Findings Of Fact There are no issues of material fact in dispute. Respondent, Department of Children and Families (Department), pursuant to section 394.9151, Florida Statutes (2018),1/ has contracted with a private entity, Wellpath, LLC (Wellpath), to use and operate a facility, Florida Civil Commitment Center (FCCC), to comply with the requirements of chapter 394, part V (entitled “Involuntary Civil Commitment of Sexually Violent Predators”). Petitioners are persons subject to chapter 394, part V, and are confined in the FCCC. Petitioners allege that the FCCC Resident Handbook and internal memorandum are unpromulgated rules which are imposed on FCCC residents, and that the same are an improper exercise of delegated legislative authority as de facto agency rules that have not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes.
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating persons engaged in the business of private investigation. At all times material to the allegations of this case, Respondent was licensed as a class "CC" private investigator intern, license number CC97-00449. Respondent also holds a class "G" statewide firearms license, license number G97-01406. During some period prior to September 3, 1997, Respondent was employed by J.R. Investigative Agency. Mr. Onativia owns and operates J.R. Investigative Agency. In August 1997, Mr. Onativia filed a complaint with the Department that Respondent was conducting private investigations without a license. Ms. Robinson, an investigator for the Division of Licensing, was assigned to review the complaint. Ms. Robinson contacted Respondent and advised him that the agency had received a complaint that he was conducting investigations on his own without an agency license. Respondent admitted he was doing investigations but claimed Mr. Onativia knew of his activities. He further admitted to Ms. Robinson that he was doing investigations on his own for attorneys in order to support his family. Respondent had also admitted to the investigation activities to John Esposito. After Ms. Robinson confirmed the information with Mr. Esposito as to the admissions made by Respondent, investigation of the complaint stopped.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a Final Order revoking Respondent's class "CC" license. DONE AND ENTERED this 1st day of April, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 April, 1999. COPIES FURNISHED: Honorable Katherine Harris, Secretary of State Department of State The Capitol, Plaza 02 Tallahassee, Florida 32399-0250 Deborah K. Kearney, General Counsel Department of State The Capitol, Lower Level 10 Tallahassee, Florida 32399-0250 Steve Bensko, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 David C. Rash, Esquire Law Offices of Johnson and Rash 1509 Northeast Fourth Avenue Fort Lauderdale, Florida 33304
Findings Of Fact The United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention, is authorized by the Juvenile Justice and Delinquency Prevention Act of 1974, as amended, to provide monetary grants to states which can then provide grants and contracts to public and private agencies for education, training, research, prevention, diversion, treatment, and rehabilitation programs in the area of juvenile delinquency and programs to improve the juvenile justice system. Respondent has been designated the state planning agency responsible for the administration and implementation of Florida's programs pursuant to the federal Act. Respondent administers this program with the guidance of the Governor's Juvenile Justice and Delinquency Prevention Advisory Committee. The federal Act requires that at least 66 2/3% of the funds received by a state must be "passed through" to (1) units of general local government or combinations thereof; (2) programs of local private agencies to the extent such programs are consistent with the State Plan, except that direct funding of any local private agency by a state shall be permitted only if such agency requests such funding after it has applied for and been denied funding by any unit of general local government or combination thereof; or (3) programs of Indian tribes that perform law enforcement functions. The other 33 1/3% of the funds may be retained by the state, may be used to pay administrative and planning expenses, or may, at the discretion of the state, be awarded to any qualified applicant. Florida has chosen to "pass through" 82% of the federal funding instead of the 66 2/3% required by federal law. Florida uses the remainder of the funds (18%) to pay planning and administrative expenses. Respondent determined that since it would treat all of the grants as "pass through" money, proof of denial of local funding would be required of all applicants for funding except for applicants who were governmental agencies. Accordingly, the same criteria would be applied to all entities seeking funding. In preparation for announcing the instant request for proposals, Respondent conducted workshops around the state. A representative of Petitioner attended the workshop conducted on August 9, 1991, in West Palm Beach, Florida. Persons attending the workshop were permitted to ask questions regarding the forthcoming request for proposals and regarding proposals to be submitted in response thereto. The Department's request for proposals was released on September 9, and a copy was mailed to Petitioner on that date. The request for proposals established a deadline of October 4, 1991, for receipt of written questions concerning the request for proposals and a deadline of October 31, 1991, for receipt of all proposals submitted pursuant to the request for proposals. Page 9 of the request for proposals specifically set forth the procedures and deadlines by which any adversely affected person or firm could file a protest of either the specifications in the request for proposals or the subsequent award of grants. Section X on page 12 of the request for proposals reserved to the Department the right to reject any and all proposals and further provided that ". . . an application shall not be considered or scored if the application . . . [d]oes not contain evidence of a denial of local funding . . . (Governmental agencies are exempt) . . . ." Similarly, Section Z on page 12 of the request for proposals sets forth that all public and private agencies are eligible to receive awards and further provides on page 13 of the request for proposals as follows: 2. Pursuant to 42 U.S.C. Section 5633 (a)(5)(b), local private agencies must submit evidence that they have requested and have been denied funding from any units of general local government or combinations thereof. Such evidence shall be either a certified copy of meeting minutes reflecting a request and denial of funds within the current budget cycle or a letter of denial of funds reflecting such action or a letter from a County Administrator or Manager of a Municipality indicating the unavailability of funds. Failure to submit evidence of denial of local funding shall make the applicant ineligible for funding. Governmental agencies are not required to comply with this requirement. Similarly, Section V on page 19 of the request for proposals provides as follows: Proof of Denial of Funding (Non-Governmental Agencies Only) Pursuant to 42 U.S.C. Section 5633(a)(5)(b), local private agencies must submit evidence that they have requested and have been denied funding from any units of general local government or combinations thereof. Such evidence shall be either a certified copy of minutes of meetings reflecting a request and denial of funds within the current budget cycle or a letter of denial of funds reflecting such action or a letter from a County Administrator or Manager of a Municipality indicating the unavailability of funds. Failure to submit evidence of denial of local funding shall make the applicant ineligible for funding. Similarly, Appendix D to the request for proposals is the Essential Requirement Checklist which provides, introductorily, as follows: Applicants must indicate the application page where the required essential documents are found and must initial the checklist to verify that they have reviewed the application and have included the essential documents. Failure to complete and include any of the required essential documents will result in elimination of the application from further consideration for funding. Item numbered 6 on the Essential Requirement Checklist calls for the inclusion of evidence of denial of local funding, refers the reader to Section III, Z, where that requirement is discussed, and further states "Governmental Agencies are exempt." During the time period for submission of written questions regarding any of the terms contained in the request for proposals, the Department received seven written questions. Three of those questions involved the requirement for submitting proof of denial of local funding. Copies of the written answers to those questions were provided to all other known interested persons. Petitioner received copies of those letters. The Department's answers contained in those three letters pointed out the requirement that local private agencies submit evidence that they had requested and been denied funding from any unit of general local government or combination thereof because the funds to be awarded are not to be utilized to supplant local government funds. The letters further pointed out the minimum requirement for establishing proof of denial by submitting a certified copy of minutes of meetings or a letter from a county or municipal administrator or manager. Examples of appropriate units of local government were provided, with a caveat that the Department was attempting to be as flexible as possible. Lastly, the Department's written answers specifically included the following information: ". . . any nongovernmental applicant which does not supply the denial of funding documentation with their application will be rejected at the pre-screening phase. The U.S. Department of Justice has made it very clear that there are no exceptions to this condition." The Department received Petitioner's proposal on October 31, 1991, the last day for timely filing such proposals. According to its proposal, Youth Crime Watch of America is a nonprofit organization. Petitioner's program is patterned on the citizens crime watch program but is based in the school setting. Petitioner performs two main functions. First, school systems contact Petitioner, which then provides information and training for the setting up of a youth crime watch program in that school system's schools. Second, Petitioner co-sponsors an annual conference with the National Crime Prevention Council of Washington, D.C. Petitioner's proposal sought funds to hire a state coordinator, to hire a conference coordinator, and to pay for printing, travel, and conference expenses. Petitioner's proposal includes the Essential Requirement Checklist. Petitioner checked item numbered 6 to signify that evidence of denial of local funding was included, and stated that such evidence could be found on pages 37 and 38 of Petitioner's proposal. Petitioner's executive director initialled that entry to verify that the application had been reviewed and the essential documents had been included. Page 37 of Petitioner's proposal was a copy of a letter from the Florida Department of Education, a state agency, denying Petitioner's request for funding. Page 38 was a copy of a letter from the United States Department of Justice, a federal agency, denying funding for a proposal submitted by Petitioner. No other proof of denial of local funding was submitted by Petitioner, and, therefore, no evidence of denial of local funding was included in Petitioner's proposal. Page 21 of Petitioner's proposal contains a section entitled "Denial of Funding" which reads as follows: Due to the unique position of the Youth Crime Watch Program of America and it's [sic] affiliates, local funding denial stipulations do not apply for this grant application. All local funding goes directly to the local affiliates. YCWA has received small local contributions designated for use in the production of the Annual Conference. Those contributions are made at the time of the Conference and do not impact the General Operating Budget. YCWA did, however, recently apply for Federal Office of Juvenile Justice & Delinquency Prevention Funding and was denied. A copy of that denial is included in the appendices of this application. Accordingly, the text of Petitioner's proposal advised Respondent both that Respondent's local funding denial requirement did not apply to the Petitioner and that Petitioner had received small local contributions. The word "statewide" appears only one time in Petitioner's proposal. It is found on page 28 of the 42-page proposal in the job description for the National Youth Crime Prevention Conference coordinator and refers to student scholarships. However, on page 7 of Petitioner's proposal the text explains that Petitioner has brought its program to school districts in 34 counties in the state of Florida and that the annual conference which Petitioner co-sponsors is attended by persons from around the United States and from around the world. The Department employee assigned as the contact person for this particular grant program reviewed all proposals received in response to the Department's request for proposals. Specifically, she reviewed the Essential Requirement Checklist to verify that each proposal contained all essential documents. She determined that Petitioner's proposal failed to contain evidence of denial of local funding and that Petitioner's proposal further indicated that Petitioner had received some form of local funding. Petitioner's proposal was therefore disqualified and was not reviewed by the screening committee and then by the Governor's Juvenile Justice and Delinquency Prevention Advisory Committee. That Advisory Committee met on January 8, 1992, to review the recommendations of the screening committee and to make final funding decisions. By letter dated January 24, 1992, Petitioner was advised that its proposal was not considered because it failed to meet the essential requirement of proof of denial of local funding. Petitioner received that letter on January 29, 1992. By letter dated January 31, 1992, Petitioner advised Respondent that it intended to file a written protest. By letter dated February 6, 1992, Petitioner advised Respondent of the specific basis for the protest. In addition to Petitioner, two other applicants were rejected for lack of proof of denial of local funding. The State Plan defines local private agency as a private nonprofit agency or organization that provides program services within an identifiable unit or combination of units of general local government. The parties have stipulated that Petitioner was an eligible applicant to apply for a grant under the request for proposals, that Petitioner's request for a hearing was timely, and that Respondent did not act fraudulently or dishonestly in removing Petitioner's proposal from consideration by the screening committee and then by the Governor's Advisory Committee.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Petitioner's protest. DONE and ENTERED this 23rd day of April, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4-6 have been rejected as being unnecessary to the issues involved herein. Petitioner's proposed finding of fact numbered 7 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel, a conclusion of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-11 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: John Lisk, Esquire 3675 Justison Road Coconut Grove, Florida 33133 Linda Harris, Deputy General Counsel Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On June 19, 1991, Dale McClellan was convicted of a one count violation of the Sherman Anti-Trust Act for conduct that occurred on or before August 8, 1986. Dale McClellan's conviction arose out of an investigation initiated by the Florida Attorney General in 1987 into possible bid rigging of school requirements contracts in Florida by thirteen dairies and distributors. In 1988, the Attorney General filed a civil action against these 13 dairies and distributors. In 1987, the United States Attorney General began an investigation into the same conduct pursuant to the Sherman Anti-Trust Act. Pursuant to paragraphs 287.133(3)(a) and (b), Florida Statutes, M & B Products, Inc. and Dale McClellan made timely notification to the Department of Management Services (DMS) and provided details of the convictions. On September 6, 1995, DMS issued a notice of intent pursuant to Subparagraph 287.133(3)(e)1., Florida Statutes. On September 29, 1995, pursuant to Subparagraph 287.133(3)(e)2., Florida Statutes, M & B Products, Inc. and Dale McClellan timely filed a petition for formal administrative hearing pursuant to subsection 120.57(1), Florida Statutes, to determine whether it is in the public interest for M & B Products, Inc. and Dale McClellan to be placed on the State of Florida Convicted Vendor List. Subparagraph 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor upon the convicted vendor list. Section 287.133(3)(e)3.e., Florida Statutes, establishes "cooperation with a State or Federal investigation into a public entity case as a mitigating factor against placement on the convicted vendor list." Dale McClellan was notified of an Investigative Demand by the Attorney General's Office in 1987. On December 14, 1987, Phillip Hall, Esquire, a representative of the Attorney General, State of Florida, reviewed records of two companies operated by Dale McClellan. These records were voluntarily produced by Mr. McClellan. Subsequent to Phillip Hall reviewing business records of Dale McClellan, copies of a portion of said records were voluntarily provided to the Florida Attorney General's Office. Dale McClellan met with representatives of the Attorney General's Office in January of 1988 and gave a statement in cooperation of their investigation, to Richard Arnold, Esquire, and Assistant Attorney General Jerome Hoffman. In November 1987, Dale McClellan cooperated with the Federal Grand Jury in Atlanta, Georgia, producing ten (10) boxes of records in response to a subpoena directed at his business. In March 1991, prior to his conviction in Federal Court, Dale McClellan cooperated with Federal Prosecutors at a meeting arranged by them in Atlanta, Georgia. Section 287.133(3)(e)3.d., Florida Statutes, provides prompt payment of any damages or penalty as the result of the conviction as a mitigating factor against placement on the convicted vendor list. Dale McClellan paid a penalty of $2,500.00 imposed by Judge William Castagna, on June 19, 1991. Section 287.133(3)(e)3.e., Florida Statutes, establishes the nature and details of the public entity crime as a mitigatory factor. Dale McClellan's violation consisted of supplying milk to 11 schools in Hillsborough County, Florida, through his company, M & B Dairy. Dale McClellan in the 1985-86 school year supplied 210 cases of half-pint milk cartons per day at a gross profit of less than one cent per carton. M & B Dairy went out of business in 1988. Pet, Inc., Southland Corporation, Borden, Inc. and Land-O-Sun Dairies, Inc., defendants in the federal court case (each convicted and fined several million dollars, sold tens of millions of dollars worth of milk to schools and federal government installations. Dale McClellan's involvement, in comparison, was very minor. Section 287.133(e)(e)3.e., Florida Statutes, establishes disassociation from other persons or affiliates convicted of public entity crimes as a mitigating factor in determining whether to place a person or entity on the convicted vendor list. Dale McClellan has not associated with any person convicted of a public entity crime. Section 287.133(3)(e)e.g., Florida Statutes, establishes self policing by the person to prevent public entity crimes as a mitigating factor in determining whether to place a person or entity on the convicted vendor list. M & B Products, Inc. has instituted policies that prohibit any employee from discussing, even casually, the bidding on or bidding strategies concerning school requirements contracts. In addition, Dale McClellan has resigned as an officer in M & B Products, Inc. Section 287.133(3)(e)e.j., Florida Statutes, states that the need of public entities for additional competition in the procurement of goods and services in their respective markets is a mitigating factor in determining whether to place a person on the convicted vendor list. Since the conclusion of the State and Federal investigation, many suppliers and distributors have discontinued business and there is a great need for competition in this area. M & B Products, Inc. is a significant factor in providing such competition and has helped lower prices in the areas where it supplies his product. Section 287.133(3)(e)3.e., Florida Statutes, establishes good citizenship as a mitigating factor, in determining whether to place a person on the convicted vendor list. In May 1991, Dale McClellan received a Certificate of Recognition from the Hillsborough County Sheriff's Office for his support of law enforcement and crime prevention. Dale McClellan has assisted persons addicted to alcohol by helping through a church sponsored Alcoholics Anonymous program, and helped found "301 House," an AA program in East Hillsborough County. He is still active in helping and counselling alcoholics.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Community Health Charities of Florida (CHC), is entitled to an award of attorney's fees and costs as a "prevailing small business party" pursuant to Section 57.111, Florida Statutes (2008), by being a prevailing small business party in the underlying case of Community Health Charities of Florida, et. al v. Florida Department of Management Services, DOAH Case No. 07-3547, Recommended Order February 29, 2008; Final Order May 29, 2008. Also, at issue is whether the Respondent Agency's actions, with regard to the underlying case, were substantially justified or whether special circumstances exist which would render an award of attorney's fees and costs unjust.
Findings Of Fact This cause arose upon the filing of a motion or petition for attorney's fees and costs on July 22, 2008, by the Petitioners, CHC and the Charities (the American Liver Foundation, Cystic Fibrosis Foundation, Crohn's and Colitis Foundation, Prevent Blindness Florida, Children's Tumor Foundation, March of Dimes, Lupus Foundation of America, Florida Chapter, Florida Hospices and Palliative Care, Hemophilia Foundation of Greater Florida, National Parkinson Foundation, American Diabetes Association, Leukemia and Lymphoma Society, American Lung Association, ALS Association, Alzheimer's Association, Juvenile Diabetes Research Foundation, Arthritis Foundation, Florida SIDS Alliance, Sickle Cell Disease Association of Florida, Easter Seals Florida, St. Jude Children's Research Hospital, Muscular Dystrophy Association, Nami Florida, National Kidney Foundation, National Multiple Sclerosis Foundation, Huntington's Disease Society of America, and Association for Retarded Citizens). This attorney fee and cost motion was filed in connection with the above Charities having received distribution of undesignated contributions from the 2006 Florida State Employees' Charitable Campaign (FSECC). The Charities made application for the funds and then contested the initial decision of the Steering Committee charged with determining distribution of undesignated contributions (by fiscal agent area). Ultimately, after obtaining a Writ of Mandamus from the First District Court of Appeal, requiring an administrative proceeding and hearing before the Division of Administrative Hearings on the contested claims, the Charities received additional distribution of undesignated contributions. Those additional distributions represent an additional benefit the Charities received upon the entry of the Recommended Order and the Final Order in the underlying proceeding. Therefore, one Petitioner, CHC, in the motion for attorney's fees and costs asserts that it is thus a prevailing party and a small business for purposes of Section 57.111, Florida Statutes, and is entitled to an award of attorney's fees and costs. The Respondent is an Agency of the State of Florida with authority to establish an maintain the FSECC.1/ It administers the decision-making process involving distribution of undesignated funds and issued the Final Order in the original proceeding. The attorney fee and cost proceeding was initially assigned to Administrative Law Judge Charles Adams. Thereafter the case was re-assigned to Administrative Law Judge T. Kent Wetherell, II. He issued an Order, sua sponte, on July 29, 2008, instructing the Petitioners to show cause why the case should not be held in abeyance pending disposition of the appeal of the Final Order in Community Health Charities of Florida v. State of Florida, Department of Management Services, 1D08-3126, the appeal before the First District Court of Appeal. The Petitioners filed a response to the Order to Show Cause stating, in essence, that the issues preserved for appeal involved discreet claims under Section 120.56(4), Florida Statutes. The parties agreed that the portions of the Final Order in the underlying proceeding which granted undesignated fund distributions to the Charities were separable, and not the subject of the appeal to the First District Court of Appeal in the above-cited case. The parties thus stipulated that the case could proceed on the matter of fees and costs, notwithstanding the pending appeal. An Order was entered by Judge Wetherell on August 11, 2008, based upon the responses to the Order to Show Cause. The Order references the parties' agreement that the case could go forward notwithstanding the pending appeal of the Final Order in the underlying case and then, significantly, Judge Wetherell made the following finding: "a closer review of the motion [the motion seeking the award of attorney's fees and costs] reflects that the only Petitioner alleged to be a prevailing small business party entitled to an award of fees under that statute [Section 57.111, Florida Statutes] is Community Health Charities of Florida." Judge Wetherell thereupon proceeded to order that the case style be amended to identify Community Health Charities of Florida (CHC), as the "only Petitioner in this fee case." The Petitioner, CHC, is a Florida non-profit corporation that employs less than 25 full-time employees and has a net worth of less than two million dollars. It is a "federation" under the FSECC Act. A "federation" is defined as an umbrella agency that supplies "common fund raising, administrative and management services to . . . charitable constituent member organizations. . . ." Fla. Admin. Code R. 60L-39.0015(1)(j). Federations were required to file with the Committee (the Steering Committee) a Direct Local Certification Form, describing the direct services that each member charity provided in the various fiscal agent areas. In this capacity, the Petitioner CHC represented 27 member charities in the 2006 charitable campaign. Charitable organizations that provide "direct services in a local fiscal agent's area" are entitled to receive "the same percentage of undesignated funds as the percentage of designated funds they receive." § 110.181(2)(e), Fla. Stat. (2006). CHC is not a provider of services or direct services. Therefore, it, itself, did not receive any undesignated funds. The charitable organizations named above, are the entities which received undesignated funds related to direct services they provided in local fiscal agents' areas. Some received them through the initial decision of the subject Steering Committee, and some after the underlying administrative proceeding was litigated through Final Order. On February 28, 2007, the Steering Committee, under the Respondent's auspices, conducted a public meeting in which it found the charities named above provided direct services in 18 percent of the fiscal agent areas in which they had applied. The Committee therefore denied Charities their share of undesignated funds in the remaining fiscal agent areas. That Committee decision was announced by memorandum of March 12, 2007, which provided the Petitioners with a point of entry to dispute the initial decision in an administrative proceeding. On March 30, 2007, the Petitioners filed an Amended Petition which alleged that they had provided direct services in all the fiscal agent areas in which they applied for undesignated funds, and identified alleged deficiencies in the Committee's decision-making process. That Amended Petition was ultimately referred to the Division of Administrative Hearings for conduct of a formal proceeding, by Order of the First District Court of Appeal, requiring the Agency to refer the Amended Petition to the Division of Administrative Hearings. With the Amended Petition pending before the Division of Administrative Hearings, the Steering Committee called an unscheduled meeting on September 10, 2007, to further address the Petitioners' claims and re-visit the earlier decision denying some applications for undesignated funds. Thereafter, the Respondent changed its initial decision by increasing the percentages of fiscal agent areas where direct services were provided and undesignated funds awarded to the Petitioners, the Charities, as a result of the September 10, 2007, meeting. This percentage thus increased from 18 percent to 77 percent as a result of "additional review of material provided by Petitioners." The Respondent Agency ultimately rendered a Final Order that adopted the decision of the Statewide Steering Committee, approving 77 percent of the Petitioners' previous submittals, as well as the finding of the Administrative Law Judge with regard to the three additional member charities. The Respondent had maintained in the original proceeding that the Committee must limit its consideration to the Direct Local Certification Form. The Petitioners, on the other hand, argued that they were entitled to a de novo review of the Agency action before the Division of Administrative Hearings. Reserving ruling on that matter, Judge Adams permitted the Petitioners, at the Final Hearing, to introduce additional evidence of direct services provided in those fiscal agent areas in which their applications had been denied by the Committee. The issue of direct services was considered de novo before the Division. The judge considered not only the direct local services certification form, but also supporting evidence of direct services introduced by the Petitioners at the Final Hearing. On considering that evidence, the Administrative Law Judge found that three additional member charities, not previously approved by the Committee, had provided direct services, which entitled them to receive undesignated funds. The Final Order entered by the Respondent Agency adopted the Administrative Law Judge's ruling. No exceptions were filed to that Recommended Order, thus the Agency waived its appellate rights with respect to any issue it might have raised, and the Charities prevailed as to the relief they sought in the Amended Petition. In their affidavits filed with the Motion for Attorney's Fees and Costs on July 22, 2008, the attorneys Byrne and Hawkins, for the above-named Petitioners, stated that they were "retained" by those Petitioners, meaning all the above- named charities and also the Petitioner CHC. In the affidavits they stated that those Petitioners "incurred" the attorney's fees and costs to which the affidavits relate. As stated above, the attorney's fee Motion was filed and joined-in by all the above-named charities and CHC. The Petitioners in the underlying case, which was appealed to the First District Court of Appeal, were all the above-named charities and CHC. Nonetheless, the Petitioner CHC took the position at the hearing in this proceeding that an agreement or understanding existed with the affiliate charities, whereby CHC would bear the attorney's fees and costs on behalf of all the affiliate charities. CHC has an agreement concerning how revenue it receives is shared with its national office and member charities. CHC pays its national office a percentage of revenue. It sends money to the national office and the national office also sends an allocation of funds to CHC. CHC is a member of the Arlington, Virginia-based Community Health Charities of America. For the fiscal year beginning July 1, 2006, CHC withheld 25 percent of charitable donations from Florida employees to its affiliated charities as its fee. This is the maximum amount authorized by Florida law in order for it to participate in the FSECC. § 110.181(1)(h)1., Fla. Stat. (2006). In the 2006 campaign at issue, CHC did not file an application in its own name to the Steering Committee for receipt of undesignated funds. As Ms. Cooper testified "we did not apply." CHC received no allocation or award of undesignated funds either in the initial Steering Committee consideration process or as a result of the underlying proceeding through the Agency's Final Order. All the undesignated fund distributions were made to the charities themselves, who were the entities who filed applications to the Steering Committee seeking receipt of undesignated funds. The Steering Committee, which made the initial decisions about distribution of undesignated funds is composed of appointed volunteers. The members of the committee are not compensated and do not have support staff to assist them in their fact-finding review of applications concerning receipt of undesignated funds. The committee members personally review all applications. Review of the applications takes many hours by each member of the committee, much more time than is spent in actual committee meetings. The combined net worth and number of employees of some or all of the Charities, was not established. It was not established that the net worth of one or more of the charities filing this Motion for Attorney's Fees and participating as Petitioners in the underlying case, is less than two million dollars, nor that one or more of them have less than 25 employees. The legislature appropriated $17,000.00 dollars to DMS to administer the FSECC for 2006. Substantially more than that appropriated sum has been expended by DMS to administer the campaign. DMS has no insurance coverage which would pay attorney's fees and costs if they were awarded. DMS is also subject to at least a four percent budget "hold back" for the current fiscal year and is contemplating laying off employees in January 2009, due to budget reductions. If DMS is ordered to pay attorney's fees and costs to CHC, DMS will bill the fiscal agent, United Way, for payment of those amounts from the FSECC charitable contributions. Contrary to the situation with the Petitioner Charities, who made the original filing of the Amended Petition in the underlying case and were named as parties in the filing of the Motion for Attorney's Fees at issue in this case, CHC did offer evidence that its net worth was less than two million dollars and that it had less than 25 employees. Thus, it established this threshold for being considered a small business party. It is also true, however, that the Recommended Order from the Administrative Law Judge and the Final Order from the Agency in the underlying proceeding specifically make no mention of CHC as a prevailing party and award nothing of benefit to CHC, as opposed to the other actual charities, who filed the subject applications.
The Issue Whether Respondent's proposed award of a contract to Intervenor is contrary to statutes, rules, policies, or the bid specifications, pursuant to Section 120.57(3)(f), Florida Statutes.
Findings Of Fact On January 14, 2003, Respondent advertised for bids by way of an invitation to bid (ITB) for Contract Number E3C42, Maintenance Financial Project Number 40952917201. This would be a "Push Button" contract for the replacement of damaged guardrails along various roadways in Okaloosa and Walton Counties. Pursuant to this Contract, the successful bidder would respond upon notice, and repair or replace guardrails, or take other measures to ensure safety of the traveling public. The bid solicitation and contract were issued pursuant to Section 337.11, Florida Statutes. All bidders had to certify compliance with Florida Statutes and other applicable law, and all contractors were held to strict compliance with all legal requirements. There were no protests to the terms and conditions of the bid solicitation. The instant challenge does not allege non-compliance with the statutes or terms of the ITB generally. The challenge is whether award of the bid to Intervenor, as a non-profit corporation, is "contrary to competition." This maintenance contract does not require that the contractor be pre-qualified pursuant to Section 334.14, Florida Statutes, and Rule Chapter 14-22, Florida Administrative Code. Four bidders responded to the solicitation, with the apparent low bidder being Intervenor, and the apparent second low bidder being Petitioner. Respondent posted its intended award of the contract to Intervenor, and Petitioner timely filed a protest that initiated this proceeding. Intervenor is a not-for-profit corporation created under the provisions of Chapter 617, Florida Statutes. As such, pursuant to Sections 617.0301 and 617.2001, Florida Statutes, Intervenor can engage in any lawful purpose not for pecuniary profit. As a not-for-profit corporation, Intervenor may receive certain tax breaks and other economic advantages not enjoyed by a for-profit corporation. Petitioner is a for-profit corporation. No evidence exists that Intervenor is not capable and responsible to perform the work. Intervenor is qualified to contract with Respondent for the performance of work related to the construction and maintenance of transportation-related facilities by youths enrolled in youth work experience programs, pursuant to Section 334.351, Florida Statutes. Respondent spends appropriations under this section, and Intervenor is the recipient of such contracts. However, the instant contract will not be let under Section 334.351, Florida Statutes, but pursuant to Section 337.11, Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the protest filed by Petitioner be dismissed and Respondent shall award the subject contract to Intervenor. DONE AND ENTERED this 24th day of July, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 24th day of July, 2003. COPIES FURNISHED: John C. Bottcher, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32308 Timothy Patrick Driscoll, Esquire Timothy Patrick Driscoll, P.A. 101 First Avenue South, Suite 340 St. Petersburg, Florida 33701 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact The only issue raised as to whether the Petitioner's application for a private investigative agency license should be granted, is whether or not he has the experience required by law. The Petitioner has received an Associate of Arts degree from Palm Beach Community College. His primary area of study was law enforcement, including courses in search and seizure and investigations. In 1974 the Petitioner received a Bachelor's degree in Criminology from the Florida State University. At Florida State he took courses in criminal investigations, constitutional law, government, psychology, and sociology. While the Petitioner's course work does not constitute experience in the area of private investigations, it is relevant to his qualifications to serve in that capacity. Prior to his attending college, and during the time that he attended college, the Petitioner worked as a security officer for several department stores. He worked approximately four months for Fountain's Department Store in Palm Beach County, and approximately twelve months at Gayfer's Department Store in Tallahassee, Florida, At Gayfer's his employment was part-time, however, he worked thirty to forty hours per week. After graduation from college the Petitioner worked approximately five months at a Sears Department Store in Palm Beach County on a full-time basis. Four months of that experience was as a security officer. As a security officer at the department stores, the Petitioner was present at the stores and observed customers. He apprehended shoplifters, took statements from them, and testified against them in court. He also investigated cash register shortages and other indications of employee dishonesty. An investigator for the Division of Licensing testified that in his opinion the department store experience would not constitute experience in the area of investigations, but rather should be considered security work. The agent did testify, however, that a policeman who worked on a "beat" would be considered to have investigative experience. The work that the Petitioner performed at the department stores is directly analogous to the work that a policeman would perform, and his experience is directly related to the field of private investigations, and should be included in his experience. From March, 1976 through February, 1977 the Petitioner was employed by the Wackenhut Corporation. Since March, 1977 the Petitioner has been employed by Damron Investigative Agency. The work that the Petitioner has performed with these two employers is directly related to the field of investigations. At the time of the hearing the Petitioner had a total of 26 months of experience working for these two employers.
The Issue Whether Respondent committed the offenses alleged and, if so, what disciplinary action should imposed.
Findings Of Fact Respondent, Timothy Ingold, has been employed by the PCSO for seventeen years. In November 1994, Ingold was a sergeant with the PCSO, a position in which he had worked since 1993. On November 19, 1994, Ingold worked the shift which began about midnight and included the early morning hours of November 20, 1994. On this particular evening, Ingold was assigned to Squad Two in the Pinellas Park/Largo area. This assignment required Ingold to supervise six deputies. Ingold is the current president of Local Lodge 43 of the Fraternal Organization of Police (FOP) and has served in this capacity for eight years. As president of FOP, Ingold sometimes files legal actions against the Sheriff on behalf of deputies. Robert Paver has been general counsel to the FOP Local Lodge 43 for approximately seven (7) years and is considered by Ingold to be a personal friend. In the fall of 1994, Mr. Paver was married to Michelle Paver. Ingold knew Michelle Paver because prior to November 1994, Ingold and his wife sometimes socialized with Robert Paver and his wife, Michelle Paver. Prior to November 1994, Mr. Paver confided in Ingold about marital problems he was experiencing with Michelle Paver. This included issues relating to Mrs. Paver's relationship with some of her students. The events which are the subject of this case occurred during the late evening hours of November 19, 1994, and into the early morning hours of November 20, 1994. Deputy Roger Reed was a deputy with the PCSO and on duty the evening and early morning of November 19 and 20, 1994. While on patrol in the early morning hours of November 20, 1994, Deputy Reed observed a white male run out to the highway. When the white male saw Deputy Reed's cruiser stop, he attempted to flee. Immediately thereafter, Deputy Reed turned his car around, chased the subject, and apprehended him. Deputy Reed investigated and detained the subject for suspicion of night prowling. During the course of this investigation on November 20, 1994, Deputy Reed learned that the subject was a sixteen year old juvenile. After his initial investigation, Deputy Reed made a radio request for supervisory assistance. When this request was made, Sergeant Scheffer, Deputy Reed's assigned supervisor, was busy and could not immediately respond to the request. Due to Sergeant Scheffer's unavailability, Ingold reported to the scene in response to Deputy Reed's request for supervisory assistance. When Ingold arrived at the scene, Deputy Reed was there along with the juvenile who was in the back seat of the cruiser. Also present at the scene were Pinellas Park police officer, Joseph Waulk; PCSO Deputy, Stephanie Archer; the juvenile's mother, Laura Hearn; and Michelle Paver. Upon Ingold's arrival at the scene, Deputy Reed conveyed to him the events that had occurred relative to the incident involving the juvenile. Ingold discussed with Deputy Reed the elements of a night prowling offense and advised Deputy Reed to arrest the juvenile for night prowling. Deputy Reed further indicated to Ingold that while interviewing the juvenile, he had come in contact with two women. According to Deputy Reed, one of the women was the juvenile's mother and the other woman had introduced herself to Deputy Reed as "Mrs. Robert Paver." Ingold recognized the woman as Michelle Paver, the wife of Robert Paver. During this conversation Deputy Reed indicated to Ingold that he suspected that "something" was going on between the juvenile and Mrs. Paver; that Mrs. Paver had claimed that she was the juvenile's “ROR” (release on recognizance) officer or had some type of custodial obligation or arrangement with respect to the juvenile and wanted him released to her; and that he believed Mrs. Paver was trying to intimidate him and influence the investigation by identifying herself as the wife of Robert Paver, president of the FOP. Based upon Deputy Reed's account of the events that had occurred, Ingold told Deputy Reed to put the information in a report and forward it to the PCSO's Crimes Against Children (CAC) Unit. The CAC Unit handles cases involving crimes perpetrated against juveniles, including crimes which involve sex between adults and juveniles. During his conversation with Deputy Reed, Ingold volunteered pertinent information about the Pavers including the fact that there was a pending divorce between the Pavers. Shortly after being called to the scene, Ingold also revealed information regarding the Pavers to Sergeant Ferdon. Specifically, Ingold told him about the Pavers' pending divorce and that, according to Mr. Paver, Michelle Paver had been observed one evening being out with a juvenile. After leaving the scene of the incident, Ingold drove north on 49th Street until he reached the PCSO's Technical Services Building. While driving to this facility, Ingold attempted to telephone Michelle Paver's estranged husband, Robert Paver. Ingold first attempted to reach Mr. Paver by calling him on his home telephone. After receiving no answer, Ingold left a message on the answering machine, "Pick it up." Ingold next attempted to reach Mr. Paver by calling his pager number. Finally, Ingold called Mr. Paver's house again, and after receiving no answer, left a message asking him to call Ingold. Ingold testified that the reason he called Mr. Paver was to obtain information on the ROR status of Mrs. Paver with regard to the juvenile and to have Mr. Paver to instruct his wife to "knock it off" with regard to her attempting to obstruct justice. The ROR status or custodial status of the juvenile in no way effected Ingold’s direction to Deputy Reed to arrest the juvenile and take him to jail. Shortly after Ingold left the scene, Sergeant Scheffer, Deputy Reed’s supervisor, arrived on the scene and assumed supervisory responsibilities with respect to the investigation. Deputy Reed took the juvenile to jail, but officials at the jail would not accept him. After Ingold's three unsuccessful attempts to contact Mr. Paver, Deputy Reed called Sergeant Ingold on the radio, saying that he needed to talk to him. Ingold agreed to meet Deputy Reed at a Shell station on the corner of 49th Street and Ulmerton Road in Largo. When they met at the Shell station shortly thereafter, Deputy Reed indicated to Ingold that the juvenile had told him that he had been having sexual intercourse with Michelle Paver. During the course of the conversation between Ingold and Deputy Reed at the Shell station, Mr. Paver called Ingold on Ingold's PCSO cellular telephone. Ingold advised Mr. Paver that he was busy and would have to call him back. Ingold then advised Deputy Reed to conduct a thorough interview of the juvenile and "to work this back through your sergeant." After meeting with Deputy Reed at the Shell station, Ingold received another call from Mr. Paver. During that conversation, Ingold informed Mr. Paver that Michelle Paver had been present at the time and location where a juvenile was arrested. Moreover, Ingold inquired as to whether Mrs. Paver had ROR status with regard to the juvenile and also advised Mr. Paver that Mrs. Paver was "obstructing justice" by using her husband's name and/or his association with the FOP. With regard to the inquiry regarding Michelle Paver's ROR status, Mr. Paver responded that "you know as much as I do." After failing to obtain this information from Mr. Paver, Ingold made no other attempts to acquire information about Mrs. Paver’s ROR status. Because of the suspicion of a possible sex crime involving Mrs. Paver and the juvenile, the PCSO's Crimes Against Children (CAC) Unit became involved in the case. Although first contacted about the case on November 20, 1994, the CAC did not begin its investigation until November 21, 1994, because the case failed to meet the criteria for immediate attention. Sergeant Stefanie Campbell of CAC received the case and also assigned Deputy Lori Fagan of that unit to the case. As part of the CAC Unit investigation, a decision was made to interview Ingold. Sergeant Campbell contacted Ingold and requested that he come in for an interview on November 23, 1994. In order to appear at the interview as requested, Ingold changed a previously scheduled commitment. The interview was conducted on November 23, 1994, by Sergeant Campbell and was attended by Deputy Fagan, who took notes during the interview. The meeting during which the interview was conducted lasted between forty- five minutes and one hour. Other than Deputy Fagan's notes, the meeting was not recorded. Deputy Fagan did not testify at hearing and her notes were not offered into evidence. The interview consisted of Sergeant Campbell asking questions to Sergeant Ingold. Ingold responded to all questions that were asked of him. At the conclusion of her questioning, Sergeant Campbell asked Ingold if he wanted to add anything to what he had already stated. Ingold did not have any other information to add to the interview. During the course of their friendship, Robert Paver had discussed with Ingold various concerns he had regarding Michelle Paver's conduct. Many of Mr. Paver's concerns that were shared with Ingold during the course of their friendship involved Michelle Paver's relationship with students that she taught and did not necessarily focus on one student. Prior to CAC interview, Mr. Paver had advised and expressed concern to Ingold about the following: (1) Mrs. Paver's having allowed a juvenile to spend the night at her residence; (2) Mrs. Paver's seeking some type of custodial arrangement regarding a child; (3) Mrs. Paver's socializing and spending a lot of time with one of her students could put her in a position where the student could make allegations against her; (4) Mrs. Paver's having been observed by a St. Petersburg Beach police officer with a male, who she later revealed to Mr. Paver was one of her students; and (5) the amount of money Mrs. Paver was spending on her students. During the CAC interview, Sergeant Campbell asked Ingold about his knowledge concerning Mrs. Paver's being followed by a private investigator. Ingold was not aware at the time of the CAC interview that a private investigator had been retained to follow Mrs. Paver. Therefore, any questions regarding his knowledge about a private investigator following Mrs. Paver could not be answered by Ingold. Although at the time of the interview Ingold had been informed by Mr. Paver that Mrs. Paver had been observed on the beach by a police officer, he did not connect this situation to a question from Sergeant Campbell about a private investigator. Ingold did, however, disclose during the CAC interview that Mrs. Paver had been observed on the beach with someone she later identified as one of her students. During the CAC interview, Ingold informed Sergeant Campbell and Deputy Fagan that he had been told that Mrs. Paver had sought some type of custodial status regarding a juvenile. With regard to gifts, although Ingold did not use the term gift, he told the CAC investigators that according to Mr. Paver, Michelle Paver spent a lot of time and money on some of her students. Also, Ingold volunteered to CAC investigators that because of the time and money Michelle Paver spent on her students, he and Mr. Paver referred to the students as her "pet projects." Moreover, during the CAC interview, Ingold told the investigators that Mr. Paver had expressed concern that Michelle Paver's socializing and spending a lot of time with one of her students could result in the student's making allegations against her. Ingold did not volunteer to the CAC investigators that Michelle Paver had been seen out with the juvenile arrested on November 20, 1994, prior to that date. However, even though Ingold had been told that Michelle Paver had been previously seen out with someone, it was not established that Ingold, in fact, knew whether that person was the juvenile involved in the November 20, 1994 incident. At some time prior to November 1994, Mr. Paver had indicated to Ingold that one of Mrs. Paver’s students had spent the night at her residence. Ingold had no knowledge of who the student was or the circumstances surrounding this event. However, during the interview, Ingold did not volunteer this information to the investigators nor did either of them ask him any questions regarding this matter. Based upon his conduct on November 20, 1994, and his perceived lack of cooperation with CAC investigators during the November 23, 1994 interview, an administrative investigation was commenced against Ingold. During the course of the investigation, sworn statements were taken by the Administrative Investigations Bureau. An investigative report was prepared and presented, without recommendation or conclusion, to Ingold's Chain of Command Board. The head of the Board was Major Quentin Vaughn. The Chain of Command Board considered the evidence, and withdrew a more serious charge against Ingold regarding a lack of truthfulness. However, consistent with the unanimous recommendation of the Chain of Command Board, the Sheriff charged Ingold with violating PCSO rules relating to security of agency business, cooperation, and performance of duty. Pursuant to PCSO General Orders B-15 and C-1, the disciplinary point calculation for Sergeant Ingold was fifty-five points. The range of discipline for fifty-five (55) points is from a five-day suspension to termination. The Chain of Command Board voted unanimously to recommend a five-day suspension and Sheriff Rice upheld this recommendation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Everett S. Rice, Pinellas County Florida, enter a final order (1) finding that Respondent Timothy Ingold violated PCSO Rules C-1, V, B, 9 and C-1,V C, 5b; (2) dismissing the charge that Respondent Ingold violated PCSO Rule C-1, V, C, 2; and (3) reducing Respondent's five-day suspension without pay to a three day suspension without pay. DONE and ENTERED this 23rd day of June, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 23rd day of June, 1997. COPIES FURNISHED: James M. Craig, Esquire 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 Edward D. Foreman, Esquire Suite 300 100 Second Avenue North St. Petersburg Florida 33701 William Repper, Chairperson Pinellas County Sheriff’s Civil Service Board Post Office Box 539 Clearwater, Florida 34617 Jean H. Kwall, Esquire Pinellas County Sheriff’s Office Post Office Drawer 2500 Largo, Florida 34649-2500 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616
Findings Of Fact Based upon the testimony of the witness, and the record in DOAH Case Number 91-5892C, the following findings of fact are made: Petitioner, a non attorney litigant, seeks an award of attorney's fees and costs exceeding $37,000 under Section 57.111, Florida Statutes (1991). Petitioner did not offer evidence that he expended 250 hours performing research and other preparation for the Administrative Hearing in DOAH Case Number 91-5892C, which was not held. Likewise, Petitioner did not offer evidence that $150.00 an hour, the rate which he seeks to be compensated, was a reasonable fee as evidenced by either the time, skill or the complexity of the issues involved in the above- referenced case. Finally, Petitioner did not present evidence which establishes that he is a small business party. While Petitioner referred to the fact that he, at times, does odd jobs for neighbors, there was no showing that he operated a business and, at best, he performed casual labor for neighbors. Petitioner admitted, during the hearing, that there was a criminal prosecution filed against him which was nolle prosequi by the local state attorney's office around May 13, 1992. On June 18, 1992, Respondent filed a Motion To Relinquish Jurisdiction asking that the Division of Administrative Hearings close its case file based on the fact that the abuse report, which was the focus of Case Number 91-5892C was reclassified to "closed without classification". That motion was granted and the Division's case file was closed. Respondent reclassified the report after the criminal charges were dropped due to evidence discovered during the course of the criminal investigation. Specifically, one of the key witnesses during the criminal case recanted the story which formed the basis of the criminal charge and the alleged victim admitted to being a problem child which resulted in strict disciplinary action being taken against him. As a result of the discipline, the alleged abuse victim concocted the abuse allegation. Respondent was substantially justified and had a reasonable factual basis to issue and classify the subject abuse report as proposed confirmed at the time that it was initiated (by Respondent). However, once the factual underpinnings of the criminal case were recanted by the alleged child victim, Respondent immediately took action to reclassify the report which obviated the necessity for holding a formal hearing in DOAH Case Number 91-5892C.
