, as well as the use of the video which included comments by the head of the Virginia lottery and "Lady Luck," was improper under the provisions of the RFP because they were not members of the account team. Such compliant is, however, unpersuasive. While section 5.3 of the RFP did require that the oral presentation be made by the account, creative, and media personnel who would work on the account, it did not expressly preclude others from participating, and the RFP placed no restrictions on the information and materials pertinent to the RFP that could be utilized. Accordingly, EPB's oral presentation was not at variance from the RFP and, if it were, it was not shown to be a significant deviation. As heretofore noted, the evaluation relative to the account team allowed an award of up to 25 points, and required, among other things, a determination of whether the account team participated; the creativity, quality and uniqueness demonstrated by the account team; and whether the account team members prepared the samples that were submitted. The committee members did not, however, make any specific inquiry regarding whether the account team participated or prepared the samples, although the bidders generally made it a practice to introduce the account team members, but assumed such to be the case for purposes of scoring the presentations. Here, Bozell contends that the committee's failure to expressly inform itself as to whether the account team participated and prepared the samples, as opposed to indulging the assumption that they did, constitutes a significant failing in the evaluation process. However, Bozell failed to demonstrate, at hearing, that the committee's assumption was misplaced. Finally, Bozell offered proof that Dr. Sawyer awarded Bozell 21 points and EPB 22 points for "overall impression," when 20 points were the maximum contemplated by the RFP. Such error was, however, inadvertent, it simply being the intention of Dr. Sawyer to award EPB one more point than Bozell, and was harmless since it did not affect the overall outcome. Cost proposal evaluation Section 5.6 of the RFP provided the criteria for evaluation of the cost proposals and provided that: Finalists' cost proposals will be given points based on an evaluation of the proposed compensation and the experience and qualifications of the proposed staff. A maximum value of 40 points was established for this part of the evaluation. The cost proposals, which the committee members were to evaluate, were contained in a "sealed cost proposal envelope" and were, pursuant to subsection 2.4B of the RFP, to contain: The cost proposal shall include a calculation of the Respondent's proposed compensation for undertaking and completing all phases of the services requested and outlined in this RFP. The cost proposal shall be prepared in the same format as illustrated on Attachment "E" and shall be completed as follows: The Respondent shall provide an aggregate gross salary by work category and position classification for all personnel who will work on the Lottery's account. The aggregate gross salary shall include only that portion of each individual staff member's time that will be attributable to the Lottery account. The portion of time proposed in the cost proposal shall match the labor hour percentages proposed for each individual as required in Section 2.3(E)(4). The Respondent shall also include a proposed multiplier of the type described in paragraph A above. The Respondent shall multiply the aggregate gross salary by the multiplier and the product shall be included in the cost proposal. The Respondent shall also include, in the sealed cost proposal envelope, resumes for all personnel whose salary, or portion thereof, was included in the calculation of the proposed aggregate gross salary resumes shall be included regardless of whether the resumes have also been included in the technical proposal envelope. While the RFP contemplated that all three sections of the proposal (technical, oral presentation, and cost) would be evaluated and scored independent of each other, and that the evaluation of the cost proposal would be limited to an evaluation of the information contained in the "sealed cost proposal envelope," not all committee members so limited their evaluation. Rather, some committee members utilized the knowledge they had gleaned from evaluating the technical proposals and oral presentations, as well as the scores they had assigned during the course of those evaluations, to assist them in assessing the qualifications and experience of the proposed personnel and weighing the firms' proposed compensation. Indeed, it is difficult to imagine how any committee member could ignore the knowledge he had acquired during the course of his evaluations that was reflective of the quality and experience of the proposed staff, any more than he could ignore the expertise he had acquired through his life experiences, in evaluating the cost proposal. Notably, the RFP, as it related to the cost proposals, provided that "the portion of time proposed in the cost proposal shall match the labor hour percentages proposed for each individual as required by section 2.3(E)(4)" of the RFP [the key personnel], and the committee had, as part of their evaluation of the technical proposal, previously evaluated the proposed account team, as well as the relative creativity, approach, quality and thoroughness of their proposals relative to subsections 2.3A-D of the RFP. At the oral presentation, the committee had an opportunity to put faces with names, and broaden their knowledge of the individuals involved. Accordingly, when it came time to evaluate the cost proposals, which involved a consideration of staffing and salary, the members of the committee had certainly formulated opinions regarding the quality of the staff proposed by the respective firms, and balanced that opinion against the proposed compensation to derive the most cost effective proposal. While it may seem unreasonable to restrict the committee to the bare resumes and costs set forth in the cost proposal, as the basis for their evaluation, the reasonableness of the provisions the Department formulated are not at issue in this proceeding. Accordingly, it is concluded that by going beyond the information contained within the cost proposal, the members of the committee materially deviated from the requirements of the RFP. This conclusion prevails, since those bidders who were favored in the evaluation of the technical proposals or oral presentation were, by the consideration of the opinions derived from such evaluations, accorded an unfair advantage over other bidders.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which rejects all bids, and that a new invitation to bid be extended. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of July 1991. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July 1991.
The Issue The central issue in this case is whether the sum of $1,318.00 should be permanently withheld from Petitioner's lottery winning.
Findings Of Fact The Petitioner, Virginia Ann Dassaw, was formerly known as Virginia Ann Davis. In 1979, Petitioner was charged with a criminal violation of Section 409.325, Florida Statutes, welfare fraud. The information alleged Petitioner had received food stamps which she was not entitled to because financial assistance was not available to her. On May 29, 1979, Petitioner appeared before the court and entered a guilty plea to the charge. As a result of the negotiated plea, Petitioner received two years of unsupervised probation and adjudication was withheld. Petitioner received $1,318.00 in overpayments from the Department of Health and Rehabilitative Services for the period March, 1977 through June, 1978. Such overpayments, monthly assistance payments, were from aid to families with dependent children; benefits Petitioner was not entitled to receive. Petitioner did not believe she was required to repay the overpayment amount since the criminal court did not require restitution as part of the conditions of her probation in connection with the food stamp welfare fraud. Petitioner did not, however, aver that she had repaid the obligation at issue nor did she dispute that she had received an overpayment. She felt that the criminal proceeding had been sufficient to satisfy the question. The order granting probation and fixing terms thereof did not, however, excuse Petitioner from the amount claimed in the instant case. On or about February 26, 1996, Petitioner became a lottery prize winner in the amount of $2,500.00. In conjunction with its claim for the overpayment described above, the Department of Health and Rehabilitative Services notified the Department of the Lottery of its claim for reimbursement from Petitioner's winnings in the amount of $1,318.00. The Department of the Lottery transmitted the winning amount to the Office of the Comptroller. The winning amount, less the claim filed by the Department of Health and Rehabilitative Services, was issued to Petitioner by expense warrant number 4-17 700 616 on March 12, 1996, in the amount of $1,182.00. Petitioner timely contested the amount claimed by the Department of Health and Rehabilitative Services.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Banking and Finance, Office of the Comptroller, issue a final order finding the Department correctly reduced Petitioner's lottery prize winning by $1,318.00 and dismissing Petitioner's challenge to the amount disbursed. DONE AND ENTERED this 25th day of October, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 25th day of October, 1996. APPENDIX Rulings on the proposed findings of fact submitted by Petitioner: None submitted. Rulings on the proposed findings of fact submitted by the Respondent, Department of Health and Rehabilitative Services: 1. Paragraphs 1 through 6 are accepted. COPIES FURNISHED: Virginia Ann Dassaw 10075 Southwest 170th Terrace Perrine, Florida 33157 Andre L. Williams Assistant District Legal Counsel Department of Health and Rehabilitative Services 401 Northwest Second Avenue, N-1014 Miami, Florida 33128 Josephine A. Schultz Chief Counsel Office of the Comptroller Department of Banking and Finance The Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350 Louisa Warren, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32399 Robert F. Milligan Office of the Comptroller Department of Banking and Finance The Capitol, Plaza level Tallahassee, Florida 32399-0350 Harry Cooper General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-00350
