Findings Of Fact In 1984 and for many years prior Petitioner held a Certificate of Qualification to bid on and be awarded contracts let by the Department. On April 10, 1984, Petitioner entered into a voluntary plea, and was convicted of a one-count criminal violation of Title 15, USC, Section 1, which is commonly known as "The Sherman Antitrust Act." The charge involved a public contract with the Florida Department of Transportation in which Petitioner received a complimentary bid from another contractor who was bidding on the same project which was awarded to Petitioner. This practice is commonly known as "bid rigging." The conviction took place in the U. S. Northern District Court of Florida. Petitioner would have submitted the same bid on this project without the benefit of the complimentary bid. 33 C.F.R, Part 16, provides for a maximum debarment on first conviction of 36 months by a federal agency. Petitioner was debarred by the Federal Highway Administration for only six (6) months based upon a review and determination of culpability of the Petitioner in the crime of which Petitioner was convicted. Immediately subsequent to December 17, 1984, Petitioner was declared acceptable for employment on highway projects which required approval or concurrence of the Federal Highway Administration. On June 18, 1984, Respondent revoked the Petitioner's Certificate of Qualification for a period of 36 months pursuant to Florida Statutes 337.165(2)(a). The only reason given for the revocation was the aforementioned conviction. With the exception of Petitioner, who has never had a decision rendered on a Petition for Reinstatement by Respondent, every contractor who has been debarred and/or had its Certificate of Qualification revoked by Respondent pursuant to Section 337.165, Florida Statutes, who has petitioned for reinstatement, has been reinstated by Respondent. Exhibit "A" hereto is a list of contractors who were debarred by Respondent and were reinstated. It was in the public interest to reinstate each of these contractors. It is in the public interest and the interest of the Respondent to build roads, build them at a good price, and have a competitive bidding system with integrity. Petitioner has promptly and voluntarily continued to pay its fine of $65,000 to the Federal Court. No payment of damages has ever been requested by the State as a result of the Petitioner's violation of state or federal antitrust laws. The Petitioner notified the Respondent within thirty (30) days after his conviction of the contract crime. Petitioner has the manpower, equipment, financial resources, and contracting experience to meet the Respondent's requirements in those areas for the purpose of a Certificate of Qualification. Howard H. Hewitt became affiliated with Square D Contracting Company in 1967 when he acquired a minority interest in the company. He subsequently increased that interest to 50 percent. In 1980 he acquired the remainder of the stock and changed the name of the company to Hewitt Contracting Co., Inc. In 1980 the Florida Attorney General's Office commenced an investigation of bid rigging by road contractors. In February 1983 the Attorney General's Office subpoenaed Hewitt to appear under their Civil Investigative Demand procedures and give evidence about his knowledge of bid rigging in Florida. He appeared and, on the advice of counsel, refused to give testimony claiming protection under the Fifth Amendment. By Court Order, Exhibit 8, dated June 24, 1983, Hewitt was directed to give testimony to the Florida Attorney General under grant of immunity from criminal prosecution and from any civil penalty as provided in s. 542.21(1), Florida Statutes (1981), as to those transactions about which he testifies. In compliance with that order he submitted documents and testified before assistant attorneys general three times. A grant of immunity by the Florida Attorney General's Office would not shield Hewitt from federal prosecution. Following the filing of charges by the Federal District Attorney, Hewitt provided testimony to federal officials several times regarding his knowledge of contract crimes, dropped his membership in the Florida Road Builders Association, started using a different hotel during his appearances in Tallahassee, and limited his contacts with fellow contractors to those necessary to conduct business. In a subsequent damage trial brought by the Attorney General's Office against Ezelle Construction Company, Hewitt advised both parties that he would testify for neither and, upon advice of counsel, would claim the Fifth Amendment if subpoenaed. Neither side subpoenaed Hewitt. The jury found Ezelle not liable for damages as claimed by the Attorney General. The only witness called by Respondent, Assistant Attorney General Bayard W. Heath, testified that the critical part of the bid rigging investigation in which he was involved occurred in 1983 at which time Hewitt asserted the Fifth Amendment privilege and caused a change in the investigation plans of the antitrust division. When Hewitt's counsel in January 1985 advised Heath that Hewitt would take the Fifth Amendment if subpoenaed to testify in the civil damages suit brought against Frank Ezelle, et al., he released Hewitt from the subpoena and did not attempt to enforce the subpoena. Petitioner presented one rebuttal witness, the attorney who represented Hewitt during the civil investigative demand procedures by the antitrust division of the Attorney General's Office. He testified that he was never advised by Heath or any other attorney from the Florida Antitrust Division that there was a critical period during which Hewitt's testimony was wanted, or that they were in any manner dissatisfied with the cooperation given by Hewitt after the grant of immunity. This witness also testified that an offer by Hewitt to settle any charges against him by an offer to pay damages to the state was flatly rejected by the antitrust division and that he was told that if Hewitt cooperated with the antitrust division they would decide after the fact what action they would take against petitioner. Prior to the revocation of its Certificate of Qualification in 1984, Square D and subsequently Hewitt Contracting Co., Inc., enjoyed a reputation as a competitive bidder who completed projects in a timely and professional manner. Two witnesses employed by Respondent in the area of Petitioner's headquarters opined that reinstatement of Petitioner's Certificate of Qualification would enhance the road building and construction work in Florida by the addition of Petitioner as an active participant in the bidding process. Subsequent to the conviction in the Federal Court Petitioner prepared a Code of Conduct for Employees of Hewitt Contracting Company (Exhibit 4) and distributed this to all personnel involved in preparing bids for Petitioner. Additionally, Howard H. Hewitt personally approves all bids submitted by Petitioner and supervises those preparing these bids. Howard H. Hewitt expressed remorse about the company's prior activity leading to the conviction and is committed to ensuring that it never occurs again.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Through RFP-DOT-94/95-4009, entitled "Rest Area Security Services- District Four" (hereinafter referred to as the "RFP"), the Department requested the submission of proposals from "consultants" interested in providing the Department with security services at rest areas on Interstate Highways in St. Lucie, Martin and Broward Counties in the Department's District IV. The "objective" of the RFP was explained as follows in Section 1.0 of Exhibit "A," which was attached to, and incorporated in, the main body of the RFP: To provide appropriately equipped and security personnel at Rest Areas along the Interstate Highways, and to provide protection for the General Public, Department personnel, and all property at locations specified in this Contract (see Exhibit "D," for locations). It is the intent of the Department to protect its personnel, property, and the Public by means of well-trained, alert, interested, and concerned Security Officers. The Contractor must ensure that their Security Officers properly carry out their primary duty to safeguard the General Public, the Department's personnel, and all property. The "services to be provided" to the Department were described as follows in Section 2.0 of Exhibit "A:" The Contractor shall provide qualified, competent, uniformed, and armed Security Officers to provide security services to protect the health, safety, and welfare of all the citizens of and visitors to the State of Florida. The Contractor will be responsible for verifying that the scope of its operations are sufficiently broad and well defined to ensure the maximum protection of property and life and are also consistently managed in an efficient and profes- sional manner. It shall be the responsibility of the Contractor to provide security services as stated herein, within the physical limits of the rest areas and/or welcome stations. Those limits shall begin at the approach taper of the deceleration lane, extend through the rest area and/or welcome station from the edge of the paved shoulder of the main roadway, and terminate at the end of the acceleration taper. The Security Officers will be responsible for monitoring the grounds surround- ing the facility, including, but not limited to: all parking lots, picnic areas, and restroom build- ings. The Contractor shall insure that all employees comply with all applicable laws, ordinances, rules, and regulations set forth by the Department. The security services shall be provided on a continuous 24-hours-per-day and 7-days-a-week (including all holidays) basis. The Contractor shall have sufficient back-up personnel and equip- ment available to immediately replace personnel and/ or equipment that may fail. The Department may modify the type of service, number of hours, or number of employees upon 24-hours-notice in writing. The Contractor shall furnish one or more Security Officer(s) per each Rest Area unit and/or Welcome Station. There are five (5) units in District IV (see exhibit "D" for locations). The Contractor, and every employee of the Contractor assigned to the project, shall comply with the security industry standards referenced in Chapter 493, Florida Statutes. The Contractor shall provide materials and equipment as specified herein. At all times, Security Officers will be courteous and display a professional and friendly manner. The "special requirements" of the contract into which the Department would enter with the winning "consultant" were set forth in Section 3.0 of Exhibit "A," which provided, in pertinent part, as follows: The Department reserves the right to require the Contractor to relieve an employee from duty assignments and/or bar an employee from further service under this Contract. No reason need be given by the Contract Manager. 1/ The Contractor shall obtain and pay for any and all licenses, permits, registrations, and inspections, etc. required for this project's proposal and performance. The Contractor shall comply with all laws, ordinances, regulations, and code requirements applicable to the work contemplated herein. Damages, penalties, and/or fines imposed on the Department or the Contractor for failure to obtain any and all required licenses and/or permits shall be borne by the Contractor. Prior to any employee beginning work pursuant to this Contract, the Contractor's Project Manager shall provide sworn certification to the Department's Contract Manager that each employee (Security Officers and Contract Supervisors) 2/ meets the eligibility criteria as specified herein. The "eligibility criteria" for these "Security Officers and Contract Supervisors" were set forth in Section 18.0 of Exhibit "A," which provided, in pertinent part, as follows: All Security Officers and Contract Supervisors employed by the Contractor under this Contract are required to meet the minimum qualifications and standards regarding background, experience, and health. The suitability of Security Officers and Contract Supervisors for employment pursuant to this Contract must be determined by the Contractor; however, the Department reserves the right to disapprove of the employment of Security Officers and Contract Supervisors due to unsuitability. Minimum Requirements for Security Officers: . . . 8) Must acquire, keep active, and possess on their persons at all times while on duty all personal, professional, and technical licenses or certificates specified in this Contract, or otherwise required for performance of the work required pursuant to this Contract. . . . Minimum Requirements for Contract Security Supervisors Contract Supervisors must meet the eligibility criteria established for the Security Officer classification. . . . Required Documentation: All of the Contractor's personnel (e.g. Security Officers and Contract Supervisors) performing work under this Contract must possess on their person at all times while on duty, and keep current all appropriate cards, certificates, and licenses, as follows (unless the Contractor's personnel is certified and employed as a law enforcement officer or correctional officer and exempted from such licensure requirements pursuant to Section 493.6102(1), Florida Statutes): State of Florida Class "D" License (security guard license) State of Florida Class "G" License (license authorizing individual to bear a firearm) NOTE: The use or possession of a concealed firearm in connection with this Contract is prohibited. State of Florida Driver's License or other State Driver's License which permits the individual to operate a vehicle in the State of Florida. Section 1.7 of the main body of the RFP addressed the subject of the "consultant's" qualifications to provide the services to be performed under the contract. It read as follows: Qualifications for Consultant Services General The Department will determine whether the proposed 3/ is qualified to perform the services being contracted based upon the Consultant demonstrating in its proposal satisfactory experience and capability in the work area. The proposer shall include the necessary experienced personnel and facilities to support the activities associated with this contract. Qualifications of Key Personnel Those individuals who will be directly involved in the project must have demonstrated experience in the areas delineated in the scope of services. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Project Manager. Authorizations and Licenses The Consultant must be authorized to do business in the State of Florida. Such authorization and/or licenses should be obtained by the proposal due date and time, but in any case, will be required prior to award of the contract. For corporate authorization, contact: Florida Department of State Division of Corporations The Capitol Building Tallahassee, Florida 32399 (904)487-6052 Review of Facilities After the proposal due date and prior to contract award, the Department reserves the right to perform or have performed, an on-site review of the proposer's facilities. This review will serve to verify data and representations submitted by the Proposer and to determine whether the proposer has an adequate, qualified, and experienced staff, and can provide overall management facilities. The review will also serve to verify whether the Proposer has financial capability adequate to meet the contract requirements. In the event the Department determines that the size or nature of the proposer's facilities or the number of exper- ienced personnel (including technical staff) are not reasonably adequate to ensure satisfactory contract performance, the Department has the right to reject the proposal. 4/ Section 1.8 of the main body of the RFP addressed the subjects of "Department reservations and responsiveness of proposals." It read as follows: General The Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award without further discussion of the proposals submitted. Therefore, the proposals should be submitted initially in the most favorable manner. It is understood that the proposal will become a part of the official file on this matter without obligation to the Department. Responsiveness of Proposals All proposals must be in writing. A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal. Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non-responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper or undated signatures. Multiple Proposals Proposals may be rejected if more than one proposal is received from an individual, firm, partnership, or corporation, or combination thereof, under the same or different names. Such duplicate interest may cause the rejection of all proposals in which such proposer has participated. Other Conditions Other conditions which may cause rejection of proposals include evidence of collusion among proposers, obvious lack of experience or expertise to perform the required work, or failure to perform or meet financial obligations on previous contracts, or in the event an individual, firm, partnership, or corporation is on the United States Comptroller General's List of Ineligible Contractors for Federally Financed or Assisted Projects. Waivers The Department may waive minor informalities or irregularities in proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposals by giving a proposer an advantage or benefit not enjoyed by other proposers. Section 1.10 of the main body of the RFP provided that "[t]he general terms and conditions of any agreement between the Department and the selected proposer will be guided by State procedures" and that "[e]ach individual, partnership, firm or corporation that is part of the proposer's team, either by joint venture, or subcontract, will be subject to, and comply with, the contractual requirements." Subsection 1.14.2 of the main body of the RFP established 12:00 noon on Friday, May 12, 1995, as the deadline for the submission of proposals in response to the RFP. Pursuant to Section 1.16 of the main body of the RFP, each proposal was to consist of a management plan (worth a maximum of 20 points), a technical plan (worth a maximum of 15 points) and a price proposal (worth a maximum of 65 points). Section 1.19 of the main body of the RFP addressed the subject of "award of contract." It provided as follows: The Department intends to award ONE (1) contract to the responsible and responsive proposer whose proposal is determined to be the most advantageous to the Department. NOTE: CONTRACTOR SHALL EXECUTE AND RETURN AGREEMENT WITHIN TEN (10) CALENDAR DAYS AFTER "NOTICE OF AWARD." IN THIS TIME PERIOD THE CONTRACTOR SHALL DEMONSTRATE COMPLIANCE WITH CONTRACT REQUIREMENTS. FAILURE TO MEET THE REQUIREMENTS WITHIN THIS SPECIFIED TIME WILL SHOW EVIDENCE OF CONTRACTOR'S LACK OF ABILITY TO MEET THE REQUIREMENTS AND THE DEPARTMENT MAY REWARD TO THE PROPOSER WITH THE NEXT HIGHEST SCORE. Proposers seeking Disadvantaged Business Enterprise (DBE) preference points were also required to complete and submit a DBE Preference Certification form, as explained in subsection 1.16.5 of the main body of RFP, which provided as follows: For the purposes of this RFP, a certified DBE shall be certified by the Florida Department of Transportation pursuant to Florida Administrative Code, Rule Chapter 14-78. The Proposer shall address Florida CDBE partici- pation by either themselves or subcontractors. 5/ The Department will add 30 points to the scores of Certified Disadvantaged Business Enterprises (CDBE) proposing as the prime consultant on this project. The Department will add up to 30 points to the scores of firms (Non-CDBE) utilizing Certified DBE's as subcontractors for services or commodities as follows: 30 percent or more of the total project costs- 30 points 25 percent but less than 29.99 percent of the total project costs- 20 points 20 percent but less than 24.99 percent of the total project costs- 10 points 15 percent but less than 19.99 percent of the total project costs- 05 points 0 percent to 14.99 percent of the total project costs- 0 points Complete and submit the DBE Preference Points Certification Form (Form "D") in the Price Proposal, if CDBE preference points are to be considered. On Form "D," proposers had to indicate the following: I, (Name), (Title), of (Name of Firm), herby certify that our firm (is) (is not) a Department of Transportation (Department) certified Dis- advantaged Business Enterprise (DBE). I also certify that our firm's intention regarding subcontracting on the above referenced project(s) to Department certified Disadvantaged Business Enterprises is as follows: (Check One) Intends to subcontract at least 30 percent or more= 30 points Intends to subcontract at least 25 percent but less than 29.99 percent= 20 points Intends to subcontract at least 20 percent but less than 24.99 percent= 10 points Intends to subcontract at least 15 percent but less than 19.99 percent= 05 points Intend[s] to subcontract less than 15 percent work to DBE(s)= 0 points Since I have indicated above that a percentage of total project costs will be subcontracted to certified DBE(s), the firms considered as proposed DBE subconsultant/vendors and the types of services/commodities to be subcontracted are as follows: DBE SUBCONSULTANTS/VENDORS: TYPE OF WORK/ COMMODITIES I understand that the Department will give preference in selection of DBE(S) and to other firms who propose to subcontract at least 15 percent or more of the total project costs to DBE(s). I further understand that five (5) preference points will be added to my proposal score if my firm indicates its intent to sub- contract at least 15 percent but less than 19.99 percent of the services/commodities to DBE(s); and that ten (10) preference points will be added to my proposal score if my firm indicates its intent to subcontract at least 20 percent but less than 24.99 percent of the services/commodities to DBE(s); that twenty (20) preference points will be added to my proposal score if my firm indicates its intent to subcontract at least 25 percent but less than 29.99 percent of the services/commodities to DBE(s); and a maximum of thirty (30) preference points will be added to my proposal score if my firm indicates its intent to subcontract 30 percent or more of the services/commodities to DBE(s) or is a Department certified DBE. On or about May 5, 1995, the Department issued the following addendum to the RFP "to answer and clarify questions presented by a potential proposer:" 6/ Reference the above project in which you have an interest. Please add this letter and enclosed pages into your Request for Proposal. Will DOT permit subcontracting of security services to DBE's? (The DBE would have to comply with all requirements of the RFP regarding security officer qualifications, etc.). 7/ Response: Yes Will the DOT permit proposals which include a "pending" DBE certification for a business applying for DBE certification? Response: To receive performance points a DBE prime contractor must be certified by the May 23, 1995 posting. Will points be awarded to DBE subconsultants/ vendors with a "pending" certification status during the evaluation process? Response: To receive performance points a DBE Subconsultant/Vendor must be certified by the May 23, 1995 posting. 8/ Can DOT provide a list of certified Disadvantaged Business Enterprises? Response: An FDOT DBE Directory is available for review at any District Office or a copy can be obtained from the FDOT Minority Programs Office in Tallahassee by calling 904-921-7370. We have listed below three (3) Certified DBE firms who have shown an interest in providing security services[.] 9/ [T]hey are: American Alarms, Inc. 305-653-7708 Tunjos Trading Company, Inc. 305-621-2668 Universal Private Investigative & Guard Agency, Inc. 407-636-7270 The following ten (10) firms have "Pending" applications as of May 5, 1995, for FDOT-DBE Certification: Alanis Security, Inc. 305-595-8171 Barkley Security Agency 904-856-5646 Delad Security, Inc. 305-691-5772 Ford Patrol & Security 305-836-5544 Jake Ross Detective & Security Agency 904-258-8709 Pacific Security Service, Inc. 305-989-0369 Small Rehab Services & Small Security Agency 813-237-2689 Special Tech Security Agency 904-723-0115 Supreme Intelligence Agency 305-777-3134 Walter Investigative Services 305-653-1144 Pleas remember that you must SIGN AND RETURN THIS ADDENDUM WITH YOUR BID PROPOSAL. FAILURE TO SUBMIT WITH BID PROPOSAL AND ACKNOWLEDGE THIS ADDENDUM WILL DISQUALIFY YOUR PROPOSAL. If you have any questions, please call me at (305)777-4611. Petitioner and Intervenor, both Florida-licensed security guard agencies, submitted proposals in response to the RFP, which included completed and signed Form "D"s. Petitioner's and Intervenor's price proposals (on a monthly basis) were $60,720.00 and $53,458.80, respectively. On its completed and signed Form "D," Petitioner indicated that it was not a Department-certified DBE, but that it intended to subcontract "at least 30 percent or more" of the total project costs to a certified DBE. Petitioner further indicated on the form that its "proposed DBE subconsultant/vendor" was Dadeline Corporation and that the "services/commodities to be subcontracted" were "security guard services." Dadeline was a Department-certified DBE that possessed a Class "B" Security Agency license issued by the Department of State, Division of Licensing pursuant to Chapter 493, Florida Statutes. On its completed and signed Form "D," Intervenor, like Petitioner, indicated that it was not a Department-certified DBE, but that it intended to subcontract "at least 30 percent or more" of the total project costs to a certified DBE. 10/ Intervenor further indicated on the form that its "proposed DBE subconsultant/vendor" was American Alarms, Inc., and that the "services/commodities to be subcontracted" were "security services." American Alarms, Inc., was one of the three Department-certified DBE firms mentioned in the addendum to the RFP as having "an interest in providing security services." Unlike Dadeline Corporation, however, it did not possess a Class "B" Security Agency license issued by the Department of State, Division of Licensing, nor did it have any experience in providing security guard services. Both Petitioner and Intervenor received 30 DBE preference points. Intervenor was awarded these DBE preference points, notwithstanding that its "proposed DBE subconsultant/vendor," American Alarms, Inc., did not possess a Class "B" Security Agency license authorizing it to conduct business as a security guard agency in the State of Florida or have any experience in the provision of security guard services. There is no indication, however, that the Department was aware, at the time it awarded these preference points to Intervenor, that American Alarms, Inc., was unlicensed and inexperienced. The RFP did not direct proposers to provide the Department with any information regarding the current licensure status and experience of its "proposed DBE subconsultant/vendor" and Intervenor did not volunteer such information in its response to the RFP. 11/ Petitioner's total score was 109.25, the second highest of all proposers. Intervenor's total score was 119.92, the highest of all proposers. The scores were posted on May 23, 1995. The posted proposal tabulation reflected that the contract award was made to Intervenor as "the responsive and responsible offeror whose proposal [was] determined to be the most advantageous to the State taking into consideration price and other criteria." Thereafter, Petitioner filed the protest that is the subject of the instant proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order rejecting Petitioner's protest of the decision to award State Job No. 99906-9520 to Intervenor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November, 1995. STUART M. LERNER 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 21st day of November, 1995.
Findings Of Fact Gordy is the owner of Tracers. He holds an R Recovery Agency license for Tracers, #R91-00031, and an E Recovery Agent license, #E91-00027. On the afternoon of August 20, 1992, in Duval County, Florida, Gordy and Jessica Clark repossessed a 1989 Hyundai Excel from Lisa Clouse based on an Order to Repossess from Sport Acceptance Corporation. The car was parked under the carport attached to the house where Clouse resided with her parents, Russell and Grace Bonitatibus, and her children. The various witnesses related radically different versions of what transpired in the course of this repossession. Having considered the demeanor of the witnesses and the consistency or inconsistency of their stories, it is found that the versions told by Clouse and her parents are contradictory, implausible, and unworthy of belief. The findings set forth below represent the version of the events which is most credible. On August 20, 1992, at around 3:30 p.m., Gordy and Clark located the vehicle for which an Order to Repossess had been issued. They backed the tow truck into the driveway and chained and lifted the car. The car was parked in the carport facing forward such that the car was lifted from its rear and would be towed backwards. Clouse came out and tried to persuade Gordy not to take the car so that she could make a payment by 5:00 p.m. Gordy insisted that he was taking the vehicle. Clouse asked him to come in the house while she called Bob Burnes at Sport Acceptance Corporation. Clouse was cussing at Burnes before and during the telephone call. After speaking with Burnes, Clouse handed the keys to Gordy and said "you can take the damn car, but I want my shit," meaning that she wanted her possessions from inside the car. Gordy told her that would be no problem. Gordy and Clouse went outside to the car. Gordy unlocked it using Clouse's keys. Clouse removed some personal items from the rear hatch. She then opened the driver's door and removed some other items. Clark went to the cab of the truck to get a garbage bag into which Clouse could place her belongings. Meanwhile, Clouse partially closed the driver's door and asked Gordy for a screwdriver to remove her license plate. Gordy went to the driver's door of the truck to get a screwdriver. Clouse was swearing loudly and frequently at the car and Sport Acceptance Corporation, but she seemed to be cooperating in the repossession. While Gordy was in the cab of the truck at the driver's side, Clouse was standing near the rear of the truck and the car, on the opposite side. Clark was coming back from the passenger side of the truck toward the driver's side of the car when Clouse, without warning, picked up a five foot length of chain with a wrecker hook attached from the back of the truck. Clouse swung the hook at Clark. Clark heard the "woosh" of the chain swinging just in time to look up and then duck. Gordy heard the chain rattling and looked back just as Clark ducked the first swing. Clouse gathered herself to swing again and Clark backed up to the open truck door. Gordy yelled at Clouse to stop and he grabbed a 200,000 volt stun gun from inside the truck. While standing by the truck's driver's door and with Clouse on the opposite side of the truck near its rear bumper, Gordy held the stun gun in the air and fired it up into the air. The loud zapping sound from the stun gun got Clouse's attention, she dropped the chain and just stood there. Gordy yelled at Clark to get in the truck and he immediately drove out of the driveway towing the car. Because he had not had an opportunity to release the emergency brake in the car, the car's front tires were dragging. The windows of the truck were open and both Gordy and Clark heard Clouse's father yelling at her to stop and to let go. They looked back and saw Clouse running along and trying to get into the car. The car door on the driver's side was open. Her father was chasing her. Neither Gordy nor Clark had any idea that Clouse was trying to get into or had gotten into the car until they heard her father yelling. As soon as Clouse was away from the car, they stopped and Clark ran back to close the open car door because it was on her side of the truck. Clouse claims that she was in the car and that somehow she was thrown clear. However, a neighbor who witnessed the incident, Gordy and Clark all say that Clouse was standing by the side of the street. Clouse also says she was beinging dragged with one foot out of the car, yet no one, including Clouse, noticed any scrapes or blood on her feet. Clouse's parents describe these events quite differently from Clouse. She also claims that Gordy pressed the stun gun against her stomach when he fired it. However, she was not rendered unconscious and she did not notice any burn or bruise on her stomach. A 200,000 volt stun gun is only effective if in direct contact with the body and it renders the victim unconscious and causes extensive bruising and burning.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Banking, enter a Final Order dismissing the Administrative Complaint against David Gordy individually and as owner of Tracers. DONE and ENTERED this 13th day of July, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 13th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0011 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of State, Division of Licensing Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2) and 2(3). Proposed findings of fact 3-5 and 8-12 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 6 and 7 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 13 is irrelevant. COPIES FURNISHED: Henri C. Cawthon Assistant General Counsel Department of State, Division of Licensing The Capitol, MS #4 Tallahassee, FL 32399-0250 David B. Gordy c/o Tracers 7135 Beach Boulevard Jacksonville, FL 32216 Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250
The Issue The issues are whether the specifications in two requests for architectural and construction management services violate Subsection 120.57(3)(f), Florida Statutes (2003), for the reasons alleged in two written protests.
Findings Of Fact Petitioner is a general contractor/construction management firm in the State of Florida. The firm maintains its principal office in Tampa, Florida, and provides construction management services throughout the state. The state previously certified Petitioner as a certified minority business enterprise (MBE), and that certification remains current. Mr. Paul Curtis is the president and chief executive officer (CEO) of Petitioner, a majority shareholder, and an African-American. Petitioner's president and CEO is licensed by the state as a general contractor, underground utilities and excavation contractor, pollutant storage systems and specialty contractor, and specialty structures contractor. However, Petitioner does not employ any person qualified to provide architectural services. Respondent is a local school district of the state. Respondent is responsible for the construction, renovation, management, and operation of the public schools in Hillsborough County, Florida. Respondent routinely obtains the services of architects, engineers, and other professionals through competitive procurement in accordance with Section 287.055, Florida Statutes (2003), the Consultants' Competitive Negotiation Act (CCNA). On December 30, 2003, Respondent posted on its website, a request for proposals (RFP) for architectural and construction management services. On January 20, 2004, Respondent posted a second RFP for architectural and construction services. The two RFPs seek architectural services and construction management services incident to the construction or expansion of approximately 12 public schools (the project). The proposed budget for the project is approximately $66.37 million. Respondent seeks to complete the projects to comply with minimum class-size requirements recently imposed by the state. Petitioner did not submit responses to either RFP at issue in this proceeding. Rather, Petitioner protested the specifications in each RFP. On January 5 and 20, 2004, Petitioner timely served Respondent with respective notices of intent to protest each RFP. On January 15 and February 2, 2004, Petitioner timely served Respondent with a formal written protest of each RFP. Petitioner alleges that each RFP is deficient for identical reasons. First, the RFPs allegedly violate the requirement in Subsection 120.57(3)(a), Florida Statutes (2003), to notify potential bidders that failure to protest the specifications in each RFP within the statutorily prescribed time, waives their right to protest either RFP (the statutory notice). Second, the RFPs allegedly fail to adequately disclose selection criteria used to select a successful applicant. Third, the RFPs allegedly violate MBE guidelines in Subsection 287.055(3)(d), Florida Statutes (2003). Fourth, the evaluation criteria are allegedly confusing or ambiguous and make it impossible to determine the basis upon which Respondent awards points. Finally, Respondent allegedly failed to consider the recent volume of work of each applicant in violation of Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003). Neither RFP includes the statutory notice. Subsection 120.57(3)(a), Florida Statutes (2003), requires Respondent to provide the statutory notice in any notice of decision or intended decision (notice of decision). Florida Administrative Code Rule 28-110.002(2)(a) defines a notice of decision to include the RFPs. Subsection 120.57(3), Florida Statutes (2003), requires Respondent to "use the uniform rules of procedure" prescribed in Florida Administrative Code Rule 28-110.002. Each RFP is a notice of decision that omits the required statutory notice in violation of Subsection 120.57(3)(a), Florida Statutes (2003). Respondent's violation of Subsection 120.57(3)(a), Florida Statutes (2003), did not result in any injury in fact to Petitioner. Petitioner received actual notice of each RFP and timely protested each RFP. Respondent issued the RFPs and partially evaluated the responses to them in accordance with a procedure prescribed in a publication that the parties identified in the record as Chapter 7.00 of the School Board Policies and Procedures Manual (the Policy Manual). In general, the Policy Manual requires a Professional Services Selection Committee (the Committee) to conduct at least two rounds of evaluation before Respondent can select a successful applicant. During the first round, each member of the Committee evaluates each application in accordance with the evaluation criteria prescribed in a Project Information Packet incorporated by reference in the RFP and made available to each applicant. Each Committee member assigns a point total for each response (a score). The Committee then designates a threshold score that an applicant must attain in order to advance to the second round of evaluation that involves face-to-face interviews. The Committee prepares a list of those applicants that attain scores sufficient to advance to the second round of evaluation. The parties identified as the "short list," the list of applicants that qualify for the second round of evaluation. In practice, the short list usually includes more than three applicants thereby necessitating a third round of interviews. Once the Committee prepares the short list, Respondent issues a second notice of decision within the meaning of Subsection 120.57(3)(a), Florida Statutes (2003). Respondent sends the notice to all applicants that submitted a response to an RFP. The second notice of decision informs each applicant of the applicant's score and identifies those applicants selected to advance to the second round of evaluation. The second notice of decision includes the statutory notice required in Subsection 120.57(3)(a), Florida Statutes (2003). The deadline for submitting applications in response to the first RFP was January 16, 2004. By January 15, 2004, Respondent had received approximately 30 applications from architects and approximately 30 applications from construction managers. By January 15, 2004, the Committee had evaluated the responses it had received and determined a short list. Respondent had notified the applicants of their respective scores and identified those applicants selected for interviews in the second round of evaluations. When Petitioner filed a written protest of the first RFP, Respondent suspended further evaluations of the applicants pursuant to Subsection 120.57(3)(b), Florida Statutes (2003). Respondent notified bidders of the short list prior to the deadline for filing responses to the RFPs on January 16, 2004. The written protests do not challenge Respondent's issuance of an apparently premature notice of decision. Petitioner submitted no relevant findings of fact or conclusions of law in its PRO concerning Respondent's practice. Nor did the PRO cite to any evidence of record to support a finding concerning Respondent's practice. The deadline for submitting applications in response to the second RFP was February 6, 2004. Petitioner filed a written protest on February 2, 2004. Respondent stopped accepting applications in response to the second RFP in accordance with Subsection 120.57(3)(b), Florida Statutes (2003). The specifications for each RFP adequately disclose selection criteria to prospective applicants, including criteria to be used for interviews during the second round of evaluation. Petitioner's PRO includes no findings of fact or conclusions of law relevant to this issue. Nor does the PRO cite to any evidence of record that supports a finding concerning the issue. The two RFPs disclose selection criteria to prospective applicants in the same manner. Each RFP includes the following statement: Any applicant interested in providing either architectural or construction management services shall make application by submission of materials prescribed in the Project Information Packet. The Project Information Packet, additional project information, and the weights associated with each qualification and evaluation criteria can be obtained by contacting the Planning & construction Office at (813)272-4112 or via the Internet. . . . Each RFP contains a separate Internet address. Respondent published the foregoing statement in three area newspapers and on Respondent's official website. Petitioner received notice of the RFPs on the official website. The Project Information Packets include a list of the members of the Committee, a summary of Respondent's procedures for acquiring professional services, a two-page chart of the evaluation criteria, and a selection activity schedule. Respondent made the Project Information Packets available to prospective applicants in hard copy and electronically on Respondent's official web site. The Project Information Packets adequately identify and describe evaluation criteria and the weight assigned to each criterion, including those to be used during interviews. The evaluation criteria are not confusing or ambiguous. The language used to describe the criteria does not make it impossible for prospective applicants to determine the basis upon which the Committee will award points. Petitioner's PRO includes no findings of fact or conclusions of law relevant to this issue. Nor does the PRO cite to any evidence of record to support a finding that the criteria are confusing or ambiguous. DOAH previously approved Respondent's selection criteria. In RHC & Associates, Inc. v. Hillsborough County School Board, DOAH Case No. 02-3138RP (October 11, 2002), ALJ T. K. Wetherell, II, concluded that the Policy Manual is a valid exercise of delegated legislative authority. In RHC & Associates, Inc. v. Hillsborough County School Board, DOAH Case No. 02-4668BID (January 3, 2003), ALJ Wetherell concluded that the specification factors and weight assigned to each, comply with the CCNA and are not otherwise arbitrary, capricious, or contrary to competition. After the decisions in the two RHC cases, Respondent slightly adjusted the weights given to certain criteria in order to increase minority and small business participation. Respondent made the adjustments after consulting with the NAACP. In relevant part, Respondent increased the weight given for an applicant's resume from 20 to 25 points. Respondent increased the weight given for recent volume of business with Respondent from 5 to 10 points. Respondent decreased the weight given for Project/Applicant Correlation from 25 to 15 points. The changes to the weights assigned to certain evaluation criteria after the two RHC cases comply with the CCNA, are not confusing or ambiguous, and do not make it impossible for prospective applicants to determine the basis for awarding points. The specifications for each RFP do not violate MBE guidelines in Subsection 287.055(3)(d), Florida Statutes (2003). Petitioner's PRO includes two proposed findings relevant to this issue. The two proposed findings are correct, but not material. Respondent has no practice or procedure in place to certify prospective applicants as MBEs. Rather, Respondent registers an applicant as an MBE if the applicant has been certified as an MBE by another agency. Both public and private agencies, sometimes for a fee to private consultants, certify MBE firms. The National Minority Association certifies companies as MBEs for a fee. Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003), contain no express requirement for Respondent to independently certify applicants as MBEs. The former provision requires Respondent to evaluate whether an applicant is a certified MBE. The latter provision requires Respondent to determine whether an applicant is qualified based on prescribed factors that include certification as an MBE. Petitioner cites no legal precedent that authorizes the ALJ to construe either statutory provision to require Respondent to independently certify applicants for either RFP. Petitioner cites no other legal authority to support its allegation that Respondent must independently certify applicants as MBEs. Respondent's policy of accepting MBE certifications by other agencies and private companies is reasonable. Independent certification would be redundant and a waste of taxpayer resources. Respondent relies on a company identified in the record as Morrison & Associates to conduct background checks on every applicant claiming to be certified as an MBE. In addition, Respondent's Office of Supplier Diversity maintains certification information for new contractors and subcontractors. The Office of Supplier Diversity confirmed for the Committee that each applicant claiming to be an MBE was in fact certified as an MBE. The Committee awards each applicant with an MBE certification the maximum number of points in that category. If Petitioner were to have submitted an application for either RFP, the Committee would have awarded Petitioner the maximum number of points available for MBE certification. Respondent properly determined the volume of work of each applicant in accordance with Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003). Respondent defines the phrase "recent volume of work" to mean the dollar amount of work performed for Respondent as a construction manager or architect within five years of the date of determination. Respondent awards the maximum number of points to applicants who have not performed any work for Respondent in the previous five years. Respondent determines recent volume of work based on information that does not include work performed by subcontractors. Petitioner has performed work for Respondent in the past, but only as a subcontractor. Petitioner last performed work for Respondent approximately seven years ago. If Petitioner were to have submitted an application for either RFP, the Committee would have awarded Petitioner the maximum number of points for recent volume of work. The information that the Committee would have reviewed would not have identified the work previously performed by Petitioner as a subcontractor. Moreover, the work was performed more than five years ago. Petitioner is a nonprevailing adverse party within the meaning of Section 120.595, Florida Statutes (2003). Petitioner failed to change the outcome of Respondent's proposed use of the RFPs to obtain construction and architectural services for the project. Petitioner did not participate in the proceeding for an improper purpose. The issue of whether Respondent must include the statutory notice in the RFP specifications is a justiciable issue of law. Petitioner's participation in this proceeding was not for a frivolous purpose. Respondent is the prevailing party in this proceeding. Respondent did not submit evidence concerning the amount of attorney's fees and costs that Respondent incurred to defend the written protests or the reasonableness of those fees and costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent issue a Final Order dismissing the two protests. DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2004. COPIES FURNISHED: W. Crosby Few, Esquire Few & Ayala 501 East Kennedy Boulevard, Suite 1401 Tampa, Florida 33602 Arnold D. Levine, Esquire Levine, Hirsch, Segall, Mackenzie & Friedsman, P.A. 100 South Ashley Drive, Suite 1600 Tampa, Florida 33602 Thomas Martin Gonzalez, Esquire Thompson, Sizemore & Gonzalez 501 East Kennedy Boulevard, Suite 1400 Post Office Box 639 Tampa, Florida 33602 Dr. Earl J. Lennard, Superintendent Hillsborough County School Board Post Office Box 3408 Tampa, Florida 33601-3408 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact As the parties stipulated, DOR "seeks to lease warehouse and office space in the City of Tallahassee in a privately owned building, and issued a request for proposals ('RFP') to seek competitive proposals. Four offerors responded with proposals; three of these were deemed responsive by the Department, and were evaluated by the Department on a variety of weighted evaluation criteria, only one of which was rental rate. . . . The Department proposes to award the lease to the Fregley/Oertel/Skelding Partnership ('F/O/S')." North of Gun Club, South of Springsax By unrecorded warranty deed dated January 2, 1989, Petitioner's Exhibit No. 1, Richard L. Pelham, individually, conveyed to petitioner Equity Resources, Inc., property fronting on Springhill Road in Tallahassee, Florida, on which a warehouse stands. The north boundary of petitioner's property inter-sects the western edge of the Springhill Road right-of-way at a point south of the intersection Springsax Street (which is a paved road) forms when it dead ends into Springhill Road. Petitioner's property does not abut the intersection. The distance between the northeast corner of petitioner's property and the Springsax Street intersection was variously put at "a few feet," (T.189), 100 feet, 100 to 200 feet, and 335 feet. The south boundary of petitioner's property intersects the western edge of the Springhill Road right-of-way at a point some distance north of the intersection between Springhill Road and a dirt road known as Gun Club Road. Specifications Disseminated Richard L. Pelham, who is president of petitioner Equity Resources, Inc., read in the newspaper about respondent's intention to lease office and warehouse space. At his request, Karen Allen, an employee of Universal Equities, Inc., another company with which Mr. Pelham is affiliated, picked up a copy of the request for proposal and bid proposal submittal form at a DOR office. The request for proposal and bid proposal submittal form package which Ms. Allen picked up included a paragraph describing the geographical boundaries of the service area in which DOR hoped to lease space. The paragraph states: Space to be located within or abutting the boundaries starting at the corner of U.S. 90 W. and Capital Circle Southwest (263) proceed South on Capital Circle to Orange Avenue to Springhill Road, South on Springhill to Springsax, East on Springsax to Northridge Road, South on Northridge to Ridge Road, East on Ridge Road to State Road 61 (Crawfordville Hwy), North on SR 61 to U.S. 27, North on U.S. 27 to West Tharpe Street, West on Tharpe Street to Capital Circle NW, south on Capital Circle to Tennessee Capital Boulevard, Southwest on Tennessee Capital Boulevard to U.S. 90 and East on U.S. 90 to Capital Circle Southwest (263). (See Map Attachment B) Petitioner's Exhibit No. 2, p. 8. Devoid of any markings purporting to represent boundaries, the map attached to the bid package Ms. Allen picked up depicted much of Tallahassee, including large areas outside the boundaries the quoted paragraph specified. Many of the request for proposal and bid proposal submittal form packages DOR distributed did include maps on which the area described in paragraph 14A on page eight was outlined. The map in the master package showed boundaries, but they had to be replicated manually on copies. For outlining, DOR employee(s) used an implement that leaves a yellow mark which most copying machines do not reproduce. Mr. Pelham asked Richard Gardner, who may or may not have been at the time an officer or employee of Equity Resources, Inc. (T.62), but who testified he was an officer as of the time of the hearing (T.63), to attend a preproposal conference. Mr. Gardner did attend without, however, taking with him either the request for proposal and bid proposal submittal form package Ms. Allen had obtained or his eyeglasses. After the conference concluded, he asked for a copy of the request for proposal and bid proposal submittal form package. Michael S. Partin, a senior management analyst for DOR, asked another DOR employee to make a copy. When this effort proved unsuccessful (the paper jammed and half pages were produced), he did it himself. After consulting the master bid package, Mr. Partin used a yellow marker to outline on the map he gave Mr. Gardner the area described in the request for proposals. Confusion Feigned Petitioner's Exhibit No. 4 is a copy of a map included in a bid package as Attachment B to a request for proposals. On it, somebody has drawn, with a yellow marker, a boundary that differs from the boundary drawn on the master map, but only in the vicinity of petitioner's property: instead of tracing Springhill Road south to Springsax Street and turning east, the boundary represented on Petitioner's Exhibit No. 4 proceeds south on Springhill Road, past petitioner's property, to Gun Club Road, and turns east there. Mr. Gardner testified that Petitioner's Exhibit No. 4 was the map given to him as part of the package he received after the preproposal conference. But Mr. Partin's contrary testimony that Petitioner's Exhibit No. 4 is not the map he gave Mr. Gardner has been credited. The map he gave Mr. Gardner "look[ed] like [Petitioner's] Exhibit No. 5." T.166. Petitioner's Exhibit No. 5 unambiguously depicts the boundary turning east from Springhill Road onto Springsax Street, in complete consonance with the verbal description. Mr. Gardner also testified that he understood from discussions with Mr. Partin that the boundary went south to Gun Club Road before turning, but this testimony has not been credited. Both Mr. Partin and Barbara Foster Phillips, who was present during the conversation, testified that nothing that was said could reasonably have been understood to mean this. The latter account has been accepted as truthful. Mr. Pelham's testimony that he relied on (a) map(s) as establishing (a) boundar(ies) inconsistent with the boundary clearly described in paragraph 14A on page eight of the request for proposal has not been credited. After determining the location of petitioner's property, DOR did not evaluate petitioner's proposal further, even though petitioner offered to lease space for significantly less than any other offeror, and even though petitioner's property was closer to other DOR facilities than many points within or abutting the boundaries set out in the request for proposals. Surprise at Hearing On the master map itself, Petitioner's Exhibit No. 5, because of the width of the marker as it turned the corner from Springhill Road onto Springsax Street, yellow extends down Springhill Road far enough south of Springsax Street that at least some of petitioner's property fronts on the yellowed portion of Springhill Road. Not until final hearing, however, did any bidder see the master map.
Recommendation It is, accordingly, RECOMMENDED: That respondent reject petitioner's proposal for lease No. 730:0106 as nonresponsive. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 4 and 13 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 1, 2, 7, 8, 9, 10 and 12 have been rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed findings of fact Nos. 5 and 6, no bidder saw the "master map" before the final hearing in the present case. Although the breadth of the marker yellowed Springhill Road below the intersection with Springsax Street, the turn onto Springsax Street is unambiguously depicted on the master map. With respect to petitioner's proposed finding of fact No. 3, unavailability of the legal description was not proven. With respect to petitioner's proposed findings of fact Nos. 11 and 14, the lease was to last five, not ten years. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6 through 20, 22, 23, and 25 through 29 have been adopted, in substance. With respect to respondent's proposed finding of fact No. 3, the evidence did not establish that DOR "determined a boundary area they felt offered the optimum number of properties." With respect to respondent's proposed finding of fact No. 21, Pelham testified both that the property did and that it did not abut the intersection. With respect to respondent's proposed finding of fact No. 24, the distance depends on the method of measurement. With respect to respondent's proposed findings of fact Nos. 30 and 31, Mr. Partin's subjective views are immaterial. Intervenor's proposed findings of fact Nos. 1 through 4, 7 through 13 and 16 through 24 have been adopted, in substance, insofar as material. With respect to intervenor's proposed findings of fact Nos. 5 and 6, Mr. Partin's subjective intent is immaterial. With respect to intervenor's proposed findings of fact Nos. 14 and 15, the distance depends on the method of measurement. Copies furnished: Gene T. Sellers, Esquire Department of Revenue Tallahassee, FL 32399-0100 William A. Friedlander, Esquire Equity Resources, Inc. 424 East Call Street Tallahassee, FL 32301 Kenneth G. Oertel, Esquire Oertel/Fregley/Sheldon Partnership 2700 Blairstone Road Tallahassee, FL 32301 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 William D. Moore, General Counsel Department of Revenue The Capitol, LL-10 Tallahassee, FL 32399-0250
Findings Of Fact On March 19, 1985 petitioner, Michael Scott Symons, became employed as a financial manager with the brokerage firm of Easter Guthmann & Kramer Securities, Inc. (EGK) at 7200 West Camino Real Street, Suite 200, Boca Raton, Florida. In connection with his employment Symons filed an application for registration as an associated person of EGK with respondent, Department of Banking & Finance, Division of Securities (Division). The application was received by the Division on or about March 19, 1985 and was deemed to be complete on April 18, 1985. On that portion of the application entitled "Personal History" Symons gave 5700 Grillet Place, S.W., Fort Myers, Florida 33907 as his home address. He identified EGK's address as being 7200 West Camino Real, Suite 200, Boca Raton, Florida 33433. Although Symons signed the application he stated that EGK had actually submitted the application on his behalf since it was a common practice for brokerage firms to do administrative work on behalf of their employees. This is consistent with an agency rule (3E-600.02(3), F.A.C.) which requires that a securities dealer file and countersign the application for registration on behalf of an associated person. On March 24, 1985, or shortly after he began employment with EGK, Symons moved into an apartment at 6091 Boca Colony Drive, Boca Raton, Florida 33427. Approximately one month later, he began renting Post Office Box 3299 in Boca Raton. Symons did not inform the Division of these changes in address, or otherwise amend his application. On or about July 12, 1985 a Division bureau chief spoke by telephone with the chief financial officer of EGK and asked if EGK would voluntarily withdraw Symons' application. Later that same day, an EGK vice-president telephoned the bureau chief and advised him the firm would not withdraw the application. On July 16, 1985, the Division prepared and dated an Order Denying Application for Registration as an Associated Person. The next day a Division attorney sent a copy by certified mail to Symons' at 5700 Grillett Place, S.W., Fort Myers, Florida. Because Symons' wife had previously provided the post office with a change of address form the envelope containing the order was forwarded from Fort Myers to Post Office Box 3229 in Boca Raton. Certified mail notices were thereafter placed in the box on July 24 and July 31. However, the mail was never claimed. On August 8, 1985 the envelope was returned to the Division. It was received in Tallahassee on August 12, 1985. There is no evidence that Symons was aware the order had been mailed or that he deliberately failed to claim the letter. The agency attorney similarly assumed that Symons had not received a copy. Accordingly, it is found that at this point in time Symon had no knowledge that the July 16 order-was entered, and had been mailed to him in Fort Myers and Boca Raton. On August 19, 1985 the Division attorney again sent a copy of the July 16 order by certified mail to 7200 West Camino Real, Suite 200, Boca Raton. This was the address of EGK. According to the attorney, it was her intention to mail the order to Symons, and not his employer. The order contained the following pertinent language on page 5: Respondent is advised that Respondent may request a hearing to be conducted in accordance with the provisions of Section 120.57, Florida Statutes. A request for such hearing must comply with the provisions of Rule 28-5.201, Florida Administrative Code, and must be filed within twenty-one (21) days after receipt of this order. Otherwise, Respondent will be deemed to have waived all rights to such hearing. The certified mail receipt for the envelope containing the order was apparently signed for by Charlie Shields, an EGK employee. 1/ It eventually reached the desk of EGK's chief financial officer, James Weber, in an unopened envelope on August 23, 1985. Weber opened the envelope and read the enclosed order. He noticed on page five of the order that there was a twenty-one day time frame in which an appeal of the agency denial could be made. Believing that the twenty-one day time frame began on July 16, Weber erroneously concluded that the time to request a hearing had already expired. This was probably because he had never before seen a denial order, and was not familiar with the procedures under Chapter 120, F.S. Weber then showed the order to Edward Guthmann, a principal and vice- president of EGK. Guthmann telephoned an out- of-state attorney seeking advice on how to proceed, and sent a copy of the order to the attorney on August 23. The attorney did not take any action, and returned the order to Guthmann on an undisclosed dated between late August and the middle of September. On September 17 Weber "came to the realization" that under any interpretation of the order the time frame in which to request a hearing had run. He then contacted petitioner's present counsel on September 17 to discuss obtaining legal representation for Symons. Symons has continued using that counsel since that time. A petition for hearing was eventually filed with respondent on October 1, 1985. This petition was denied by agency order entered on October 16, 1985 on the ground Symons had "constructive receipt and notice of the Denial Order at the time of its delivery by U.S. Certified Mail to Respondent's personal address on July 24 1985, and furthermore, deems Respondent to have received actual notice. . . on August 25, 1985, when the Denial Order was claimed and signed for at EGK's address as listed on the application." Neither Weber or Guthmann informed Symons prior to September 15 that they had received the Division order, or that the document even existed. They also did not advise him that they had contacted an out-of-state attorney in August in an effort to obtain advice. In this regard, petitioner had not authorized them to take any action with respect to the denial order, or to seek the advice of an attorney. Symons was unaware of the existence of the denial order prior to September 20, 1985 when he was shown a copy of the order by his employer. Had he been aware of the order prior to September 15, he would have filed a request for a hearing. Even though he did not specifically voice an objection to his employer opening his mail, Symons did not expressly authorize his employer to accept the order or any other notices from respondent. Indeed, Symons considered certified mail to be "a personal thing," and something that "an employer has (no) right to open."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that petitioner timely requested an administrative hearing to contest respondent's denial of his application for registration as an associated person. DONE and ORDERED this 4th day of December, 1986 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1986.
Findings Of Fact Based upon the joint stipulation of counsel and the pleadings filed in this cause, the following findings of fact are determined: Government Service Supply Corporation (GSSC) was a Florida corporation engaged in the business of supplying federal agencies with office supplies and related items. It was wholly owned by Krista Peterson. On an undisclosed date, Krista Peterson incorporated Aerotek Resources Corporation in the State of Virginia, and that entity became involved in supplying agencies in the State of Florida with general office supplies and computer equipment. Because an unrelated company claimed that the name "Aerotek" infringed on its trademark, on an undisclosed date, Aerotek Resources Corporation changed its name to Tekresources Services Corporation, the petitioner in this cause. David Peterson was formerly the vice-president of GSSC. His relationship to Krista Peterson, if any, is not of record. During the period from July 1, 1991, to November 30, 1993, David Peterson used United States General Services Administration (GSA) supplier contract numbers without authorization. He concealed the lack of authorization to use the numbers by making representations to government purchasing agents that he was authorized to use the GSA supplier numbers. On August 9, 1994, the United States Attorney for the Northern District of Florida filed an information charging David Peterson and GSSC with making a false statement in violation of Title 18, United States Code, Section 1001, a public entity crime. Thereafter, GSSC and Peterson pled guilty to the charge. Judgments of conviction were rendered by the United States District Court for the Northern District of Florida on November 4, 1994. As required by law, on June 12, 1995, Aerotek Resource Corporation made timely notification to respondent, Department of Management Services (DMS), and provided details of the convictions. After conducting an investigation, on July 26, 1996, DMS gave its notice of intent to place petitioner on the convicted vendor list on the theory that petitioner was "related" to GSSC through Krista Peterson's ownership of both corporations. Placement on the list forbids petitioner from doing business with the State of Florida. In mitigation, the parties have agreed that the federal government suffered no loss as a result of these illicit actions, and there was no intent to cause any loss or to sell or provide inferior products to the government. In addition, David Peterson paid a $16,000 fine, petitioner fully cooperated with both the federal government and the DMS in their respective investigations, and petitioner promptly notified DMS of the convictions. Finally, procedures have been implemented which are designed to prevent the recurrence of this conduct. Given these mitigating factors, the parties have agreed that it is not in the public interest to place petitioner on the convicted vendor list. Therefore, the petition should be approved.
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Respondent is an express package delivery and courier service. It operates both nationally and internationally. Important to its service is the ability of the company and its customers to accurately track packages throughout Respondent's delivery system and to maintain timely delivery of those packages. Petitioner is an African-American male. As an African- American, Petitioner is a protected person under chapter 760, Florida Statutes. Petitioner also served in the military and testified that he has been diagnosed with post-traumatic stress disorder (PTSD). However, while Petitioner was employed by Respondent, his supervisors had no knowledge of Petitioner's PTSD diagnosis or alleged disability. Similarly, they did not consider him to be disabled. Other than his testimony of having a diagnosis of PTSD, Petitioner offered no evidence of his condition and no evidence that Petitioner?s PTSD is a disability or handicap as defined under the ADA or chapter 760. Given this lack of evidence, Petitioner failed to demonstrate that he is a protected person for purposes of handicap and the allegations of the Petition for Relief related thereto should be dismissed. In 1996, Petitioner was employed by Respondent as a courier in Respondent?s Pensacola station. In 2008 and 2009, Petitioner was supervised by Pat Gaal, an Operations Manager at the Pensacola station. Mr. Gaal was supervised by Senior Manager Doug Nash who was stationed in Mobile, Alabama. Mr. Nash, in turn, was supervised by Randy King, Managing Director of Respondent?s River District. Mr. King's office was located in New Orleans, Louisiana. As a courier, returning on time to the station is important so that the trucks, which move packages on the next leg of their journey, can leave the station on time. Any delays in loading these trucks and leaving on time can have a domino effect down Respondent's delivery system. For that reason, the courier is required to notify dispatch or call the station regarding an anticipated late return. Additionally, a very important part of Petitioner?s job was to “scan[] packages according to prescribed procedures. . . .” “Scanning packages” refers to the practice of couriers scanning bar codes on packages assigned by Respondent?s system with a device called a “Power Pad.” The bar code allows Respondent to collect and process data regarding the location and status of those packages for use by Respondent and its customers. This tracking information and its accuracy is a very important component of Respondent's service to its customers and can become vital if mailing or delivery of a package is at issue when legal rights are in dispute. Because of this importance, Respondent has established a strict policy with severe penalties for employees who falsify data they put into the company's package tracking and processing system. Such falsification includes picking up packages and scanning them at a later time so that the pick-up time is inaccurate. Policy 2-5 of Respondent?s Acceptable Conduct Policy states that “an employee normally will be dismissed upon completion of an investigation confirming violations related to . . . [d]eliberate falsification of Company documents including but not limited to . . . delivery records. . . .” Additionally, the Employee Handbook lists “[d]eliberate falsification of company documents including but not limited to . . . delivery records . . .” as a discharge offense. As part of his employment with Respondent, Petitioner received an employee handbook. Petitioner also was trained by Respondent with regard to the Respondent?s falsification policy and with regard to the fact that falsification was a terminable offense. As recently as February 8, 2008, Petitioner signed a memorandum from Respondent?s Vice President, Ted Merida, explaining that falsification would result in termination. The memo stated, in part, that the “consequence of falsifying a document is termination, your management team has NO discretion or ability to deviate from the action required by policy, regardless of your tenure, . . . or whether your intentions were to serve the customer.” Additionally, on November 3, 2008, Petitioner signed a memorandum from Respondent?s vice president, Dave Leech, which reemphasized the Respondent's policy that falsification violations would result in termination. Couriers are generally assigned routes. Some routes are delivery or pick up routes only. Some routes combine these functions. On combined routes, the same driver delivers and picks up packages at the same location. In combined routing, deliveries and pickups are scheduled separately with deliveries generally occurring in the morning and pickups in the afternoon. Occasionally, a package might be available for pick up early when the courier is at a location making a delivery. Likewise, a package that was not scheduled for pick up might be available for pick up when the courier is at a location making a delivery. When packages are available early, the courier has the option to pick up the package when the courier is at the package location rather than returning later to the same location to pick up the package. However, these early pickups are required to be scanned when they are picked up so that the information on Respondent's tracking system is accurate. In the months preceding January 2009, Petitioner was assigned the downtown Pensacola route, denoted as the “528” Route. He typically worked four ten-hour shifts per week. On the days when Petitioner was not working, “swing drivers” would cover the 528 route. The 528 route was a “higher density” route compared to other routes because it was in a downtown area where deliveries and pick-ups at various locations are very close together. Because of the combined route and density, the 528 route often had packages that could be picked up earlier than their scheduled pick up time. Additionally, a package that was not scheduled to be picked up might be available for the driver to take when they were delivering packages to a given location. Petitioner was trained on the 528 route by Derrick McCrary, an African-American courier. When Mr. McCrary trained Petitioner, he instructed him that packages were required to be scanned immediately upon pick-up or within a few minutes of package pickup. Indeed, during this time, neither individual employed a practice of picking up packages in the morning and scanning them at a significantly later time. Once Petitioner became the regular driver on the 528 route, performance goals were established according to Petitioner?s performance on that route. Courier performance goals are tracked and reported package by package and stop by stop on FAMIS 129 reports. These reports include individual courier summary reports and "Planet Station" reports that chronologically track delivery and pick up information for a specific route. In December 2008, Petitioner returned late to the station on multiple occasions. The courier who had Petitioner?s route prior to Petitioner and swing couriers who covered Petitioner?s route on Petitioner?s days off did not have the same problem returning late to the station. Additionally, for the month of December 2008, Petitioner had the lowest on-road productivity numbers of any courier in the Pensacola station at 88.21 percent. Swing couriers, including Mr. McCrary, who covered Petitioner?s route on Petitioner?s days off did not have the same low productivity numbers as Petitioner. Petitioner called Synethia Bell and Adrian Simmons as witnesses. Both Ms. Bell and Mr. Simmons are African-American individuals who currently work as couriers in Respondent?s Pensacola station. Both Ms. Bell and Mr. Simmons testified that they are not aware of management at Respondent?s Pensacola station showing favoritism based on race, that they have not experienced any racially-discriminatory treatment by management, and that they did not witness Petitioner receiving any racially- discriminatory treatment by management. Petitioner's other witnesses were long-time past employees whose testimony was not relevant as to the facts or the time period of this case. Petitioner received a non-disciplinary online counseling from Pat Gaal stating that Petitioner?s on-road performance was “unacceptable” and “the lowest in the station.” Mr. Gaal also expressed concern regarding Petitioner?s repeated late returns to the station without notifying the proper person, as he was required to do. There was no evidence that Respondent's online counseling was not based in fact or was based on Petitioner's race. In January 2009, Pat Gaal was on vacation. Operation Managers Kurt Martin and Eric Perdue noticed during their routine review of the daily productivity reports that Petitioner had abnormally high and unachievable productivity numbers during the afternoon portion of his route. Additionally, they noted that pick-ups at different addresses were being shown as being only a minute apart. Such rapidity in pickups was also an impossible achievement given the locations for those pickups. When Pat Gaal returned from vacation, Mr. Martin and Mr. Perdue brought these daily productivity reports to Mr. Gaal's attention. Mr. Gaal analyzed FAMIS 129 reports and noted that Petitioner on sixty-one occasions between January 6, 2009 and January 14, 2009, had scanned packages in the afternoon that he had picked up in the morning. The reports did not show that any other courier was scanning packages in the afternoon that had been picked up in the morning. Indeed, contrary to Petitioner's assertion that late scanning was routinely practiced by other couriers, the testimony from all of Respondent's current employees was that they did not scan packages late and such practice was prohibited. In this case, the evidence was clear that Petitioner's action was a serious violation of Respondent's package processing policy and constituted falsification of records under that policy. Indeed, the amount of falsification by Respondent was the worst violation of the policy that Respondent had seen. Mr. Gaal asked Petitioner if he was scanning packages late. To his credit, Petitioner admitted to Mr. Gaal that he was picking up packages early in the day but not scanning them until hours later in the day. Petitioner also confirmed his admission in a written statement on the matter. On January 19, 2009, Petitioner was placed on investigative suspension. He was terminated by Mr. Gaal on January 21, 2009, for regular falsification of records in violation of Respondent?s Acceptable Conduct Policy. There was no substantive evidence that Petitioner?s race played a part in Pat Gaal?s treatment of Petitioner while he was employed by Respondent. Respondent?s employee policy provides a multi-step procedure for employees to challenge disciplinary actions with which they disagree. This policy is known as the Guaranteed Fair Treatment Procedure (GFT). Respondent's policy also provides a process to handle complaints of discriminatory treatment known as the Internal Equal Employment Procedure (IEEP). Both of these policies are posted at the Pensacola station, along with a poster entitled “Equal Employment Opportunity is the Law.” Petitioner was familiar with both of these processes. However, Petitioner never submitted an IEEP complaint to Respondent. Instead, Petitioner filed a GFT complaint in January 2009, to challenge his termination. Petitioner's GFT complaint did not include any allegations of discrimination. The GFT process provides an employee with three levels of review. Step 1 of the GFT process involves the decision of a Managing Director after consultation with the managers involved in the discipline, the complainant and applicable witnesses. In this case, Managing Director Randy King conducted a telephonic hearing with Petitioner and other witnesses. Again, Petitioner admitted to Mr. King that he employed a practice of making pickups early in the day but not scanning the packages until later in the day to help boost his productivity. Petitioner did not make any allegations of discrimination during the Step 1 review. After the Step 1 hearing, Mr. King reviewed a summary of a review of daily reports for every courier in Respondent?s Pensacola station. He did not find any other couriers employing Petitioner?s falsification practices. Mr. King upheld Petitioner's termination at Step 1 of the GFT process. There was no evidence that race played any part in Mr. King?s decision to uphold Petitioner?s termination at Step 1 of the GFT process. Petitioner elected to have his termination reviewed in Step 2 of the GFT process. Step 2 of the GFT process involves the review and decision by a Vice President or Senior Vice President of the company. Petitioner?s termination was upheld at Step 2 of the GFT process by Vice President David Leech. Again, there was no evidence that race played any part in Mr. Leech?s decision to uphold Petitioner?s termination at Step 2 of the GFT process. Petitioner then elected to have his termination reviewed in Step 3 of the GFT process. Step 3 of the GFT process, involves a review by the Appeals Board. The Appeals Board consists of a rotating group of Respondent?s senior officers who review the case based on the documents provided to them by Respondent?s Human Relations Compliance department. With regard to Petitioner?s Step 3 GFT appeal, the Appeals Board was not provided with any information regarding Petitioner?s race or disability status. Petitioner?s termination was upheld by the Appeals Board at Step 3. As with the other steps in the GFT process, there was no evidence that race played any part in the Appeal Board?s decision to uphold Petitioner?s termination at Step 3 of the GFT process. Petitioner contends that Ron Reaves, a white male formerly employed as a courier for Respondent, is a comparator for purposes of proving his discrimination claim. However, the evidence did not demonstrate that Reaves is a similarly-situated employee to Petitioner and the facts of this case. The evidence showed that Reaves had an exceptional "nearly spotless" employment record with Respondent and committed a single act of falsification on January 7, 2008, when he manually entered a tracking number into his Power Pad for a delivered package. Reaves? act bypassed the requirement that the recipient sign for the package. Pat Gaal terminated Reaves for this single instance of falsification and Reaves filed a GFT complaint opposing his termination. Reaves? termination was upheld by Managing Director Randy King at Step 1 of the GFT process. Mr. King saw Reaves? termination for falsification as being a “one-time event,” yet he upheld Reaves? termination. Likewise, Reaves? termination was upheld at Step 2 by Vice President David Leech. However, Reaves appealed the Step 2 GFT decision to Step 3, and the Appeals Board reinstated Reaves. The Appeals Board was not provided any information as to Reaves? race or disability status. Upon reinstatement, Reaves was issued a Warning Letter dated March 17, 2008, for the instance of falsification, stating that he had “improperly applied a Dex 2 residential release to a package requiring direct signature.” In January of 2006, Petitioner committed a falsification violation, almost identical to that committed by Reaves, when he manually entered a residential release, releasing the package without a signature when a direct signature was required. However, Petitioner was not terminated but received a Performance Reminder, which is comparable to a Warning Letter, from Manager Charles Marshall, dated January 25, 2006, stating that he had “used the approved FedEx Resi Release number” on a customer package when the package was clearly marked “Direct Signature Only.” Importantly, Respondent received more favorable treatment than Reaves since he was not terminated in 2006. On the other hand, the quantity and pattern of falsification for which Petitioner was terminated in 2009 was a more blatant violation of Respondent?s falsification policy than the instance of falsification for which Reaves was terminated and later reinstated by the Appeals Board. In fact, Petitioner's 2009 violation was not sufficiently similar in scope as to be comparable to Reaves? violation. No other comparative evidence was offered by Petitioner. Given these facts, the evidence does not demonstrate that Petitioner was the subject of an unlawful employment practice based on his race when he was terminated by Respondent, and the Petition for relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 2nd day of February, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2011. COPIES FURNISHED: Patricia Batts Federal Express Corporation 3660 Hacks Cross Road Memphis, Tennessee 38125 Floyd Middleton, Jr. 820 Maplewoods Drive Pensacola, Florida 32534 R. Clinton Saxton, Esquire Federal Express Corporation 3620 Hacks Cross Road Building B, Third Floor Memphis, Tennessee 38125 Ben J. Scott, Esquire Staff Attorney, Legal/Litigation 3620 Hacks Cross Road Building B, Third Floor Memphis, Tennessee 38125 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
