The Issue Whether Respondent Banta is guilty of dishonest dealing, culpable negligence, or breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes, (1993). Whether Respondent is guilty of operating as a real estate broker without a valid and current license, in violation of Section 475.25(1)(e), Florida Statutes (1993). Whether Respondent is guilty of failing to provide written agency disclosure to a party in a real property transaction, in violation of Section 475.25(1)(q) and (1)(e), Florida Statutes (1993) and Rule 61J2-10.033, Florida Administrative Code.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0165881. As of March 31, 1992, the Respondent failed to renew his real estate broker’s license, for the 2-year period of April 1, 1992 to March 31, 1994. Renewal would have consisted of completing the required continuing education, paying the required fee, and sending the required form to the Department of Business and Professional Regulation. The Respondent’s license was delinquent after March 31, 1992. As of March 31, 1994, the Respondent had not renewed his broker’s license and his license remained delinquent. On May 9, 1994, the Respondent renewed his license, in order to make a claim for a commission. As of March 31, 1996, the Respondent failed to renew his license again. His license was delinquent after March 31, 1996, and was delinquent as of the hearing date. The Respondent operated as a real estate broker during the period of approximately February 1993 through May 1994, specifically including a period when his license was delinquent as “involuntary inactive.” Sam Morrow is a licensed real estate broker and is a real estate developer and home builder. Effective February 10, 1993, Respondent entered into an Independent Contractor Agreement with Florida’s Preferred Homes, Inc. (FPH), a company in which Morrow is a principal. Respondent was originally retained on a fixed salary basis for an indefinite term to assist in finishing a number of low-income housing tax credit apartment applications for tax credits. At the request of Morrow, Respondent assumed other duties. Respondent represented FPH, and other business entities of which Morrow was the principal, in other business dealing from February 10, 1993 through May 24, 1994, when Respondent was terminated. The Respondent received a fixed salary throughout the period of his association with Morrow with the promise of additional undefined compensation in the future. For the purposes of this matter, Respondent was an employee of FPH and was supervised by Morrow. Respondent’s association with Morrow was not an exclusive employment agreement. During this same period in February 1993, Morrow became engaged in a transaction involving affordable housing. The transaction involved the purchase of land, by a purchasing entity, the Community Housing Trust, Inc., a 501(c)(3) non-profit corporation, from the seller, Rouse Road Corporation. After this purchase the property was to be transferred to another corporation, of which Morrow was to be the principal along with another business partner, and affordable housing units would be constructed upon the land and then sold to the public. The structure of the purchasing and developing entities was complex, involving various public and private entities, including Orange County. Morrow was a principal and the overall coordinator of the entire project which came to be known as the Oak Grove Circle project. There was no specific agreement for the Respondent to receive any particular additional compensation for the Respondent’s services in the affordable housing project. Respondent was familiar with the property that the Rouse Road Corporation had for sale and brought it to the attention of Community Housing Trust, as a prospective purchaser. This particular property was suitable for purchase and development as an affordable housing project. Respondent facilitated the purchase and prepared the contract for sale and purchase which was executed by the parties: Community Housing Trust, as purchaser, and Rouse Road Corporation, as seller. The contract was executed on March 5, 1993 for the property later known as the Oak Grove Circle property. Respondent represented neither the purchaser nor the seller in the transaction. He considered himself a transactional broker. The contract indicates on its face that Respondent, J. Scott Banta, is the real estate broker in the transaction. The contract called for the payment of a 10% commission to the Respondent. Respondent was not at any time prior to or during the purchase and sale transaction, either an agent, employee, independent contractor or representative of the seller, Rouse Road Corporation. Respondent was not at any time prior to or during the purchase and sale transaction, either an agent, employee, independent contractor or representative of the purchaser, Community Housing Trust, Inc. In September 1993, Morrow formed a Florida corporation known as FPH Venture 2, Inc. He was the sole incorporator. During this period in the fall of 1993, certain negotiations took place regarding the structure and goals of FPH Venture 2, Inc. The principals of the firm were to be Sam Morrow and Long Farms North. All of the prospective partners agreed that because of the need for cash equity, the real estate commission on the Oak Grove Circle property would remain in the FPH Venture 2 proposed project. For this consideration Respondent expected to be a principal also. The goals for the FPH Venture 2 project were set out in some detail in a memorandum developed by the prospective venturers and typed by Respondent. Respondent was included as one of the principals. The goals memorandum provides that the 10% commission payable to Respondent on the Oak Grove Circle purchase and sale would be assigned by Respondent to FPH Venture 2 “for cash flow and total profit benefits.” Respondent’s understanding of the proposed FPH Venture 2 project was that he was to receive a one-third ownership participation in FPH Venture 2, Inc., which was to have included the proposed Oak Grove Circle project and another proposed project in Lakeland, Florida, in exchange for the prospective commission. The terms of Respondent’s proposed participation in FPH Venture 2 were never reduced to any form of written agreement. Nor was Respondent ever made a principal in the company or issued any stock, or otherwise given anything to evidence his interest in the proposed venture. The closing of the purchase and sale of the property, later known as the Oak Grove Circle property, as anticipated by the contract for sale and purchase, was consummated on May 19, 1994. James L. Bishop, vice-president of Community Housing Trust, Inc., executed the settlement statement which provided for payment of $28,000 real estate commission to J. Scott Banta from the seller’s proceeds of closing. The commission check was delivered to Respondent at the closing without objection. On the day after closing of the Oak Grove Circle purchase and sale, May 20, 1994, Respondent gave Morrow a memorandum suggesting a procedure for payment of the $28,000 commission into FPH Venture 2, Inc. On May 24, 1994, the matter culminated in a conversation between Respondent Banta and Morrow. Respondent requested Morrow reduce their agreement regarding his proposed participation in FPH Venture 2, Inc., to writing. Morrow refused to do so, and at 4:45 p.m. on the same day, terminated Respondent’s employment, stopped payment on Respondent’s consulting fee check for the prior week and changed the locks on his office with Respondent’s personal property still inside. Respondent has retained the commission from the sale of the Oak Grove Circle property. Morrow’s account of this business relationship with Respondent and the agreed disposition of the proceeds of the commission is not credible.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found guilty of violating Sections 475.25(1)(e) and (1)(q) and be found not guilty of violating Section 475.25(1)(b), Florida Statutes (1993). It is further recommended that Respondent be fined the sum of $1,000 and that his license be suspended for a period of three months, subject to reinstatement upon such reasonable conditions as the Florida Real Estate Commission shall require. RECOMMENDED this 8th day of January, 1997, at Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1997. COPIES FURNISHED: Steven D. Fieldman, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building - North Tower, Suite N308 Orlando, Florida 32801 Allen C.D. Scott, II, Esquire Scott & Scott, P.A. 99 Orange Street St. Augustine, Florida 32084 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation 400 West Robinson Street Hurston Building - North Tower, Suite N308 Orlando, Florida 32801
The Issue Whether Certificate of Need (CON) Application Number 9478 filed by Hernando HMA, Inc. (HMA or Hernando HMA), d/b/a Brooksville Regional Hospital (Brooksville Regional) for approval to replace and relocate its existing 91-bed hospital in Hernando County, Agency for Health Care Administration (AHCA) District 3, Subdistrict 6, meets the applicable criteria for approval.
Findings Of Fact The Agency for Health Care Administration (AHCA) is the state agency authorized to administer the certificate of need (CON) law in Florida. AHCA is the designated state health planning agency. See Subsections 408.034(1) and 408.035(1), Florida Statutes. AHCA Health Services Planning District 3 is composed of Hamilton, Suwannee, Lafayette, Dixie, Columbia, Gilchrist, Levy, Union, Bradford, Putnam, Alachua, Marion, Citrus, Hernando, Sumter, and Lake Counties. See Subsection 408.032(5), Florida Statutes. Within District 3, Hernando County is designated acute care subdistrict 6. The three acute care hospitals in the County are Hernando HMA, Inc., d/b/a Brooksville Regional Hospital (Brooksville Regional) which was previously operated under the name of Lykes Memorial Hospital, Spring Hill Regional Hospital (Spring Hill), and HCA Health Services of Florida, Inc., d/b/a Oak Hill Hospital (Oak Hill). HMA Hernando HMA is the applicant for CON Number 9478 to replace and relocate Brooksville Regional, an existing 91-bed hospital in Brooksville, Florida. Constructed over a 40-year time period to a maximum size of 166 beds, Brooksville Regional is currently licensed to operate 91 beds. In the early 1990s, 75 beds were transferred from Brooksville Regional to establish Spring Hill. Spring Hill is located in southwest Hernando County near the Hernando/Pasco County line. Health Management Associates, Inc., the parent of Hernando HMA, is a publicly traded for profit corporation, with headquarters in Naples, Florida. Hernando HMA leases and operates, under a single state license, both Brooksville Regional and Spring Hill. Both are owned by Hernando County. In 1998, the County entered into a 30-year lease agreement for HMA to assume the management of the hospitals which were then bankrupt. HMA acquires primarily non-urban area hospitals in need of capital and/or new management strategies to reverse patient out- migration. The corporation owns or operates 43 hospitals in 14 states, including 13 in Florida. HMA has rebuilt and replaced 8 of the 43 hospitals it has acquired since its establishment in 1977. In addition to Brooksville Regional and Spring Hill, in Hernando County, HMA also operates Pasco Regional Medical Center (Pasco Regional), in adjacent northeast Pasco County, in AHCA District 5. See Subsection 408.032(5), Florida Statutes. Pasco Regional, a 120-bed hospital located on U.S. Highway 301, in Dade City, Florida, serves residents of eastern Hernando and Pasco Counties who reside along the four-lane corridor, in the communities of San Antonio, St. Leo, Trilby, Lacoochee, Ridge Manor, Dade City, Zephyrhills, and Wesley Chapel. Because of the emergency medical transport policy of taking patients to the nearest hospital, over 85% of those transported from eastern Hernando County are taken to Pasco County hospital emergency rooms. Hernando HMA's 1998 lease agreement with Hernando County required HMA to pay the debts necessary for the hospitals to emerge from bankruptcy, to provide Medicaid and charity care for Hernando County residents, and to provide $25 million in capital improvements to the two hospitals. To date, $15 million has been spent, $7 million for improvements to Brooksville Regional and $8 million for Spring Hill. Under the terms of the lease, the proposal to relocate the hospital required County approval. At a meeting held on September 25, 2001, Hernando County Commissioners vote unanimously to allow the filing of CON Number 9478. Hernando HMA proposes to replace and relocate Brooksville Regional to a 95-acre site on which it has a purchase option for $25,000 an acre. The total estimated project cost is $52 million, $33 million of that for construction. The parcel is located at the intersection of Lykes Dublin Road and a four-lane stretch of State Road 50. The proposed new site is 2.7 miles west of the existing site and 1.8 miles west of Cobb Road where the southern Brooksville City bypass of State Road 50 ends. HMA has agreed to donate the hospital, and approximately 25 acres of underlying and surrounding land to Hernando County. HMA will continue, under the terms of the lease, to manage the hospital, and also plans to build medical offices on the remainder of the parcel of land. Brooksville Regional is currently located, on approximately 11 acres on Ponce De Leon Boulevard in downtown Brooksville, a mile east of the State Road 50 bypass and one- tenth of a mile from U.S. Highway 41 which is being increased from four to six lanes. The City of Brooksville opposes the relocation of the hospital to the new site which is 1.5 miles beyond the city limits. Oak Hill Oak Hill is a 204-bed hospital, located just off State Road 50, in western Hernando County. Oak Hill was constructed 18 years ago on a 40-acre campus which includes two medical office buildings, related structures for staff offices and plant operations, and a cancer institute. Oak Hill is approximately five miles west of Brooksville's proposed new site, and eight miles west of its existing location. Oak Hill, like many Florida hospitals, experiences seasonal variations in occupancy. Typically, utilization reaches up to 90% in the first quarter of the year and goes down to 60% in the fall. Occupancy rates have been growing approximately 4% a year from 1997 to 2000, but from 2000 to 2001, patient days at Oak Hill increased 8%. Oak Hill has also recently received CON approval to establish an open heart surgery program, which is expected to reverse the out-migration of open heart surgery and other cardiac patients, primarily to another HCA facility, Bayonet Point in Pasco County. Bayonet Point is 17 miles or a 30-minute drive from Oak Hill. With the anticipated reversal of some out- migration, and a 2% annual increase in patient days, Oak Hill will have over 100% occupancy in the first quarter of 2005, going down to 74% occupancy in the fall of that year. Oak Hill opposes the proposal to relocate Brooksville Regional. Oak Hill asserts (1) that the proposed new location is less desirable than alternative sites suggested by the City of Brooksville; (2) that Brooksville Regional failed to demonstrate that replacement rather than renovation of the existing building is necessary; (3) that the proposed site will decrease access for residents in eastern Hernando County; and (4) that the replacement and relocation will adversely impact Oak Hill. The published fixed need pool for the subdistrict indicated no need for additional acute care beds. Brooksville Regional's proposal to relocate, but not add beds, is not inconsistent with the fixed need pool. CON review is required and is not expedited in this case because Brooksville Regional is proposing to relocate to a different site which is more than one mile from its current site. Review criteria The parties, in a prehearing stipulation, agreed that Brooksville Regional and Oak Hill have good records of providing quality care and can be expected to continue, as required by Subsections 408.035(2) and (3), Florida Statutes (2001). The parties agreed that Brooksville Regional's staffing projections are reasonable and sufficient based on its projected utilization, but Oak Hill disputed the accuracy of the utilization projections. The parties agreed that the design and schematic drawings for the new hospital are reasonable. The parties acknowledged that there will be an adverse impact on Oak Hill as a result of a loss of some employees, physicians, and patients, the magnitude of which has to be considered under Subsection 408.035(9), Florida Statutes (2001). The parties stipulated that Brooksville Regional has sufficient resources, including personnel and funds, to accomplish the project and operate the facility, as required by Subsection 408.035(6), Florida Statutes (2001). The parties agreed that Subsection 408.035(5), related to the needs of research and educational facilities; and Subsection 408.035(12), Florida Statutes (2001), related to nursing home beds, are not at issue in this proceeding. The parties stipulated that, at issue, are the criteria in Subsections 408.035(1), (2), (4), (7), (8), (9), (10), (11); and Subsections 408.037(1)(b)3. and (c), Florida Statutes (2001); and Florida Administrative Code Rules 59C-1.008(3) and (5), 59C- 1.030(2)(a) through (f), and 59C-1.038(6)(a). District health plan District 3 health plan criteria related to the establishment or expansion of services, the establishment of services in a community with no current service, the addition of beds, and the establishment of new facilities are not applicable to this project. Oak Hill's health planning consultant noted, however, that criteria related to bed transfers could also relate to a proposal to relocate an entire hospital. Those considerations include whether Medicare and private pay markets of disproportionate share charity and Medicaid hospitals will be adversely affected, whether access generally, and access particularly for Medicaid and indigent patients, or other traditionally underserved groups, will be improved. The criteria also overlap those in other applicable statutes and rules. See also Subsections 408.035(2), (7), and (11), Florida Statutes (2001); Rule 59C-1.038(6)(a) and Rule 59C-1.030(2)(a) through (f), Florida Administrative Code. Other relevant considerations include whether the transfer is needed and is more cost-efficient than renovation or expansion of the existing facility, and whether the proposal is financially feasible. See also Subsections 408.035(1), (4), (8), (9), and (10), Florida Statutes (2001). Medicaid and indigent care Hernando HMA, at Brooksville Regional and Spring Hill combined, provided approximately 71% of total charity care in the County in 2000, and 79% in 2001. Brooksville Regional is a disproportionate share provider of Medicaid, having provided approximately 8% of its total care to Medicaid patients. Brooksville Regional separately provided more Medicare, but half as much Medicaid as Spring Hill which, unlike Brooksville Regional, has obstetrics and neonatal intensive care programs which typically provide services to a large number of economically disadvantaged mothers and newborns. Oak Hill provided the remaining 20 to 30 percent of the charity care in Hernando County. Approximately 6% of Oak Hill's patients are in the Medicaid payor category, but Oak Hill is not a disproportionate share provider. Oak Hill provided almost 2% of its total revenues for charity care in 2000, and its Medicaid care increased from approximately $7.4 million in 2000, to $12.3 million in 2001. Although Hernando HMA did not offer a CON condition related to a specific level of Medicaid and charity care, its historic levels and Hernando County's continued ownership of the hospital provide the assurances required by the criteria. Geographical access Hernando County had a population of 130,810 people in 2,000, which increased to 136,552 in February of 2002, and is projected to be 159,400 people in 2010. There are 7,227 residents of the City of Brooksville, and 129,313 in unincorporated areas of the County. The population is more dense, more growth is projected, and more development is allowed under the comprehensive plan, in the central and western portions of the County. The population in the zip codes east of Interstate 75 was, in 2001, 4,301 of the total of 132,590. By 2010, the eastern area is projected to have 1,295 more people as compared to a projected increase of 19,401 people in areas west of Highway The projected areas of most intense population growth are in western Hernando County, clustered around U.S. Highway 19, to the north of State Road 50, and Highway 41, to the south of State Road 50. These are also areas with a high concentration of the population over 65 in a "retirement belt." East of Interstate 75, the population of Hernando County is more sparsely settled, younger, and has a lower mortality rate. More eastern area residents who need inpatient acute care, on an elective or emergency basis use the closest hospitals, Pasco Regional in Dade City and East Pasco Community Hospital (East Pasco) in Zephyrhills. In recent years, the trend towards utilization of Pasco county hospitals by eastern Hernando County residents has increased. Residents in the area also use hospitals in Lake County. The Hernando County Board of County Commissioners hired Tribrook Healthcare Consultants to report on the relocation proposal, including consideration of access for residents of eastern Hernando County. Residents of the three eastern zip codes accounted for 83 discharges from Hernando County hospitals from the second quarter of 1999 through the first quarter of 2000. Of those, 43% or 36 discharges were from Brooksville Regional, 18% or 15 from Spring Hill, and 39% or 32 from Oak Hill. For the year ending June 30, 2001, fifty-three discharges from Brooksville Regional and 28 from Oak Hill originated in the three eastern zip codes. From January through August 2001, the Hernando County Fire and Rescue service responded to 259 emergency health care calls from the eastern area, which represents approximately 5% of its total volume of 4,863 transports. Of the 259 transports, 109 people were taken to the emergency room (ER) at Brooksville Regional, and an equal number to the Pasco Regional ER, 14 to the East Pasco ER, and eight to the Oak Hill ER. Level one trauma patients, such as those with severe injuries from Interstate car accidents, are air lifted to trauma centers at Orlando hospitals, Tampa General Hospital or Bayfront Medical Center in St. Petersburg. If Brooksville Regional is relocated to the proposed new site, the increase in average peak travel times from various locations in the County will range from four to six minutes, for total average travel times ranging between 10 and 21 minutes. For the majority of the County residents, the average peak travel times will decrease, saving from one to six minutes, since the new location is closer to more densely populated residential areas. The acute care travel time goal is to have most residents able to reach the service within 30 minutes. The standard is already met and will, with Brooksville Regional's proposed relocation, continue to be met in District 3, Subdistrict 6. The residents of the County in the eastern areas will not be adversely affected by the relocation because relatively few use Brooksville Regional, and because, for many residents along the U.S. 301 corridor, Pasco Regional is more accessible. In addition, in return for approval of the Brooksville Regional relocation proposal, Hernando County required HMA to purchase an ambulance with advanced life support equipment to station in the eastern area near Interstate 75. There is credible evidence that, in some cases, the time it takes for paramedics to reach an emergency patient and begin treatment can be more important in saving lives than the actual travel time to a hospital emergency room. The conditions imposed by the County also required a $20,000 contribution from HMA for an indigent patient clinic and recruitment of a physician to staff a clinic in the eastern area. Relocation and replacement vs. renovation; alternative sites The proposed relocation site was criticized as inappropriate geologically. The property includes wetlands. Agricultural land across the street drains through a ditch under the road into a pond on one corner of the property. The elevation of the land at State Road 50 is 90 feet above sea level, increases to 95 feet but then slopes down to 65 feet at Wiscon Road. There are sinkhole-like depressions towards the back of the property. To meet state disaster preparedness standards, the elevation of a hospital must be equal to or above the major thoroughfare leading to the entrance. Brooksville Regional can be constructed on the proposed site with its main entrance facing and above the elevation of State Road 50. Other entrances can also be elevated using fill dirt. In general, the site meets the County land use criteria and has sufficient uplands. It also meets the criteria developed by HMA and its land planning consultant for (1) a minimum of 40 acres, (2) the potential for traffic signalization, (3) proximity to population growth centers, and (4) good visibility from passing traffic. Currently, Brooksville Regional is located on 11 acres in two separate three-story towers connected through a central building on the ground floor. The building is constructed from 10 to 15 feet below the street it faces, Ponce De Leon Boulevard. The entrance floods in heavy rains and lacks good visibility from street traffic. During the last four years, improvements at Brooksville Regional have included a new roof, lobby renovations, electrical upgrades in the operating room, the installation of new air handlers, and substantial investments in new equipment. Despite the improvements, the physical plant cannot be renovated to meet current codes and the layout of the building inevitably results in inefficiencies. Oak Hill noted, however, that the building is not technically violating any code but is "grandfathered." In addition, none of deficiencies affect Brooksville Regional's ability to provide excellent care, as measured by it score of 97 out of 100 on the most recent survey by the Joint Commission on Accreditation of Health Care Organizations. Patient corridors, in one tower, are less than eight feet wide as required by the National Life Safety Code. The building is not in compliance with the Americans With Disabilities Act (ADA). The parking area exceeds the level for a ramp to the building. Electrical, heating, ventilation and air conditioning (HVAC) systems require major upgrades to meet codes. Improvements are limited by the inadequately sized ceiling spaces for ductwork and pipes. The HVAC inefficiencies are estimated to cost Brooksville Regional from $400,000 to $500,000 a year. The major functional inefficiencies at Brooksville Regional result from the configuration in two separate towers. Staff must cross the central core and use one of two elevators in each tower to provide care, deliver food, remove trash and soiled linens, and transport patients. The elevators and corridors are shared with visitors. The separate towers divide patients into smaller, inefficient groupings which require more staff. One witness cited a cost estimate of $250,000 for a pedestrian walkway to connect the second and third floors of the two towers. Oak Hill criticized the absence of any other cost estimates for renovation of the existing building. If any major renovations are undertaken, all "grandfathered" code exemptions will be lost. The hospital would have to be closed and rebuilt. Inadequate space compromises patient privacy in various areas, including the emergency room and surgical suite. Spaces are inadequate for modern equipment in appropriate locations, so, for example, a CT scan, is located outside the radiology department, and 140 feet from the emergency room Brooksville Regional proposes to increase the size of the radiology department from approximately 6,400 square feet in the existing building to 16,000 square feet in the new building. Operating rooms currently range from 245 to 345 square feet as compared to code requirements of 450 to 600 square feet, with the larger rooms necessary to accommodate surgeries, such as orthopedics, which require larger equipment. The total size of surgical department is approximately 6,200 square feet while the guidelines suggest it should be 10,800 square feet. The new plan includes 6,300 square feet for the pharmacy and laboratory combined, which now occupy approximately 3,000 square feet. Overall, the new building will be almost 182,000 square feet, 65,000 square feet larger than the existing facility. The new plan also offers all private patient rooms, except one semi- private room, consistent with the current industry trend which is intended to allow family members to spend the night with patients. The design is taken from a prototype used by HMA to construct five other replacement hospitals in the last five years. Therefore, HMA is certain that the estimated construction cost is reasonably accurate and that the design works well for patients, visitors, and staff. Considering the deficiencies in the current structure which could only be corrected by closing the hospital completely and rebuilding it on site, taking five to six times as long as construction of a new facility, renovation of the existing structure is not a viable alternative. The City of Brooksville suggested other sites it favored over that selected by Brooksville Regional. The first parcel examined was 32 acres, not HMA's required minimum of 40 acres for the prototype. It would require assembling separate parcels and closing streets. The second, with 49 acres, is located on a two-lane city street and has a large pond in the center of the tract. A third, with 55 acres, would have to be shared with a post office carrier facility and lacks good visibility because of its location on a curve. The fourth site has 38 acres, but is too narrow for the prototype and is well below the elevation of State Road 50. The fifth tract is south of the fourth. It has 46 acres which, if acquired with the 38 acres to the north would be more than adequately sized, but is even lower than the parcel to the north and has a lake in the center. A sixth site with 66 acres is too long and narrow for the prototype. Finally, the City suggested assembling more parcels surrounding the existing building, which would require the acquisition of 38 to 40 lots, but that tract would be long and narrow. As previously noted, the hospital would have to close for reconstruction for a substantially longer period of time than required for new construction. The possibility that the City would donate a portion of an adjacent park was discussed but it was never formally offered. It is also currently the location of fire and police stations. That acquisition also would have required the condemnation of roads. Costs, financial feasibility, adverse impact and cost-effectiveness competition The cost for the new facility is estimated at $52 million. The parties stipulated that HMA can fund and operate the project. And, though previously bankrupt, Brooksville Regional had pre-tax profit of $5 million in 2001. The financial feasibility of the project was questioned. Oak Hill's expert criticized an underlying assumption that Medicare reimbursement would increase 6.4% from the first to second year. Taken in isolation, the increase looks unrealistic, but viewed over the entire time period from the base year to the second year of operation, the average annual rate of inflation is 2.5%, and is reasonable, as is the resulting projected Medicare revenues. Brooksville Regional's financial schedules included a management fee of 3% of gross revenues, although HMA has recently charged up to 4% to individual hospitals. HMA can assess a management fee of 3% rather than 4%, which one of its officers described as conservative considering that its actual corporate overhead is less than one percent of revenues. The assessment is based on tax considerations more than on actual costs. In addition to the management fee, Brooksville Regional's start-up costs, equipment costs, and depreciation costs were questioned as too low. Even when deducted from projected revenues, however, the additional expenses do not render the project financially infeasible. The proposed project is financially feasible considering either the CON-projected incremental increases in profit, $437 thousand in the first year and $868 thousand in the second year, or the revised estimates in HMA/Brooksville Regional's Exhibit 56. In Exhibit 56, the projected increase in profits, after relocation, are $860 thousand in the first year and $1.3 million in the second year. See Conclusion of Law 79. Brooksville Regional currently operates at a competitive disadvantage. In 1999, Brooksville Regional had 3,758 discharges, which increased to 3,794 in 2000. By contrast, Oak Hill increased its discharges from 10,575 in 1999, to 11,376 in 2000, and up to 12,743 in 2001. Excluding approximately 400 newborns, the increase in discharges is not entirely attributable to population growth. It also reflects Oak Hill's increase in market share. Overall occupancy rates were 80% at Spring Hill, 70% at Oak Hill, and 62% at Brooksville Regional in 2001. If the new hospital is built, Brooksville Regional projected it would have 405 more discharges in the first year of the project and 413 more in the second year, for an increase in revenue of $1.3 million in the second year. Oak Hill suggested the incremental increase in the number of patients was insufficient to justify a $52 million expenditure, yielding only $1.3 million or 2.5% return on investment, while HMA returns average approximately 15%. Oak Hill also maintained that Brooksville Regional underestimated the projected increase in discharges which would result from the proposed relocation and replacement. Oak Hill's expert estimated that Brooksville Regional would have 770 discharges in the first year and 1,146 in the second year of operations. If Brooksville Regional has more discharges, its revenues and profits will also be higher. Of those 1,146 year two discharges, Oak Hill estimated that it would have captured 823 admissions in the absence of a new Brooksville Regional hospital. Oak Hill's expert planner also asserted that the loss of patients would make Oak Hill less efficient and less cost- effective, and result in higher charges at Brooksville Regional. In addition to opening a new open heart surgery program, Oak Hill is undergoing $10 million in emergency room renovations. With these, Oak Hill is projected to reach between 82 and 83% average occupancy, in 2004 and 2005, before Brooksville Regional could become fully operational. The optimum is around 75%. Oak Hill argued that it could absorb the projected growth through the CON-exempt addition of 20 beds which would return occupancy to reasonable levels between 75 and 76%. The costs incurred for the addition, however, will be unnecessary if Brooksville Regional is more competitive and utilized more efficiently. As estimated by Oak Hill's expert, the proposed relocation of Brooksville Regional will leave Oak Hill with 12,243 discharges in 2005, and 12,265 discharges in 2006. Assuming the estimate is correct, Oak Hill will be at approximately the same volume as it currently experiences. There is no suggestion that its operations are not cost-effective or efficient at between 11,000 and 13,000 discharges. The pre-tax income decrement could be as high as $1.93 million. In the context of the Oak Hill budget of $17.1 million for 2002, and considering its competitive advantages, the adverse impact to Oak Hill is outweighed by the need for improvements at Brooksville Regional. Oak Hill's expert estimated that Brooksville Regional's projected volume was understated and that additional admissions should be expected based on more recent trends in utilization. If Brooksville Regional reached that volume, then revenues at the new facility would increase an additional $1.8 million, to a pretax total exceeding $6 million. The project is financially feasible, therefore, and the costs are justified to enhance the efficiency and competitiveness of Brooksville Regional. Oak Hill noted that the impact of the development of the entire 95-acre site is likely to be greater than that of the 25-acre hospital tract. Whether the same owner held the entire tract or not, there is no reason to expect that land surrounding a hospital would not become medical office buildings and related health care services. Oak Hill will face competition from a 60-bed Healthsouth comprehensive medical rehabilitation hospital currently under development approximately two miles away on State Road 50 in the direction of the Brooksville Regional site. The impact of the rehabilitation hospital, a reduction in acute care lengths of stay, will apparently be felt by all acute care hospitals throughout the region not just Oak Hill. There is no evidence to indicate that the combined impact of Healthsouth and Brooksville Regional on Oak Hill justifies the denial of the proposed relocation of Brooksville Regional. HMA's letter of intent and financial statements HMA's letter of intent indicated that the project costs would not exceed $40 million, but the CON project cost is $52 million. Since letters of intent are not required to include project costs, AHCA has taken the position that the error in the letter of intent is insignificant as long as the project was identified with sufficient specificity. AHCA received the audited financial statements for Hernando H.M.A., the applicant, but not separate audited financial statements for Brooksville Regional. Oak Hill's expert suggested that AHCA received inadequate information to determine the financial feasibility of the project. Hernando HMA's audited financial statement and Schedule 2, with its other financial commitments, demonstrated its ability to provide the funds. The separate financial schedules related to Brooksville Regional's operations, especially Schedules 7 and 8 provided the information necessary for AHCA to determine if the project is financially feasible. Hernando HMA has demonstrated that it met the letter of intent and application content requirements, and that, on balance, it meets the criteria to relocate and replace Brooksville Regional as proposed in CON Application No. 9478.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order approving CON Application No. 9478 for Hernando HMA to relocate and replace Brooksville Regional as proposed in the application. DONE AND ENTERED this 24th day of December, 2002, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 December, 2002. COPIES FURNISHED: James C. Hauser, Esquire Metz, Hauser & Husband, P.A. 215 South Monroe Street, Suite 505 Post Office Box 10909 Tallahassee, Florida 32302-2902 Stephen A. Ecenia, Esquire R. David Prescott, Esquire Thomas W. Conrad, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Post Office Box 551 Tallahassee, Florida 32302-0551 Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403
The Issue The issue is whether Charles C. Burlingame's request to purchase and upgrade prior regular service with the City of Panama City under the Senior Management Service Class should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this retirement dispute, Petitioner, Charles C. Burlingame (Burlingame), seeks to have certain prior service with Petitioner, City of Panama City (City), upgraded under the Senior Management Service Class (SMSC) so that his retirement benefits will vest at an earlier date. Respondent, Department of Management Services, Division of Retirement (Division), has denied the request on the ground that "the duties of [Burlingame's former] position were different from the duties of [his] current position," and that under these circumstances, Section 121.055(1)(i), Florida Statutes (1997), required that the request be denied. Burlingame was first hired by the City on February 14, 1994, as Human Resources Director/Safety. As such, he was one of approximately 16 City department directors. At that time, Burlingame was enrolled in the "regular" class of the Florida Retirement System (FRS). In 1998, the Legislature authorized local governments (as well as state agencies) who employed at least 200 individuals to designate an additional employee under the SMSC. Because the City employed that number of individuals, it was allowed to designate another employee for SMSC. Burlingame was selected as the employee, and he was promoted to a new position with the title Assistant City Manager/Human Resources/Safety Director. At the same time, his old position was abolished. In conjunction with his promotion, Burlingame prepared a job description for his new position. The old and new duties are described in the documents attached to Respondent's Exhibit 2. They reflect, at least on paper, that the functions and illustrative duties of the two positions are not identical. For example, in his new position, Burlingame is now in charge when the City Manager is absent from the City. He also assists the City Manager "in directing the overall operations of the City," as well as performing his former duties. According to Burlingame, however, these new duties account for no more than five percent of his total duties. The remainder coincide with the duties performed under his old position. Under the terms of the City's retirement system, the retirement benefits for a SMSC employee vest after 7 years of service, while a regular employee does not vest until after 10 years of service. Therefore, Burlingame wished to upgrade his prior service between February 14, 1994, and September 29, 1998, when he was changed to SMSC, since this would allow him to vest in fewer years. It would also allow him to accumulate more retirement points (2 per year) under the FRS for each year of service than he would have earned as a regular employee (1.6 per year). When Burlingame was approved for membership in the SMSC in October 1998, the City began processing an application with the Division on his behalf for the purpose of determining the "cost to upgrade past service to [SMSC] to 2-14-94." Because of a large backlog of work caused by Deferred Retirement Option Program applications, the Division was unable to act on Burlingame's request until the early fall of 1999. After the City made several inquiries concerning its pending request, a Division Benefits Administrator, David W. Ragsdale, wrote the City on September 15, 1999, and advised that "[s]ince the position Mr. Burlingame filled as Human Resources/Safety Director had different duties than the Assistant Manager/Human Resources/Safety Director, he is ineligible to upgrade because the position of Human Resources/Safety Director no longer exists." This was followed by another letter on November 4, 1999, which reconfirmed the earlier finding and offered Petitioners a point of entry to contest the proposed action. Petitioners then initiated this proceeding. There is no rule or statute which provides that if the job duties of a position upgraded from regular to SMSC do not remain the same, prior regular service cannot be upgraded. However, since the inception of the SMSC in 1987, the Division has consistently ascribed that meaning to the words "within the purview of the [SMSC]" in Section 121.055(1)(i), Florida Statutes (1997), and Rule 60S-2.013(2), Florida Administrative Code. Thus, if the new duties are "not within the purview" of the past regular service class, that is, they are different in any respect, the employee cannot purchase and upgrade the prior service. This interpretation of the statute and rule was not shown to be clearly erroneous or outside the range of possible interpretations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioners' request for an upgrade of Charles C. Burlingame's service under the Senior Management Service Class. DONE AND ENTERED this 21st day of March, 2000, in Tallahassee, Leon County, Florida. COPIES FURNISHED: DONALD R. ALEXANDER 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 21st day of March, 2000. A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Cecilia Redding Boyd Bryant & Higby, Chartered Post Office Box 860 Panama City, Florida 32402-0860 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is entitled to a 120.57(1) hearing although he failed to timely file a petition for an administrative hearing within twenty-one (21) days of his receipt of the final agency action letter.
Findings Of Fact The Respondent's final agency action letter was received by the Petitioner on December 11, 1990. The Respondent's final agency action letter concluded as follows: "This letter constitutes final agency action. If you do not agree with this decision, you may request an Administrative Hearing in accordance with Section 120.57, Florida Statutes, by filing a written Petition within 21 days of receipt of this letter. Enclosed is a copy of Rule Sections 28-5.111 and 28- 5.201, Florida Administrative Code, which outline the proper procedure. If you do not request such hearing within that 21-day period, then you shall have waived any right to a hearing in this matter." This was the only written notice that Petitioner received from the Respondent agency concerning his right to request a hearing to challenge the agency's action, or concerning the procedure to be followed in doing so. Copies of the referenced Florida Administrative Code sections were enclosed. The 21-day filing period for Petitioner was scheduled to end on January 2, 1991. Petitioner retained counsel for the purpose of seeking an administrative hearing to challenge the Respondent's proposed final agency action, and a petition was drafted. On December 31, 1990, the petition was ready to be transmitted to the Respondent. Counsel was uncertain whether the petition should be posted by regular mail, or by Express Mail in order to insure guaranteed delivery by January 2, 1991. The concern of Petitioner's counsel was whether the rules required posting or actual receipt of the petition during the 21-day filing period in order to insure his client's right to a hearing. Some time in the afternoon of December 31, 1990, counsel for Petitioner initiated a telephone call to an office in Tallahassee that he believed to be that of the general counsel for the Department of Administration, and asked to speak to an attorney. The woman answering the telephone advised that no attorney was presently available. Following inquiry concerning the purpose of the call, counsel for the Petitioner understood from the secretary that the 21- day filing requirement for a petition requesting an administrative hearing would be deemed satisfied by mailing, evidenced by postmark, within the applicable 21- day period. Counsel for Petitioner relied on this statement, and deposited the petition in the regular U.S. Mail prior to 5:30 P.M. on December 31, 1990. Counsel for Respondent did not call the Legal Office of the Division of Retirement where an administrative secretary and an attorney were on duty during the afternoon hours of December 31, 1990. The petition for administrative hearing filed by Petitioner was not received by the Respondent until January 14, 1991. The delay between the mailing of the Petition and its receipt is unexplained.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered granting an administrative hearing on the Petition filed by Petitioner, and dated December 31, 1990. DONE AND ENTERED this 23rd day of July, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 23rd day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: 2,3,4,5(in part),6,7,8,10,11. Rejected: 1(issue),5(in part-concllusion of law),6,9(irrelevant). Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,7. Rejected: paragraph 4(cumulative), 5(cumulative), 6(irrelevant). COPIES FURNISHED: Keith F. Roberts, Esquire 240 Plant Avenue, Suite B-308 Tampa, FL 33606 Burton M. Michaels, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 (904) 487-1230 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, FL 32399-1560 Larry Strong Secretary Department of Management Services 2737 Centerview Drive Knight Building, Ste. 307 Tallahassee, FL 32399-0950 Susan Kirkland Acting General Counsel Department of Management Services 2737 Centerview Drive Knight Building, Ste. 110 Tallahassee, FL 32399-0950
Findings Of Fact At all times relevant to this matter, Respondent, Paul Meloy, Sr. (Meloy), was Volunteer Fire Chief of the Fire Protection and Rescue District for Alva, Florida. As such, he was a "public officer" of an "agency" within the meaning of Sections 112.312(2) and 112.313(1), Florida Statutes. Meloy helped to establish a volunteer fire department in the rural community of Alva, Florida in 1973. Meloy was selected as the volunteer fire chief. In 1976, the Alva Fire Protection and Rescue Service District (District) was established. The firefighting equipment and vehicles were originally located in Meloy's garage, where he maintained an automotive repair shop. Meloy received a fixed reimbursement from the District each month for the use of his garage and for repair services which he rendered for the District. In approximately 1984, Meloy took a 40-hour volunteer firefighting course and became certified as a volunteer firefighter. Full-time firefighters were required to complete a 280-hour firefighting course to become certified as firefighters pursuant to Section 633.35, Florida Statutes. Meloy never took the 280-hour course and has never been a state certified fire fighter pursuant to Section 633.35, Florida Statutes. In 1988, the District joined the State of Florida Retirement System (FRS). At that time the District employed four full-time firefighters and a part-time secretary. Meloy worked part-time as the administrator for the District, but did not draw a salary but continued to receive remuneration in the form of the monthly reimbursement for expenses. The full-time firefighters were enrolled in the FRS in 1988 as special risk members, which would allow them to retire at an earlier age than regular members of the FRS and with greater benefits. In June, 1990, Meloy was interviewed by an investigator from the Florida Commission on Ethics (Commission) concerning an Ethics Complaint unrelated to the complaint filed in the instant case. Meloy told the investigator that he was not receiving a salary from the District, but that he was receiving reimbursement for expenses. Additionally, he told the investigator that he was not certified to be a full-time professional firefighter. In 1990, Connie Bull, was employed as a part-time secretary for the District. Until the District received a letter from the Commission explaining that part-time employees should be enrolled in the retirement system, neither Ms. Bull nor Meloy was aware that part-time employees filling established positions were to be enrolled in the retirement system from the date of their employment. Ms. Bull called the Division of Retirement (Division) which is the agency responsible for administering the FRS. She talked with Ira Gaines concerning the requirement for the enrollment of part-time employees. Ira Gaines is the retirement services representative with the Division who is responsible for determining eligibility for members in the special risk plan of the FRS. Neither Ms. Bull nor Mr. Gaines recalls any discussion they may have had concerning certification requirements for enrollment in the special risk class. Ms. Bull obtained enrollment forms from the Division. She and Meloy filled out and signed the enrollment forms. The form Ms. Bull used for her enrollment was for regular membership. The form used by Meloy was for enrollment in the special risk plan. On September 22, 1990, Meloy represented on his enrollment form that he was a firefighter certified, or required to be certified, by the Bureau of Fire and Training and that he was the supervisor or command officer of special risk members whose duties included on the scene fighting of fires. Additionally, Meloy in his capacity as fire chief certified that his position meets the criteria for special risk membership in accordance with Section 121.0515, Florida Statutes, and Florida Retirement System Rules, and he was certified or required to be certified in compliance with Section 943.14 or Section 633.35, Florida Statutes. When he was completing the enrollment form, he told Ms. Bull that he knew that he was not certified. Meloy testified in his defense that when he signed the application form that he knew that he was not a certified full-time firefighter and that he knew that special risk members were required to be certified. Meloy stated that by signing the application he was acknowledging that special risk members were required to be certified not that he was certified. Having judged the credibility of Meloy, I find that Meloy's testimony is not credible. Ms. Bull sent the executed enrollment forms to the Division on October 17, 1990, with a cover letter stating that she and Meloy had worked for the District for some time on a part-time basis, but were unaware that as part-time employees they should have previously have been enrolled in the retirement system. In either 1990 or 1991, after he had executed the enrollment form, Meloy began receiving a salary from the District instead of reimbursement for expenses. In January, 1991, the District purchased back retirement benefits for Meloy from August, 1985 through June, 1988 for $4,207.97. Sometime after the enrollment forms were submitted and Meloy had been enrolled in the FRS, Ira Gaines and Meloy discussed Meloy's certification. Meloy told Mr. Gaines that he had taken a course which certified him as a firefighter. Meloy did not tell Mr. Gaines that he was a firefighter certified pursuant to Section 633.35. Meloy sent Mr. Gaines a copy of a letter dated September 16, 1991, from the Department of Insurance which stated that Meloy had held a Certificate of Competency entitled Volunteer Basic since July 11, 1984. Meloy did not qualify for special risk membership in the FRS. In May, 1992, Meloy was interviewed by an investigator for the Commission concerning the allegations in the Ethics Compliant which had been filed against Meloy. Meloy told the investigator that he knew that the enrollment application which he signed required that the employee had to have taken the 280-hour course to be eligible for the special risk class. By letter dated June 29, 1992, the Division notified Meloy that his membership in the FRS and the Florida Retirement Special Risk Class was being terminated. The grounds for termination were that Meloy had been receiving payments for expenses and not compensation and that he was not certified in compliance with Section 633.35, Florida Statutes. Meloy did not appeal the Division's decision. If Meloy had been allowed to remain as a special risk member in the FRS, he would have been eligible to draw annually at least $2,024.92 in special risk benefits beginning as early as August, 1995. There was no evidence presented that established that Mr. Meloy had anything to do with Assistant Volunteer Fire Chief Brent Golden's application, membership, or retention of any benefits from the FRS and the parties so stipulated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Paul Meloy, Sr. violated Section 112.313(6), Florida Statutes, as it relates to the allegations concerning his retirement benefits but not as to the retirement benefits of the Assistant Fire Chief, imposing a civil penalty of $2,024.92, and issuing a public censure and reprimand. DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 8th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5984EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact Paragraph 1: Accepted. Paragraph 2-4: Accepted in substance. Paragraph 5: Accepted. Paragraphs 6-7: Rejected as unnecessary detail. Paragraphs 8-12: Accepted in substance. Paragraph 13: The first, third, and fourth sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. In practice both Mr. Tiner and Meloy supervised the firefighters during on-the-scene fighting of fires. The last sentence is rejected as irrelevant to the extent that Meloy listed all the duties that he was actually performing for the fire department. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. There was no evidence presented to show that Meloy knew that the Commissioners and not he should have executed the enrollment form on behalf of the employer. Paragraphs 16-17: Rejected as subordinate to the facts actually found. Paragraph 18: Rejected to the extent that it implies that Meloy took no steps to seek help from the Division. He did direct Ms. Bull to call the Division which she did. Paragraph 19: Rejected as subordinate to the facts actually found. Paragraphs 21-22: Accepted in substance. Paragraph 23: Accepted in substance except as to the amount. 13. Paragraphs 24-25: Rejected as constituting argument. Respondent's Proposed Findings of Fact 1. Paragraph 1: Rejected as constituting a conclusion of law. COPIES FURNISHED: Stuart F. Wilson-Patton Advocate For the Florida Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 John H. Shearer, Jr., P.A. Post Office Box 2196 Fort Myers, Florida 33902-2196 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahasee, Florida 32317-5709
Findings Of Fact 1. On April 18, 2014, the Board issued an Invitation to Bid (‘2014 ITB”) for holding pond and related grounds maintenance work. The 2014 ITB specifically advised bidders that the Board reserved the right to contract “all or none, or by group to responsible and responsive bidder(s) determined to be the most advantageous to the District, taking into consideration price, product quality and other requirements as set forth in this ITB.” The language in the 2014 ITB gives the Board the discretion to award the contract to one bidder, several bidders or no bidders. 2. The 2014 ITB specifically advised bidders of their right to challenge the terms and conditions of the ITB. Petitioner, Mark's Lawn Maintenance, Inc., did not challenge the terms or conditions of the 2014 ITB. 3. The 2014 ITB specifically informed bidders that local and small business certification preferences were available to bidders, where applicable. Petitioner was given a 3% local preference for having a business in an adjoining county. Val’s Lawncare, Inc. ("Val's”) received a 5% small business certification preference. Applying the discount, Val's was the lowest bidder. 4. In 2007 and 2010, the Board issued ITBs for holding ponds and grounds maintenance services, and, each time, the contract was awarded to multiple bidders. 5. The 2014 ITB was awarded in accordance with the terms and conditions set forth therein, and not any prior practice or any language from prior ITBs.
Conclusions This matter came upon before the Board for entry of a Final Order upon entry of an Order Relinquishing Jurisdiction by June McKinney, an Administrative Law Judge of the Florida Division of Administrative Hearings, and, having reviewed the same, and ail other matters of record, and being otherwise advised in the premises, the Board finds and concludes as follows:
